ATTACHMENT A - SAMPLE PRICE AGREEMENT.pdf

OregonBuys Bid Number S-13700-00004874 for Parentage Testing Services

DOJ PA#23253 Page 1 of 55

ATTACHMENT A — SAMPLE PRICE AGREEMENT

STATE OF OREGON

PRICE AGREEMENT NO. 23253

FOR

PARENTAGE TESTING SERVICES

BETWEEN

DEPARTMENT OF JUSTICE/DIVISION OF CHILD SUPPORT

Agency Contract Administrator: Kimberly Holst

Address: PO Box 14680, Salem Oregon 97309

Phone: (541) 349-4388

Email: Kimberly.Holst@doj.state.or.us

AND

[CONTRACTOR NAME]

Contract Administrator: [Name, Title]

Address: [Street Address]

Phone: [Phone]

Email: [Email] mailto:Kimberly.Holst@doj.state.or.us

DOJ PA#23253 Page 2 of 55

TABLE OF CONTENTS

AGREEMENT

1.1 PARTIES

1.2 DEFINITIONS

1.3 TERM OF AGREEMENT

1.4 PERFORMANCE OF SERVICES

1.5 ORDERING INSTRUMENTS

1.6 INSURANCE

1.7 MISCELLANEOUS

STANDARD TERMS FOR CONTRACTS UNDER THIS AGREEMENT

2.1 CONTRACT DOCUMENTS; ORDER OF PRECEDENCE

2.2 PAYMENT

2.3 FEDERAL FUNDS

2.4 OVERDUE CHARGES

2.5 PAYMENT ADDRESS

2.6 INVOICES

2.7 PRICES

2.8 REPRESENTATIONS AND WARRANTIES

2.9 COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS

2.10 FOREIGN CONTRACTOR

2.11 TIME IS OF THE ESSENCE

2.12 FORCE MAJEURE

2.13 FUNDS AVAILABLE AND AUTHORIZED

2.14 INDEPENDENT CONTRACTOR STATUS; RESPONSIBILITY FOR TAXES AND WITHHOLDING

2.15 INDEMNIFICATION

2.16 EVENTS OF DEFAULT

2.17 REMEDIES

2.18 TERMINATION

2.19 ACCESS TO RECORDS

2.20 NOTICES

2.21 ORDERING ACKNOWLEDGEMENTS

2.22 GOVERNING LAW

2.23 VENUE; CONSENT TO JURISDICTION

2.24 SURVIVAL

2.25 SEVERABILITY

2.26 ASSIGNMENTS, SUBCONTRACTS, AND SUCCESSORS

2.27 MERGER CLAUSE; AMENDMENT; WAIVER

2.28 ASSIGNMENT OF ANTITRUST RIGHTS

2.29 OREGON FALSE CLAIMS

2.30 PAY EQUITY

CONFIDENTIALITY AND NON-DISCLOSURE

3.1 CONFIDENTIAL INFORMATION

3.2 NON-DISCLOSURE

3.3 NON-DISCLOSURE AGREEMENT

3.4 CONFIDENTIALITY POLICIES

3.5 BREACH OF SECURITY AND RESPONSE

3.6 INJUNCTIVE RELIEF

3.7 PUBLICITY

SIGNATURE OF CONTRACTOR’S DULY AUTHORIZED

REPRESENTATIVE

SIGNATURES

DOJ PA#23253 Page 3 of 55

LIST OF EXHIBITS

EXHIBIT A STATEMENT OF WORK AND PRICING

EXHIBIT B PURCHASE ORDER FORM

EXHIBIT C INSURANCE REQUIREMENTS

EXHIBIT D FEDERAL TERMS AND CONDITIONS

EXHIBIT E INDEPENDENT CONTRACTOR CERTIFICATION

EXHIBIT F CONTRACTOR AUTHORIZED REPRESENTATIVES

DOJ PA#23253 Page 4 of 55

This Price Agreement (“Agreement’) is between the State of Oregon, acting by and through the Department of Justice (“Agency”) and [Contractor’s name], a [insert state of incorporation] (“Contractor”). The Joint Cooperative Procurement Group Participants identified under Section 1, have the authority to access the Services under this Price Agreement as outlined below.

AGREEMENT

1.1 PARTIES

The only parties to this Agreement are the Agency, Participants and Contractor.

1.2 DEFINITIONS

For the purposes of this Price Agreement, capitalized words are defined in OAR 125-246-0110 or as defined below.

“Administrator” means a governmental body that solicits and establishes the Original Price Agreement for Supplies and Services in a Cooperative Procurement. “Administrator” means the Chief Procurement Officer or subject to the approval of the Chief Procurement Officer: an Agency, another Public Body within the state of Oregon, or a governmental body outside the state of Oregon. An Administrator has the same rights and responsibilities as an Administering Contracting Agency under ORS 279A.200 through 279A.225. For this Price Agreement, the Administrator is the Department of Justice, Division of Child Support.

“Agreement” or "Price Agreement" means this agreement between Contractor and Agency under which Contractor agrees to hold prices, terms and conditions firm for a specified period of time for the benefit of Agency and Participants.

“Authorized Purchaser” means the Agency and Participants identified under the Price Agreement.

“Business Day” or “Business Hours” means Monday through Friday, 8:00 a.m. to 5:00 p.m., Pacific Time, excluding State of Oregon holidays and business closure days.

“Calendar Day” means contiguous days.

"Contract" means the entire agreement between Contractor and Authorized Purchaser, comprised of a signed Purchase Order and this Price Agreement, including any exhibits and amendments.

"Cooperative Procurement Group" means:

(i) A group of Agencies, Public Bodies within the state of Oregon or any governmental body outside the state of Oregon, separately or in any combination;

(ii) Approved by the Chief Procurement Officer; and

(iii) Joined through an intergovernmental agreement for the purposes of facilitating a Cooperative Procurement.

DOJ PA#23253 Page 5 of 55

(iv) For this Price Agreement, the Cooperative Procurement Group is the Oregon Department of Justice, Oregon Department of Human Services (“ODHS”), the Oregon County District Attorney Offices (“DA”), and Oregon Tribal nations (“Tribes”).

"Correctional Facilities" means city and county jails, state and federal prisons, and work release centers.

"Courtesy Draw" means parentage testing coordinated by Contractor upon request of but not limited to parentage testing laboratories or another state.

"Full Service" means that specimens from all required parties have been collected and analysis has been completed, compared and the results provided to the Agency or Participant.

"Goods" means the individual product items described in Exhibit A.

"Interstate" means in the United States or its Territories outside Oregon.

"International" means outside the United States or its Territories.

"Joint Cooperative Procurement" means a Cooperative Procurement that identifies:

(i) The Participants or the Cooperative Procurement Group; and

(ii) The contract requirements or estimated contract requirements for the Original Contract.

"Non-Standard Case" - means a case in which a specimen cannot be obtained from the mother or the alleged father, but parentage evaluation may still be accomplished either by testing close blood relatives of the parties or by obtaining tissue specimens other than blood for purposes of genetic testing. Non-standard also includes obtaining specimens for adults in custody in Correctional Facilities, military members, rush requests, and international cases.

"Partial Collection, or Partial Case" means any incomplete case where specimens from one or more parties have yet to be collected and analysis and comparison has not been completed and provided to the Requestor.

“Participant” means a governmental body that procures Goods, Services, or Public Improvements from a Contractor based on the Price Agreement established by an Administrator in a Cooperative Procurement. A Participant has the same rights and responsibilities as a Participating or Purchasing Contracting Agency under ORS 279A.200 through 279A.225.

(i) For this Price Agreement, Participants are the Oregon Department of Human Services (“ODHS”), the Oregon County District Attorney Offices (“DA”), and Oregon Tribal nations (“Tribes”).

DOJ PA#23253 Page 6 of 55

"Purchase Order" means the ordering instrument, as described in Exhibit B, that is submitted by the Agency or Participant to the Contractor which, together with the Price Agreement creates a contract between Contractor and Agency or Participant, for the purchase of the Services described in the Purchase Order and Exhibit A of this Price Agreement.

“Quality Photo” means a photograph or copy of a photo identification that allows the Authorized Purchaser to distinguish facial features.

"Requestor" means the person who requests the test from the Contractor.

"Services" means the services described in Exhibit A to be performed by Contractor for the provision of specimen collection sites and staff, control of the chain of evidence, secure transport of specimens, and provision of analysis and report results.

"Specimen Collector or Collector" means a qualified individual, who is an employee or subcontractor of Contractor, who can perform the required type of specimen collection, whether done by an invasive or non-invasive method, with a minimum amount of pain or discomfort to the person from whom the specimen is being taken.

"Standard Parentage Evaluation Case or Standard Case" means a case in which specimens are collected from a mother, the mother's natural child, and an alleged father for the purpose of determining the likelihood or probability that the alleged father is the biological father of the child.

"State" means the State of Oregon.

1.3 TERM OF AGREEMENT

The initial term of this Agreement begins on the date this Agreement has been signed by Agency and Contractor and all required approvals have been obtained (the “Effective Date”) and ends on 06/01/2026 unless sooner terminated or extended as provided in this Agreement. Agency has the option to extend this Agreement for additional term(s) not to extend past May 31, 2033.

Agency must send Contractor a written notice exercising its option to extend no later than 60 Calendar Days before the expiration of the then-current term. The initial term and all extension terms are collectively referred to as the “Term” of this Agreement.

1.4 PERFORMANCE OF SERVICES.

Contractor shall perform the Services and deliver to the Participants the deliverables (“Deliverables”) set forth in Exhibit A, the Statement of Work (the “Statement of Work”). The Statement of Work includes the delivery schedule for the Deliverables and Services. Contractor shall perform the Services in accordance with the terms and conditions of this Agreement.

1.5 ORDERING INSTRUMENTS

1.5.1 A Contract created by an ordering instrument consists only of the terms specified or required by this Agreement. Additionally, different or conflicting terms and conditions in any Purchase

DOJ PA#23253 Page 7 of 55

Order(s) or any other ordering instrument of either an Authorized Purchaser or the Contractor shall not vary the terms of this Agreement. Unless otherwise expressly agreed, Contractor’s online ordering terms and conditions will not change the terms and conditions of this Agreement or any Contract.

1.5.2 Subject to the provisions of this Agreement, Contractor shall accept ordering instruments from Authorized Purchaser that comply with the provisions of this Agreement until this Agreement terminates. Contractor may, but is not required to, accept an ordering instrument requesting a delivery schedule less than any minimum lead time, if any, specified in Exhibit A.

1.5.3 An ordering instrument is deemed accepted by Contractor unless Contractor rejects an ordering instrument within 5 Business Days after it is received. Contractor may reject an ordering instrument:

i) using the same means as were used to deliver the ordering instrument, or ii) by e-mail or facsimile if that information is evident on the ordering instrument. Contractor shall specify the reason(s) for rejection.

1.5.4 Accepted ordering instruments establish separate Contracts between Authorized Purchaser and Contractor and include the terms set forth in Sections 2 and 3. As used in the Contracts, “Price Agreement” means this Agreement.

1.5.5 Nothing in this Agreement obligates any Authorized Purchaser to place any ordering instrument.

1.5.6 Contractor shall reject an ordering instrument that does not meet the requirements of this Agreement.

1.6 INSURANCE

Contractor shall obtain insurance coverage as specified in Exhibit C and shall maintain the insurance throughout the term of this Agreement and all Contracts.

1.7 MISCELLANEOUS

1.7.1 Counterparts

This Agreement may be executed in two or more counterparts, each of which is an original, and all of which together are deemed one and the same instrument, notwithstanding that all parties are not signatories to the same counterpart.

1.7.2 Entire Agreement

This Agreement, together with the attached exhibits, constitutes the entire agreement between the parties and merges all prior and contemporaneous communications with

DOJ PA#23253 Page 8 of 55 respect to the subject matter.

1.7.3 Intended Beneficiaries

Authorized Purchasers and Contractor are the only parties to this Agreement and are the only parties entitled to enforce its terms. Nothing in this Agreement gives, is intended to give, or will be construed to give or provide, any benefit or right, whether directly, indirectly, or otherwise, to third persons unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Agreement.

1.7.4 Certification of Compliance with Tax Laws

By signature on this Agreement, Contractor certifies that it has complied with the tax laws of this State and the applicable tax laws of any political subdivision of this State. Contractor shall, throughout the duration of this Agreement and any Contract and any extensions thereof, comply with all tax laws of this State and all applicable tax laws of any political subdivision of this State. For the purposes of this Section, “tax laws” includes: (i) All tax laws of this State, including but not limited to ORS 305.620 and ORS chapters 316, 317, 318 and 319; (ii) Any tax provisions imposed by a political subdivision of this State that apply to Contractor, to Contractor’s property, operations, receipts, or income, or to Contractor’s performance of or compensation for any work performed by Contractor; (iii) Any tax provisions imposed by a political subdivision of this State that apply to Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor; and (iv) Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions.

Any failure to comply with the provisions of this subsection 1.8.11 constitutes a material breach of this Agreement and any Contract. Any failure to comply entitles Agency to terminate this Agreement or Contract, as applicable and to pursue and recover any and all damages that arise from the breach and the termination of this Agreement or Contract, and to pursue any or all of the remedies available under this Agreement or Contract, at law, or in equity, including but not limited to:

• Termination of this Agreement or Contract, as applicable, in whole or in part;

• Exercise of the right of setoff, and withholding of amounts otherwise due and owing to Contractor, in an amount equal to State’s or Agency’s setoff right, without penalty;

and

• Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief. Agency or Agency may recover any and all damages suffered as the result of Contractor's breach of this Agreement or Contract, including but not limited to direct, indirect, incidental and consequential damages, costs of cure, and costs incurred in securing replacement Goods or Services.

1.7.5 Contractor shall, to the maximum extent economically feasible in the performance of this Agreement, use recycled products where possible. This includes paper, “PETE” and other materials as defined in ORS 279A.010 [1][gg], [hh] and [ii].

1.7.6 Contractor shall retain, maintain, and keep accessible all records

DOJ PA#23253 Page 9 of 55 relevant to this Agreement (the “Records”) for a minimum of six

(6) years, or such longer period as may be required by applicable law following expiration or termination of the Agreement, or until the conclusion of any audit, controversy or litigation arising out of or related to the Contract, whichever date is later. Financial Records will be kept in accordance with Generally Accepted Accounting Principles (GAAP). During the record-retention period established in this Section, Contractor shall permit Agency and its duly authorized representatives, and the federal government access to the Records at a reasonable time and place for purposes of examination and copying.

1.7.7 Performance Evaluations

Agency may conduct evaluations of Contractor’s performance during the term of this Agreement. Agency will compile and maintain completed evaluations, which will become a written record of Contractor’s performance. Agency may also maintain as part of that written record information obtained from Contractor during an exit interview following Agreement termination. Agency may provide copies of any documents in the written record to the Contractor and third parties upon request. Agency may use performance evaluations in any way it deems necessary, in its sole discretion, including but not limited to making responsibility determinations and decisions to award contracts.

1.7.8 Reporting

This Agreement and Contract(s) of Authorized Purchasers will be reported to the Oregon Department of Revenue. The Department of Revenue may take any and all actions permitted by law relative to the collection of taxes due to the State of Oregon or a political subdivision, including (i) garnishing Contractor’s compensation under this Agreement or Contract or (ii) exercising a right of setoff against Contractor’s compensation under this Agreement or Contract for any amounts that may be due and unpaid to the State of Oregon or its political subdivisions for which the Department of Revenue collects debts.

STANDARD TERMS FOR CONTRACTS UNDER THIS

AGREEMENT

2.1 CONTRACT DOCUMENTS; ORDER OF PRECEDENCE

The Contract consists of the ordering instrument and the provisions in Sections 2 and 3 of this Agreement. In the event of a conflict between the ordering instrument and provisions in Sections 2 and 3, the provisions in Sections 2 and 3 take precedence.

2.2 PAYMENT

Contractor shall look solely to the Authorized Purchaser for payment of all amounts that may be due under the Contract with that specific Authorized Purchaser. Subject to Authorized Purchaser’s acceptance of Services, payment is due from Authorized Purchaser within 45 Calendar Days after the date of the invoice.

DOJ PA#23253 Page 10 of 55

2.3 FEDERAL FUNDS

2.3.1 When specified below that Authorized Purchaser’s payments to Contractor under this Agreement will be paid in whole or in part by funds received by Authorized Purchaser from the United States Federal Government. If so specified then Contractor, by signing this Agreement, certifies that neither it nor its employees or subcontractors who will perform the Services are not currently employed by an agency or department of the federal government.

Payments will will not be made in whole or in part with federal funds

2.3.2 In accordance with the State Controller’s Oregon Accounting Manual, policy 30.40.00.102, Agency has determined that:

Recipient is a subrecipient; OR Recipient is a contractor.

Catalog of Federal Domestic Assistance (CFDA) #(s) of federal funds to be paid through this Agreement: Program No 93.563 and Program No. 93.658.

2.4 OVERDUE CHARGES

At Contractor’s option, it may assess overdue account charges to Authorized Purchaser up to a maximum rate of two-thirds of one percent per month (8% per annum) or the maximum allowed by law.

2.5 PAYMENT ADDRESS

Authorized Purchaser must send payments to the address specified in the Contractor’s invoice.

2.6 INVOICES

Each Authorized Purchaser retains full responsibility for payment of Services it receives.

Contractor will provide a monthly invoice to each Authorized Purchaser for the previous month’s Services. The invoice must be in an agreed upon, sortable Excel format. Electronic invoices must be available for each Contract. A hard copy of the invoice shall be mailed to the Authorized Purchaser upon request. A billing summary cover sheet and detailed invoice for each Authorized Purchaser’s office shall be contained in a single document. Contractor’s invoices shall include all of the following:

2.6.1 Billing Summary cover sheet

2.6.1.1 Authorized Purchaser name

2.6.1.2 Contractor federal tax ID number

2.6.1.3 Price Agreement number

DOJ PA#23253 Page 11 of 55

2.6.1.4 Contractor payment address

2.6.1.5 Billing period

2.6.1.6 Total dollar amount billed per office

2.6.1.7 Total dollar amount invoiced.

2.6.2 Detailed invoice

2.6.2.1 Authorized Purchaser office name

2.6.2.2 Office account number

2.6.2.3 Full name of each person tested (last, first, middle name and suffix)

2.6.2.4 Authorized Purchaser’s specified case number

2.6.2.5 Contractor case number

2.6.2.6 Number of days from when the Specimen Collection request was received to when the Collection was scheduled

2.6.2.7 Number of days from the schedule date to date the Specimen was collected

2.6.2.8 Number of days from when the Specimen was collected to the delivery of the result/analysis to Authorized Purchaser

2.6.2.9 Amount billed for each collection

2.6.2.10 Total number of collections billed

2.6.2.11 Adjustments with explanations, such as exceeding timelines in Exhibit A

2.6.2.12 Total dollar amount invoiced

2.7 PRICES

Contractor represents all prices for Services under the Contract are equal to or better than the prices listed in Exhibit A of the Agreement.

2.8 REPRESENTATIONS AND WARRANTIES

2.8.1 Contractor’s General Representations and Warranties.

Contractor represents and warrants to Agency that:

2.8.1.1 Contractor has the power and authority to enter into and perform this

DOJ PA#23253 Page 12 of 55

Agreement;

2.8.1.2 Contractor has the skill and knowledge possessed by well-informed members of its industry, trade or profession and Contractor shall apply that skill and knowledge with care and diligence to perform the Services in a professional manner and in accordance with the highest standards prevalent in Contractor’s industry, trade or profession;

2.8.1.3 The Services and each Deliverables delivered by Contractor pursuant to the Services will materially comply with any service descriptions, specifications, standards or requirements set forth in this Agreement;

2.8.1.4 This Agreement, when executed and delivered, is a valid and binding obligation of Contractor enforceable in accordance with its terms;

2.8.1.5 Contractor shall, at all times during the term of this Agreement, be qualified, professionally competent, and duly licensed to perform the Services;

2.8.1.6 Contractor prepared its proposal related to this Agreement, if any, independently from all other proposers, and without collusion, fraud, or other dishonesty; and

2.8.1.7 Contractor (to the best of Contractor’s knowledge, after due inquiry), for a period of no fewer than six calendar years preceding the Effective Date, faithfully has complied with:

2.8.1.7.1 All tax laws of this state, including but not limited to ORS 305.620 and ORS chapters 316, 317, and 318;

2.8.1.7.2 Any tax provisions imposed by a political subdivision of this state that applied to Contractor, to Contractor’s property, operations, receipts, or income, or to Contractor’s performance of or compensation for any work performed by Contractor;

2.8.1.7.3 Any tax provisions imposed by a political subdivision of this State that applied to Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor;

2.8.1.7.4 Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions; and

2.8.1.7.5 Contractor has no undisclosed liquidated and delinquent debt owed to the State or any department or agency of the State.

2.8.2 Officer Status, Insurance

Contractor represents and warrants that it is not an “officer,” “employee,” or “agent” of Agency, as those terms are used in ORS 30.265. Contractor represents and warrants that

DOJ PA#23253 Page 13 of 55

Contractor has obtained and will maintain during the term of this Contract all insurance required by the Agreement.

2.8.3 Debt Owed

Contractor represents and warrants that it has no undisclosed liquidated and delinquent debt owed to the State or any agency, board, commission, department or division of the State.

2.8.4 State Premises.

Contractor and Contractor staff shall comply with all policies, rules, procedures, and regulations established by Agency and the State for access to and activities in and around premises controlled by Agency or any other Authorized Purchaser.

2.8.5 Software License

To the extent the Goods or Services contain software, Contractor hereby grants to Agency, or shall ensure that Agency receives, a perpetual, irrevocable, non-exclusive, non-transferable, royalty-free license to use the operating system software (and documentation and associated manuals) (the “Software”) for the Goods.

In the event the Goods include third party intellectual property and unless otherwise agreed, Contractor shall ensure that Agency receives a license to use the software sufficient to fulfill the business objectives, requirements and specifications identified in this Agreement.

Agency shall have the right to review the proposed license agreement and negotiate terms with the licensor; upon agreement to the terms, Agency will be bound by such license agreement. If Agency and licensor cannot reasonably agree to terms, Agency, in its sole discretion, may return the Goods to Contractor (without incurring any termination liability), and Contractor shall provide a full refund including any shipping and handling charges.

2.9 COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS

Contractor shall comply with all federal, state and local laws, regulations, and ordinances applicable to this Agreement as they may be adopted or amended from time to time.

2.10 FOREIGN CONTRACTOR

If the amount of the Contract exceeds ten thousand dollars ($10,000), and if Contractor is not domiciled in or registered to do business in the State, Contractor shall promptly provide to the Oregon Department of Revenue all information required by that Department relative to the Contract. Agency may withhold final payment under the Contract until Contractor has met this requirement.

2.11 TIME IS OF THE ESSENCE

Time is of the essence for Contractor’s performance obligations under this Agreement.

DOJ PA#23253 Page 14 of 55

2.12 FORCE MAJEURE

Neither Agency nor Contractor shall be held responsible for delay or default caused by an event which is beyond the party’s reasonable control. Contractor shall, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon the cessation of the cause, diligently pursue performance of its obligations under this Agreement. Agency may terminate this Agreement upon written notice to Contractor after reasonably determining that such delay or default will likely prevent successful performance of the Agreement.

2.13 FUNDS AVAILABLE AND AUTHORIZED

If Authorized Purchaser is an agency of the State of Oregon, payment obligations under this Agreement are conditioned upon Authorized Purchaser’s receiving funding, appropriations, limitations, allotments, or other expenditure authority sufficient to allow agency, in the exercise of its reasonable administrative discretion, to meet its payment obligations under this Agreement At the time the ordering instrument was issued, agency had sufficient funds available and authorized to make payments under this Agreement.

2.14 INDEPENDENT CONTRACTOR STATUS; RESPONSIBILITY FOR TAXES AND WITHHOLDING

2.14.1 Contractor is an independent contractor. Although Agency reserves the right (i) to determine (and modify) the delivery schedule for the Services and (ii) to evaluate the quality of completed performance, Agency cannot and will not control the means or manner of Contractor’s performance. Contractor is responsible for determining the appropriate means and manner of performing any obligations required by this Agreement.

2.14.2 Contractor is responsible for all federal and state taxes applicable to compensation or payments paid to Contractor under this Agreement and, unless Contractor is subject to backup withholding, Authorized Purchaser will not withhold from such compensation or payments any amount(s) to cover Contractor’s federal or state tax obligations. Contractor is not eligible for any social security, unemployment insurance or workers’ compensation benefits from compensation or payments paid to Contractor under this Agreement, except as a self-employed individual.

2.15 INDEMNIFICATION

2.15.1 Contractor shall defend, save, hold harmless, and indemnify Authorized Purchaser, the State and their officers, employees and agents from and against all third party claims, suits, actions, proceedings, losses, damages, statutory penalties, liabilities, awards and costs of every kind and description (including reasonable attorney’s fees and expenses at trial, on appeal and in

DOJ PA#23253 Page 15 of 55 connection with any petition for review) (collectively, “Claim”) which may be brought or made against any Authorized Purchaser, the State, or their officers, employees or agents, arising out of or related to (i) any personal injury, death or property damage caused by any defect in the Services or any alleged act, omission, error, fault, mistake or negligence of Contractor, its employees, agents, related to this Price Agreement, (ii) any act or omission by Contractor that constitutes a material breach of this Agreement, including without limitation any breach of warranty, or (iii) the infringement of any patent, copyright, trade secret or other proprietary right of any third party by delivery or use of the Goods or Services. Authorized Purchaser or State shall promptly notify Contractor in writing of any claim of which Authorized Purchaser or State becomes aware. Contractor’s obligation under this section shall not extend to any Claim primarily caused by (i) the negligent or willful misconduct of Authorized Purchaser, or

(ii) Authorized Purchaser’s modification of Goods or Services without Contractor’s approval and in a manner inconsistent with the purpose and proper usage of such Goods or Services.

2.15.2 The Oregon Attorney General must give written authorization to any legal counsel purporting to act in the name of, or represent the interests of, the State or its officers, employees and agents prior to such action or representation. Further, the State, acting by and through its Department of Justice, may assume its own defense, including its officers, employees and agents, at any time when, in the State’s sole discretion, it determines (i) proposed counsel is prohibited from the particular representation contemplated; (ii) Counsel is not adequately defending or able to defend the interests of the State, its officers, employees or agents;

(iii) important governmental interests are at stake; or (iv) the best interests of the State are served thereby. Contractor’s obligation to pay for all costs and expenses shall include those incurred by the State in assuming its own defense and its officers, employees, or agents under (i) and (ii) above.

2.16 EVENTS OF DEFAULT

2.16.1 By Contractor

Contractor will be in default of the provisions of a Contract if:

• Contractor institutes or has instituted against it insolvency, receivership or bankruptcy proceedings, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis;

• Contractor has undisclosed liquidated and delinquent debt owed to the State or any agency, board, commission, department or division of the State; or

• Contractor no longer holds a license or certificate that is required for Contractor to

DOJ PA#23253 Page 16 of 55 perform Contractor’s obligations under this Price Agreement; or

• Contractor fails to comply with its obligations in Section 2.26, Prompt Payment, and has not cured the non-performance within thirty (30) Calendar Days of Agency’s written notice to cure.

• Contractor violates any provision, covenant, warranty, obligation or certification or fails to perform under this Price Agreement, provided however that Contractor may cure the default within the period specified in Agency’s notice of default when Agency determines the default is curable by Contractor.

2.16.2 By Authorized Purchaser

Authorized Purchaser will be in default of a Contract if:

• Authorized Purchaser fails to pay Contractor any amount pursuant to the terms of this Price Agreement, and Authorized Purchaser fails to cure such failure within ten

(10) Business Days after delivery of Contractor’s notice or such longer period as Contractor may specify in such notice; or

• Authorized Purchaser violates any provision, covenant, warranty, or obligation or fails to perform under this Contract and such breach is not cured within ten (10) Business Days after delivery of Contractor’s notice of breach or such longer period as Contractor may specify in such notice.

2.17 REMEDIES

2.17.1 Agency’s Remedies

If Contractor is in default under Section 2.16.1, in addition to the remedies afforded elsewhere in this Price Agreement, Authorized Purchaser may recover any and all damages suffered as the result of Contractor’s breach, including but not limited to direct, indirect, incidental and consequential damages, as provided in ORS 72.7110 to 72.7170. Authorized Purchaser may, at its option, pursue any or all of the remedies available to it under this Contract and at law or in equity, including, but not limited to:

• Termination of the Contract as provided in Section 2.18; or

• Withholding all monies due for invoiced Services that Contractor is obligated but has failed to deliver or perform within any scheduled completion dates or has performed inadequately or defectively; or

• Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief including, but not limited to, temporary suspension of work or permanent work stoppage until such relief has been restored to the satisfaction of the Authorized Purchaser; or

• Undertaking collection by administrative offset, or garnishment if applicable, of all monies due for Services to recover liquidated and delinquent debt owed to the State or any department or agency of the State. Offsets or garnishment may be initiated only after the Contractor has been given: i) written notice of the type and amount of the debt, the intention of the State to use administrative offset or garnishment to collect the debt, and an explanation of the debtor's rights under applicable law; and

DOJ PA#23253 Page 17 of 55

ii) the opportunity to make a written agreement to repay the debt; or

• Exercise of its right of setoff, and withholding of monies otherwise due and owing in an amount equal to Authorized Purchaser’s setoff without penalty to Authorized Purchaser.

2.17.2 Contractor’s Remedies

If Authorized Purchaser terminates a Contract, or if Authorized Purchaser is in default under Section 2.16.2 and whether or not Contractor elects to exercise its right to terminate this Contract under Section 2.18.3, Contractor’s sole remedy is: (a) A claim against Authorized Purchaser for the unpaid purchase price for Services performed and accepted by Agency, (b) with respect to Services compensable on an hourly basis, a claim for unpaid invoices, hours worked but not yet billed and authorized expenses for services completed and accepted by Authorized Purchaser, and (c) with respect to deliverable-based Services, a claim for the sum designated for completing the deliverable multiplied by the percentage of Services completed and accepted by Authorized Purchaser, less previous amounts paid and any claim(s) which Authorized Purchaser has against Contractor. If previous amounts paid to Contractor exceed the amount due to Contractor under this Section, Contractor shall pay any excess to Authorized Purchaser immediately upon written demand.

2.18 TERMINATION

2.18.1 Parties’ Right to Terminate by Mutual Consent. This Agreement may be terminated at any time by mutual written consent of Agency and Contractor.

2.18.2 Agency Right to Terminate for Convenience. Agency may, in its sole discretion, terminate this Agreement, in whole or in part, for any reason upon 30 Calendar Days written notice to Contractor.

2.18.3 Contractor may terminate a Contract upon 30 Calendar Days written notice to the Authorized Purchaser, if Authorized Purchaser is in default of a Contract as described in Section 2.16.2.

2.18.4 Effect of Termination.

2.18.4.1 Once this Agreement is terminated, Contractor shall not accept new Contracts or Purchase Orders.

2.18.4.2 Termination of this Agreement does not terminate the rights or obligations of any party to a Contract executed before termination of this Agreement.

2.18.4.3 Termination of this Agreement terminates Contracts or “blanket” Purchase Orders in which Contractor is not legally required to deliver specific quantities of Services at specific times.

2.19 ACCESS TO RECORDS

Contractor shall retain, maintain, and keep accessible all records relevant to this Price

DOJ PA#23253 Page 18 of 55

Agreement (the “Records”) for a minimum of six (6) years, or such longer period as may be required by applicable law following expiration or termination of the Price Agreement, or until the conclusion of any audit, controversy or litigation arising out of or related to the a Price Agreement, whichever date is later. Financial Records will be kept in accordance with Generally Accepted Accounting Principles (GAAP). During the record-retention period established in this Section, Contractor shall permit the Agency, their duly authorized representatives, and the federal government access to the Records at a reasonable time and place for purposes of examination and copying.

2.20 NOTICES

Except as otherwise expressly provided in this Price Agreement, any notices sent between Authorized Purchaser and Contractor are effective only if in writing and addressed to the assigned Authorized Representatives of both parties as designated in the Contract. A party may change its Authorized Representative upon written notice to the other party. The following methods of delivery may be used: Personal delivery, Email or United States Postal Service (“USPS”) with postage prepaid. For confirmation of delivery to the recipient, sender guidelines are as follows:

When choosing Personal delivery, parties may consider their communication or notice received immediately. When choosing Email, parties may consider their communication received upon reply to email by the recipient. However, if using email, the use of “read receipt” is not a valid form of delivery confirmation. When parties choose to use USPS, parties may consider their communication received five (5) Calender Days after the date of the mailing.

2.21 ORDERING ACKNOWLEDGEMENTS

The parties acknowledge and agree other than identification of Authorized Purchaser, designation of order quantities, types of Services, delivery destination, dates of order, and scheduled delivery of other performance, any purchase orders or acknowledgement documents are simply for the convenience of the parties to initiate or confirm an order of Services under this Price Agreement and no other terms or conditions contained in those documents are of any force, effect or are binding upon the parties.

2.22 GOVERNING LAW

This Price Agreement is governed by and construed in accordance with the laws of the State of Oregon, without regard to principles of conflicts of laws.

2.23 VENUE; CONSENT TO JURISDICTION

Any Claims between Agency and Contractor arising from or relates to this Price Agreement shall be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon; provided, however, if a Claim must be brought in a federal forum, then unless otherwise prohibited by law it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. CONTRACTOR

HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF SAID COURTS AND WAIVES

ANY OBJECTION TO VENUE IN SUCH COURTS, AND WAIVES ANY CLAIM THAT SUCH FORUM

IS AN INCONVENIENT FORUM. Nothing herein shall be construed as a waiver of the State’s

DOJ PA#23253 Page 19 of 55 sovereign or governmental immunity, whether derived from the Eleventh Amendment to the United States Constitution or otherwise, or of any defenses to Claims or consent to jurisdiction based thereon.

2.24 SURVIVAL

The following provisions survive termination or expiration of this Contract: Sections 2.8, 2.19, 2.22, 2.23, 2.25, 2.26; “TAIL COVERAGE” as defined in Exhibit C, and Insurance.

2.25 SEVERABILITY

If any provision of this Price Agreement is declared by a court of competent jurisdiction to be illegal or otherwise invalid, the validity of the remaining terms and provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Price Agreement did not contain the particular provision held to be invalid.

2.26 ASSIGNMENTS, SUBCONTRACTS, AND SUCCESSORS

Contractor shall not enter into any subcontracts for any of the Services required by this Agreement without Agency's prior written consent. In addition to any other provisions Agency may require, Contractor shall include in any permitted subcontract under this Agreement provisions to ensure that Authorized Purchaser’s will receive the benefit of subcontractor’s performance as if the subcontractor were Contractor. Agency’s consent to any subcontract does not relieve Contractor of any of its duties or obligations under this Price Agreement.

2.26.1 Prompt Payments to Subcontractors

Contractor shall make prompt payments to its subcontractors supplying the Services identified for delivery under this Agreement.

2.26.1.1 “Prompt payment(s)” are Contractor’s payment(s) to its subcontractor(s) for satisfactory performance or delivery that are issued by Contractor within fifteen

(15) Calendar Days of Contractor’s receipt of the related payment from Authorized Purchaser, unless a different payment schedule is otherwise agreed upon in the applicable subcontractor agreement, in which case the payment schedule in the applicable subcontractor agreement establishes “prompt payment(s).”

2.26.1.2 Prompt payment includes Contractor’s receipt of an acceptable invoice from the subcontractor.

2.26.1.3 Contractor’s prompt payment obligations do not extend to amounts that are subject to a good faith dispute between Contractor and the subcontractor.

2.26.1.4 Contractor shall include, in each subcontract for the Services delivered under this Agreement, provisions that require the subcontractor to comply with the prompt payment obligations of this Agreement with respect to its contractors supplying the Services identified for delivery under this Price Agreement.

DOJ PA#23253 Page 20 of 55

2.26.1.5 If Contractor fails to meet its prompt payment obligations under this section, Agency may suspend its performance without being in default under this Contract on written notice to Contractor.

2.27 MERGER CLAUSE; AMENDMENT; WAIVER

This Price Agreement constitutes the entire agreement between Contractor and Agency on the subject matter of this Agreement. There are no understandings, agreements, or representations, oral or written, not specified in this Agreement on the subject matter. Agency may amend this Agreement to the extent permitted by applicable statutes and administrative rules. No amendment of this Agreement is valid unless it is in writing and signed by the Agency and Contractor, and has been approved as required by applicable law. No waiver or consent is effective unless in writing and signed by the party against whom it is asserted. Waivers and consents are effective only in the specific instance and for the specific purpose given. The failure of Agency to enforce any provision this Price Agreement is not a waiver by Agency of that or any other provision.

2.28 ASSIGNMENT OF ANTITRUST RIGHTS

Contractor irrevocably assigns to the State Of Oregon any claim for relief or cause of action which the Contractor now has or which may accrue to the Contractor in the future by reason of any violation of 15 U.S.C. § 1-15 or ORS 646.725 or ORS 646.730, in connection with any goods or services provided to the Contractor for the purpose of carrying out the Contractor's obligations under this Agreement, including, at the State's option, the right to control any such litigation on such claim or relief or cause of action. Contractor shall require any subcontractors hired to perform any of Contractor's duties under this Agreement to irrevocably assign to the State of Oregon, as third party beneficiary, any right, title or interest that has accrued or which may accrue in the future by reason of any violation of 15 U.S.C. § 1-15 or ORS 646.725 or ORS 646.730, in connection with any goods or services provided to the subcontractor for the purpose of carrying out the subcontractor's obligations to the Contractor in pursuance of this Agreement, including, at the State's option, the right to control any such litigation on such claim or relief or cause of action.

2.29 OREGON FALSE CLAIMS

Contractor acknowledges the Oregon False Claims Act, ORS 180.750 to 180.785, applies to any action by Contractor pertaining to this Contract, including the procurement process relating to this Agreement, which constitutes a "claim" (as defined by ORS 180.750(1)). By its execution of this Agreement, Contractor certifies the truthfulness, completeness, and accuracy of any statement or claim it has made, it makes, it may make, or causes to be made that pertains to this Agreement. In addition to other penalties that may be applicable, Contractor further acknowledges that if it makes, or causes to be made, a false claim or performs a prohibited act under the Oregon False Claims Act, the Oregon Attorney General may enforce the liabilities and penalties provided by the Oregon False Claims Act against Contractor. Contractor understands and agrees that any remedy that may be available under the Oregon False Claims Act is in addition to any other remedy available to the State or Agency under this Agreement or any other provision of law.

DOJ PA#23253 Page 21 of 55

2.30 PAY EQUITY

As required by ORS279b.235, contractor shall comply with ORS 652.220 and shall not unlawfully discriminate against any of Contractor’s employees in the payment of wages or other compensation for work of comparable character on the basis of an employee’s membership in a protected class. “Protected class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age.

Contractor’s compliance with this section constitutes a material element of this Agreement and a failure to comply constitutes a breach that entitles Agency to terminate this Agreement for cause.

Contractor may not prohibit any of Contractor’s employees from discussing the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person.

Contractor may not retaliate against an employee who discusses the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person.

CONFIDENTIALITY AND NON-DISCLOSURE

3.1 CONFIDENTIAL INFORMATION.

Federal funds are being used to finance Contracts under this Agreement. Contractor, employees, and subcontractors shall comply with all non-disclosure and confidentiality obligations, with respect to case information, imposed by 45 CFR Chapter III and ORS 25.260. Regardless of federal funding, all parties to the Agreement are bound by the terms of ORS 646A.600 through 646A.628, the Oregon Consumer Identity Theft Protection Act. The use and disclosure of Confidential Information provided under this Agreement is strictly limited to performance of Services required under this Agreement.

Contractor acknowledges that it and its employees, officers, directors, agents or subcontractors (collectively, “contractor staff”) may, in the course of performing the Services under this Agreement, be exposed to or acquire information that is confidential. Any and all information of any form (including but not limited to data, records, files, papers, materials, documents, and communications in written, verbal, oral and electronic form) that contractor or any contractor staff may come into contact with or that is obtained by contractor or contractor staff in the performance of this contract shall be considered for the purposes of this contract the confidential information of agency (“Confidential Information”). Contractor shall, and shall cause contractor staff to treat any reports or other documents or items (including software) that result from the use of the confidential information in the same manner as the confidential information.

Confidential information does not include information that (i) is or becomes (other than by disclosure by contractor or contractor staff acquiring such information) publicly known or is contained in a publicly available document except to the extent applicable law still restricts disclosure; (ii) is furnished by Authorized Purchaser to others without restrictions similar to those imposed by this contract; (iii) is rightfully in contractor’s possession without the obligation of nondisclosure prior to the time of its disclosure under this contract; (iv) is obtained from a source other than Authorized Purchaser without the obligation of confidentiality, (v) is disclosed with the written consent of Authorized Purchaser, or; (vi) is independently developed by contractor or

DOJ PA#23253 Page 22 of 55 contractor staff who can be shown to have had no access to the confidential information.

3.2 NON-DISCLOSURE.

Contractor shall hold, and shall cause contractor staff to hold, all confidential information in confidence, using the highest standard of care applicable, and shall not copy, reproduce, sell, assign, license, market, transfer, distribute, or otherwise dispose of, give, make available or disclose, in whole or in part, directly or indirectly, confidential information to third parties (other than its authorized subcontractors), or use confidential information for any purposes whatsoever other than the provision of services to Authorized Purchaser hereunder, and shall advise contractor staff of their obligations to keep confidential information confidential. Contractor shall assist Authorized Purchaser in identifying and preventing any unauthorized use or disclosure of any confidential information.