ATTACHMENT A-Sample_Price_Agreement forRFP_OCBVendingMachines_nd_v5.1_final_wTOC&Formating.docx

ATTACHMENT A

STATE OF OREGON

SAMPLE PRICE AGREEMENT

FOR

Vending Machines

AND

RELATED OPTIONS, ADD-ON PRODUCTS AND SERVICES

PO – 10700-000XXXX

Table of Contents

SECTION 1- AGREEMENT…………….…………………………………………………..…5

1.0 DEFINITIONS((a)-(l))……………………………………………………………..5

1.1 PARTIES…………………………………………………………………………...7

1.2 CONTRACTING PROCESS AND BINDING EFFECT………………………….7

1.3 PRICES…………………………………………………………………………….8

1.3.1 Equal or better pricing…………………………………….….8

1.3.1.1 More Favorable Pricing/Terms apply……………..….8

1.3.1.2 Charitable donations do not apply.………………..….8

1.4 PRICE ESCALATION & DE-ESCALATION…………………………………….8

1.5 AUDITS……………………………………………………………………………9

1.6 RETURN GOODS…………………………………………………………………10

1.7 RECALLS AND RETURNS………………………………………………………10

1.8 VSR/VOLUME SALES REPORTS (RESERVED)….……………………………10

1.9 TERM OF AGREEMENT…………………………………………………………10

1.9.3 Extension for re-solicitation……………………………………...10

1.10 TERMINATION OF AGREEMENT.……………………………….….……….…11

1.11 PROOF OF INSURANCE……………………………………………………….…11

1.12 MISCELLANEOUS……………………..……………………………………….…11

SECTION 2 - STANDARD CONTRACTS TERMS UNDER AGREEMENT………...….…14

2.1 CONTRACT DOCUMENTS; ORDER OF PRECEDENCE……………...….……14

2.2 PAYMENT……………………..…………….………………………….....………14

2.3 OVERDUE CHARGES………………………………………………….…....……14

2.4 PAYMENT ADDRESS……………...….….…………...…………...……..………14

2.5 INVOICES……………………...………….………………………….……..…..…15

2.6 PRICES…………………………………………………...……………………...…15

2.7 CANCELLATION; INSPECTIONS AND ACCEPTANCE………….…….…..…15

2.7.3 Other remedies may apply………….……………………………16

2.8 REPRESENTATIONS AND WARRANTIES………………………...……..……16

2.8.8 Warranties Cumulative……………………………….……….…17

2.9 COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS……………..……………………………………………..…….…17

2.10 FOREIGN CONTRACTOR………………………………………...………..…...19

2.11 SAFETY DATA SHEETS (SDS) ………………...………………...……………19

2.12 TIME IS OF THE ESSENCE………………...………………...……...……..…...19

2.13 FORCE MAJEURE………………...………………………..……...…….....……20

2.14 FUNDS AVAILABLE AND AUTHORIZED PAYMENTS..…….……...………20

2.15 INDEPENDENT CONTRACTOR STATUS; RESPONIBILITY FOR TAXES AND WITHHOLDING……………………………………..…………...….20

2.15.1 Contractor is an independent contractor

2.15.2 Contractors responsibility for taxes and withholding

2.16 INDEMNIFICATION…………………………………………………………….20

2.17 BREACH……………………………………………………………………...…..21

2.17.1 By Contractor………………………………………….…….…21

2.17.2 By Authorized Purchaser………………………………….……22

2.18 REMEDIES……………………………………………………………………

2.18.1 Authorized Purchaser’s Remedies……………………………..22

2.18.2 Contractors Remedies………………………………………

2.19 TERMINATION…………………………………………………………………23

2.19.3 Rights Of The Contractor……………………………………...23

2.20 ACCESS TO RECORDS…………………………………………………………24

2.21 NOTICES………………………………………………………………………

2.22 ORDERS;ACKNOWLEDGEMENTS……………………………………...……24

2.23 GOVERNING LAW………………………………………………………………24

2.24 VENUE; CONSENT TO JURISDICTION………………………………………25

2.24.1 State Contract Venue; Consent to Jurisdiction…………………25

2.25 SURVIVAL……………………………………………………………………….25

2.26 SEVERABILITY…………………………………………………………….……25

2.27 ASSIGNEMENTS, SUBCONTRACTS, AND SUCCESSORS……….…………25

2.28 MERGER CLAUSE; AMENDMENT; WAIVER………………………….…….25

2.29 VCAF AND VSR (RESERVED)…………………………………………………26

2.30 THIRD PARTY BENEFICIARIES………………………………………....…….26

2.31 ASSIGNMENT OF ANTITRUST RIGHTS…………………..…………….……26

SECTION 3 - SPECIAL TERMS FOR CONTRACTS WITHIN THIS AGREEMENT

3.1 PRICE…………………………………………………………………………….26

3.2 METHOD OF ORDERING……………………………………………………….27

3.3 REPLACEMENT VENDING MACHINES; SUBSTITUTIONS/BACKORDERS AND RETURNS…………………………………………………………………….…28

3.3.1 Replacement Goods…………………………………..…………….….…..29

3.3.2 Substitutions And Backorders……………………..………………….…...29

3.4 CUSTOMER SUPPORT…………………………………………………………29

3.5 DEFAULT………………………………………………………………….…….27

3.6 VCAF AND VSR (RESERVED)………………………………………….……..30

3.7 CERTIFICATIONS REQUIRED…………………………………………...……30

3.8 SALES REPRESENTATIVE CALLS……………………………………...…….30

3.9 LIMITATION OF LIABILITY……………………………………………..……30

3.10 FDA STANDARD OF IDENTITY; REQUIREMENTS……..………………….30

3.11 ADDITIONAL FEDERAL LAW REQUIREMENTS…………...………………30

3.12 INSTITUTION SECURITY……………………………………………………...33

3.13 CRIMINAL HISTORY CHECK………………………………………………….33

SECTION 4 – SIGNATURE OF CONTRACTORS DULY AUTHORIZED REPRESENTATIVE.33-4

SECTION 5 – SIGNATURE OF DAS PS………………………………………………………………...35

SECTION 6 – OREGON DEPARTMENT OF JUSTICE……………………………………………….35

EXHIBIT 1 – TECHNICAL SPECIFICATIONS……………………………………………………..36

EXHIBIT 2 - NEW/UNUSED VENDING MACHINES WITH REQUIRED AND OPTIONAL COMPONENTS PRICELIST……………………………………………………….37

EXHIBIT 3 - INSURANCE REQUIREMENTS……………………………………………….…..…38

EXHIBIT 4 - DAS APPROVED PURCHASE ORDER (SAMPLE)…………………………………40

Sample Price Agreement; Vending Machines and Related Options, Add-On Products and Services

RFP - S-10700-0009666

This price agreement (“Agreement’) is between the State of Oregon (“State”) acting by and through its Department of Administrative Services Procurement Services (“DAS PS”) on behalf of the Oregon Commission for the Blind, other State Agencies and ORCPP members ( “Authorized Purchaser”), and [insert Contractor’s name], a [insert state of incorporation] (“Contractor”).

SECTION 1 –AGREEMENT

1.0 DEFINITIONS

Capitalized terms not specifically defined in this document are defined in OAR 125-246-0110.

In addition to the terms defined below, all capitalized terms used in this Agreement but not otherwise defined are defined in ORS 279A, ORS 279B, OAR 125-246 and OAR 125-247, which apply to all Price Agreements.

(a) “Alternative Purchase Order” is an order for Vending Machines and Services placed by telephone or placed through a Contractor-provided on-line ordering process.

(b) “Business Days” means Monday through Friday, 8:00 a.m. to 5:00 p.m., Pacific Time, excluding State of Oregon-observed holidays.

(c) "Contract" means the entire Agreement between the Contractor and the Authorized Purchaser, comprised of this Agreement, including any Addenda, Amendments and a signed Purchase Order, if hard copy, or acknowledged Order, if in electronic form.

(d) “Installation” means , Vending Machine with its accompanying assemblies, accessories and parts is installed including and not limited to provision of or connection to services (such as power and water supply) required to make the installed equipment ready for vending operations.

(e) “Order” means either a Purchase Order or an Alternative Purchase Order. (see Exhibit 4 - DAS Approved Purchase Order or a substantial equivalent document for ORCPP members)

(f) “ORCPP” means the Oregon Cooperative Purchasing Program. ORCPP members are authorized to use DAS PS statewide agreements. ORCPP members include: State Agencies not subject to DAS PS purchasing authority, cities, counties, school districts, special districts, Qualified Rehabilitation Facilities (QRFs), residential programs under contract with the Oregon Department of Human Services, United States governmental agencies, and American Indian tribes or agencies.

(g) “Purchase Order” means the purchase document in proper form as described in Section 3.2 Process that is submitted by Authorized Purchaser to a Contractor via OregonBuys, which together with this Price Agreement creates a Contract between Contractor and Authorized Purchaser for the purchase of the New Vending Machines, standard components and optional components, as described in the Purchase Order.

(h) “Services” means delivery, operational set-up, programming and training to fulfill New/Unused Vending Machines Order requirements.

(i) “Shipping” means the physical process of transporting New/Unused Vending Machines.

(j) “Specifications" means any description of the physical or functional characteristics of, or of the nature of Vending Machines or Services, including a description of any requirement for inspecting, testing or preparing Vending Machines or Services for delivery.

(k) “State” means the State of Oregon.

(l) “Vending Machine” means a new, unused machine and any optional components specified in Exhibit 1.

1.1 PARTIES

The only parties to this Agreement are Contractor and DAS PS.

1.2 CONTRACTING PROCESS AND BINDING EFFECT

Authorized Purchaser may purchase Vending Machines and Services specified in Exhibit 1, by issuing Orders. Each executed Order creates a separate, binding contract (“Contract”) that is enforceable according to its terms and independent of all other Contracts. A properly completed and signed Purchase Order creates the Contract upon the latest date of signature. A properly completed Alternative Purchase Order creates the Contract upon the earlier of the date Contractor confirms in writing receipt of the Alternative Purchase Order or the date Contractor begins performing according to the Alternative Purchase Order.

Contractor shall provide Vending Machines and related Services required under each Contract and shall comply with all applicable federal, state and local codes, regulations and requirements for those Vending Machines and Services.

1.2.1 Contractor may offer by amendment to Exhibit 1 updated Vending Machines, new model Vending Machines, and related services to reflect changes in technology or design, or both.

1.2.2 Contractor agrees that by accepting an Order for Vending Machines and Services, the terms set forth in section 2, Standard Contract Terms, section 3, Special Contract Terms, Exhibit 1, Statement of Work, and Exhibit 2 , Price List Types 1- 14, of this Agreement are incorporated into and apply to the Order.

1.2.3 Contractor may reject an Order only by refusing to sign a Purchase Order or refusing to begin performance under an Alternative Purchase Order and notifying Authorized Purchaser in writing no later than 24 hours after receipt of the Order of the specific reasons for rejection.

1.2.4 DAS PS is not obligated or liable to Contractor under any Order.

1.2.5 Nothing in this Agreement obligates Authorized Purchaser to place any Order.

1.2.6 Due to the use of federal funds that Authorized Purchasers may use for some or all Vending Machines and Services, federal procurement rules may apply. Authorized Purchaser, when using federal funds for a portion of the Order, may issue two Orders simultaneously for any Vending Machines or Service, or both (one for federal funds, one for non-federal funds).

1.2.7 Contractor shall issue an order acknowledgement document upon receipt of each Alternative Purchase Order that specifies the Vending Machines and Services ordered, delivery schedule, and delivery destination.

1.3 PRICES

1.3.1 Contractor represents that all prices, terms and benefits offered by Contractor under this Agreement are equal to or better than the equivalent prices, terms and benefits being offered by Contractor to any other state or local government unit or commercial customer.

1.3.1.1 Should Contractor, during the term of the Agreement, enter into any contract, agreement or arrangement that provides lower prices, more favorable terms or greater benefits to any other such government unit or commercial customer for vending machines, services and purchase quantities comparable to the Vending Machines, Services and associated purchase quantities, this Contract is deemed amended to provide the same price or prices, terms and benefits to the State.

1.3.1.2 Contractor’s donations of Vending Machines to charitable, nonprofit or government entities, if the donations are recognized as such and are deductible under the federal Internal Revenue Code, are not considered contracts, agreements or arrangements with other government units or commercial customers for purposes of subsection 1.3.1.1.

1.4 PRICE ESCALATION & DE-ESCALATION:

1.4.1 Contractor may request a price increase for any Vending Machines, only once per year, on the anniversary of the Effective Date.

1.4.1.1 At the time of request for increase, Contractor must submit a request to the Agreement Administrator in writing at least 30 days before the proposed effective date of the increase. Contractor shall supply supporting documentation that substantiates the request. This documentation must be in the form of the contractor’s purchase invoice, due to fluctuations in the economy and within the guidelines in section 3.2.

1.4.1.2 The request must show all proposed increases by line item and include supporting documentation acceptable to DAS PS. DAS PS may require Contractor to provide U.S. Bureau of Labor Statistics Producer Price Index (PPI) or Consumer Price Index (CPI) data or any other relevant manufacturer or industry data substantiating the increase.

1.4.1.3 Price Index (PPI) and Consumer Price Index (CPI) will be used to determine the validity of the requested increase. Established Price List must contain current valid prices that includes discounts originally offered.

1.4.1.4 DAS PS has sole discretion to approve or deny a price increase request. DAS PS will determine whether the documentation is sufficient to substantiate an increase or whether to require Contractor to submit additional supporting documentation.

1.4.2 Price decreases are encouraged and accepted by DAS-PS.

1.4.3 Contractor shall update Exhibit 2, New/Unused Vending Machine Type Pricelist (“Pricelist”) TYPES1-22, as referenced in section 1.3, with approved changes, and send the updated Pricelist(s) to DAS PS Contract Administrator, and as applicable, post on Contractor’s business website, as follows:

1.4.3.1 Requested annual Pricelist updates; shall be submitted for approval no later than on the anniversary of the Effective Date.

1.4.4 Price changes as defined in 1.3. and 1.4, are considered a matter of contract administration, and no amendment is required. A notice to proceed will be sent upon acceptance of price changes prior to the application of such price changes.

1.5 AUDITS

1.5.1 At DAS PS' request, DAS PS may conduct an audit of Contractor’s records. Contractor shall supply, at the Contractor’s cost, the Contractor’s invoice, and if applicable, the manufacturer’s invoice for the Vending Machines within the Type that the Contractor was awarded. DAS PS’ audit shall be conducted by sampling of invoices received by Authorized Purchasers using the Price Agreement’ comparing Pricing including and not limited to discounts and other charges to actual invoices received.

1.5.1.1 In the event there are discrepancies found during the audit conducted according to Section 1.5.1 above, DAS PS reserves the right to execute the following formal process:

(a) Contractor shall supply at DAS PS' request the manufacturer's invoice for the Vending Machines within the Type that the Contractor was awarded. This may include component option(s) for the Type of Vending Machine(s)

(b) The audit shall be conducted at the Contractor's location by an independent third party auditing firm that DAS PS has selected.

(c) Contractor shall pay the cost of the audit. Contractor shall provide all documentation that substantiates any manufacturer's price increase or decrease.

(d) Any decrease in Price documented in the audited period shall be credited back to the applicable Authorized Purchaser.

1.6 RETURNED GOODS:

Contractor shall pay all shipping cost for, and shall accept, returned Vending Machines, when one or more of the following conditions are present:

1.6.1 Breakage, or other damage has occurred from shipment, delivery, installation, operational set-up or otherwise, when the Vending Machines have been handled by Authorized Purchaser personnel with reasonable care;

1.6.2 Vending Machines supplied are the result of Contractor error, and Authorized Purchaser is not willing to keep the shipment of Vending Machines.

1.7 RECALLS AND RETURNS:

In addition to its obligations under Section 3.3, throughout the duration of this Agreement and any resulting contracts and warranty periods, Contractor shall maintain and comply with its written policy and procedure for handling returns and recalls related to Vending Machines as submitted to DAS PS as part of Contractor's Proposal in RFP.

1.8 VSR/VOLUME SALES REPORTS

RESERVED

1.9 TERM OF AGREEMENT

The term of this Agreement begins on the date this Agreement has been signed by DAS PS and Contractor, and all required approvals have been obtained (the “Effective Date”). The term ends on the two (2) year anniversary of the Effective Date unless terminated or extended as provided in this Agreement (the “Term”).

1.9.1. DAS PS has the option to extend the Term at any time prior to the end of the then- current Term. The total Term, including all extensions, must not be for more than 5 years following the Effective Date except as contemplated under subsection 1.9.3.

1.9.2 If DAS PS exercises the option to extend, DAS PS will provide written notice to Contractor later than 30 calendar days before the expiration of the then-current Term.

1.9.3 DAS PS reserves the right in its sole discretion to extend the Term for any additional time period at the end of the then-current Term, as necessary to complete re-solicitation for new Vending Machine and related services agreements. DAS PS shall notify Contractor in writing of the Term extension prior to the expiration of the then-current Term.

1.10 TERMINATION OF AGREEMENT

1.10.1 After this Agreement is terminated, Contractor shall not accept new Orders.

1.10.2 Termination of this Agreement also terminates Orders, such as blanket purchase orders, in which the Contractor is not legally obligated to deliver specific quantities of Vending Machines at specific times. The intent of this paragraph is to terminate what is commonly known as a blanket purchase order (an order that may contain detail of the Vending Machines, but actual sale of Vending Machines is made by periodic releases that specify a date for delivery of specific Vending Machines).

1.11 PROOF OF INSURANCE

Contractor shall obtain and maintain the insurance coverages and types as specified in Exhibit 3 for the term of this Agreement.

1.12 MISCELLANEOUS

1.12.1 Choice of Law. The laws of the State of Oregon (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to this Agreement, including, without limitation, its validity, interpretation, construction, performance, and enforcement.

1.12.2 Designation of Forum and Consent to Jurisdiction. Any party bringing a legal action or proceeding against any other party arising out of or relating to this Agreement shall bring the legal action or proceeding exclusively in the Circuit Court of the State of Oregon for Marion County. It is provided, however, that if a legal action or proceeding must, as mandated by federal law, 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 SUCH COURTS, WAIVES ANY OBJECTION TO VENUE IN SUCH COURTS, AND WAIVES ANY CLAIM THAT SUCH FORUM IS AN INCONVENIENT FORUM. Nothing herein may be construed as a waiver of the State's sovereign or governmental immunity, whether derived from the Eleventh Amendment to the United States Constitution or otherwise, or of any defenses to legal action or proceeding or jurisdiction based thereon.

1.12.3 Amendments. No amendment of this Agreement is valid unless it is in writing and signed by the parties. DAS PS and Contractor may need to modify selected terms, conditions, and services under this Agreement.

DAS PS and Contractor may agree to change Exhibit 1- New/Unused Vending Machines Type Price List TYPES 1– 22 to add Vending Machines, and delete Vending Machines as a matter of contract administration. Contractor shall provide new pricelist for New/Unused Vending Machines according to agreed upon additions and deletions.

1.12.4 Transfer. Contractor shall not assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without first obtaining the written consent of DAS PS. DAS PS consent to any subcontract (or other delegation of duties) does not relieve Contractor of any of its duties or obligations under this Agreement. This Agreement is binding upon and inures to the benefit of each of the parties, and, except as otherwise provided their permitted legal successors and assigns.

1.12.5 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.

1.12.6 Force Majeure. Neither party is responsible for delay or default caused by an unallocated risk such as fire, riot, and acts of God or war, or by any other cause not within the control of the party whose performance is interfered with, and, which by the exercise of reasonable diligence, the party is unable to prevent. DAS PS may terminate this Agreement upon written notice after determining such delay or default will reasonably prevent successful performance of this Agreement.

In the event of any such delay, Contractor’s obligations are suspended to the extent of and for the duration of such causes. However, Contractor shall take all good faith efforts to eliminate the cause of any such delay, and upon the cessation of such cause, shall resume performance of Contractor’s obligations with all reasonable diligence. If necessary, the period for performance under this Agreement will be extended to enable Contractor, once such causes have been removed, to fulfill its obligations hereunder.

1.12.7 Entire Agreement. This Agreement, together with the attached exhibits, constitutes the entire agreement between the parties and merges all prior and contemporaneous communications with respect to the subject matter.

1.12.8 Notices. Except as otherwise expressly provided in this Agreement, any communications between the parties, or notices to be given under this Agreement, are effective only if given in writing by personal delivery, express courier, facsimile, or United States Postal Service, postage prepaid, to Contractor or DAS PS at the address or number set forth below in Sections 4 and 5, or to such other addresses or numbers as either party may later indicate pursuant to this Section. Any communication or notice so addressed and mailed is deemed given five (5) days after mailing. Any communication or notice delivered by facsimile is deemed given on the day the transmitting machine generates a receipt of a successful transmission of the notice, if transmission was during normal business hours, or on the next Business Day, if transmission was outside normal business hours. To be effective against DAS PS, any notice transmitted by facsimile must be confirmed by telephone notice to DAS PS’s Contract Administrator. Any communication or notice given by personal delivery or express courier is deemed given immediately upon such delivery, provided such delivery is made to the person indicated below.

The Contract Administrators are identified in Sections 4 and 5, respectively.

1.12.9 No Third Party Beneficiaries. DAS PS 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. Authorized Purchasers are intended beneficiaries of this Agreement.

1.12.10 Waiver. The failure of DAS PS to enforce any provision of this Agreement or the waiver of any violation or nonperformance of this Agreement in one instance does not constitute a waiver by DAS PS of that or any other provision nor is it a waiver of any subsequent violation or nonperformance. Such failure to enforce waiver, if made, is effective only in the specific instance and for the specific purpose given.

1.12.11 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.

1.12.12 Specific State Statutes. DAS PS’ performance under this Agreement is conditioned upon Contractor’s compliance with the obligations intended for contractors under ORS 279B.220, 279B.225 (if applicable to this Agreement), 279B.230 and 279B.235 (if applicable to this Agreement), which are incorporated into this Agreement by reference. Contractor shall, to the maximum extent economically feasible in the performance of this Agreement, use recycled paper (as defined in ORS 279A.010(1)(gg)), recycled PETE products (as defined in ORS 279A.010(1)(hh)), and other recycled plastic resin products and recycled products (as “recycled product” is defined in ORS 279A.010(1)(ii)).

1.12.13 Records Retention. Contractor shall maintain all financial records relating to this Agreement and all SOCs and POs in accordance with generally accepted accounting principles. In addition, Contractor shall maintain any other records, including books, documents, papers, plans, records of shipments and payments and writings of Contractor that are pertinent to this Agreement or any Ordering Instrument in such a manner as to clearly document Contractor's performance. All financial records and all other records are “Records.” Contractor shall permit the State, DAS, any Authorized Purchaser, the Oregon Secretary of State's Office, the federal government, and their duly authorized representatives to have access to the Records, whether in paper, electronic or other form, to perform examinations and audits and make copies, excerpts and transcripts, except to the extent that such Records are confidential under state or federal law. Contractor shall retain and keep accessible all Records for a minimum of six (6) years, or such longer period as may be required by applicable law and which will be identified in each Ordering Instrument entered into by both Contractor and Authorized Purchaser, following both (i) the final payment under the last Ordering Instrument entered into and (ii) the expiration or termination of the Agreement, or until the conclusion of any audit, controversy or litigation arising out of or related to the Agreement or any Ordering Instrument , whichever date is later.

SECTION 2 – STANDARD CONTRACT TERMS

2.1 CONTRACT DOCUMENTS; ORDER OF PRECEDENCE:

The Contract consists of the signed Order, Technical Specifications Exhibit 1, and the provisions of this Agreement. In the event of a conflict between the Order and provisions in this Agreement, the provisions in this Agreement take precedence.

2.2 PAYMENT:

Contractor shall look solely to Authorized Purchaser for payment of all amounts that may be due under this Contract. AUTHORIZED PURCHASER IS SOLELY RESPONSIBLE FOR PAYMENT UNDER THIS AGREEMENT. Subject to Authorized Purchaser’s acceptance of goods, payment is due from Authorized Purchaser within 30 calendar days after the date of the invoice.

2.3 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).

2.4 PAYMENT ADDRESS:

Payments will be sent to the address specified in the Contractor’s invoice.

2.5 INVOICES:

Contractor shall invoice Authorized Purchaser only after delivery of all Vending Machines ordered. Invoices shall be sent to the address provided by Authorized Purchaser for that purpose. Contractor shall include all of the following in its invoice:

2.5.1 Agreement number:

2.5.2 Order number:

2.5.3 Delivery Address: The Address that the Vending Machines or component options or both were delivered to:

2.5.4 Options: Vending Machines or component options or both were ordered;

2.5.5 Delivered/Installed and operational; Vending Machines or component options or both were delivered, installed and made operational;

2.5.6 Quantity: Volume or quantity of Vending Machines or component options or both delivered;

2.5.7 Fixed Price: Fixed price per Vending Machines or component options or both;

2.5.8 Total Amount: Total dollar amount invoiced;

2.5.9 Invoice Address: Address to which payment is to be sent, and;

2.5.10 Any other required information as required by the Authorized Purchaser.

2.6 PRICES:

Contractor represents that all prices for Vending Machines or component options or both under this Contract that are equal to or better than the prices listed in the Agreement Exhibit 2 – Vending Machines Type price list Types 1-22.

2.7 CANCELLATION; INSPECTIONS AND ACCEPTANCE:

The Authorized Purchaser may cancel an order in whole or in part before Vending Machines or component options or both, as described in the Order, whole or in part are delivered.

The Authorized Purchaser has five (5) Business Days from date of delivery, installation, and operational set up to inspect and accept or reject the Vending Machines or component options or both. If the Vending Machines or component options or both are rejected, the Authorized Purchaser shall provide Contractor with written notice of rejection.

Notice of rejection must include itemization of apparent defects, including (i) discrepancies between the Vending Machines or component options or both and the applicable specifications or warranties (including variance from demonstrations or sample characteristics where demonstrations or samples have been provided), or (ii) otherwise nonconforming Vending Machines or component options or both, (including late delivery). Notice of rejection must also specify when cure will be allowed.

2.7.1 The Authorized Purchaser may elect to have Contractor deliver substitute conforming Vending Machines or component options or both at no additional cost to the Authorized Purchaser. In such an event, Contractor shall deliver substitute conforming Vending Machines or component options or both within 48 hours or as agreed upon between both parties at receipt of notice of rejection.

2.7.2 If the Vending Machines or component options or both are rejected or acceptance is revoked, Contractor shall refund any Contract payments that have been made with regard to the rejected Vending Machines or component options or both, and shall (at Contractor’s sole cost and expense) remove the Vending Machines or component options or both within 48 hours or as agreed upon between parties, of receiving notice of rejection or revocation of acceptance.

2.7.3 Nothing contained in Section 2.7 precludes Authorized Purchaser from other remedies to which it may be entitled upon rejection or revocation of acceptance.

2.8 REPRESENTATIONS AND WARRANTIES:

2.8.1 Officer Status, Insurance: Contractor represents and warrants that it is not an “officer,” “employee,” or “agent” of the Authorized Purchaser, as those terms are used in ORS 30.265. Contractor represents and warrants that Contractor has obtained and will maintain during the term of this Contract all insurance required by the Agreement.

2.8.2 Warranty On Materials, Technology, Design, And Manufacture:

Contractor represents and warrants that all Vending Machines are new, unused, current production models, technology and design and are free from defects in materials, technology, design and manufacture. Contractor further represents and warrants that all Vending Machines are in compliance with and meet or exceed all specifications in Exhibit 1 to the Agreement.

2.8.3 Warranty On Service Standards: Contractor warrants that all services required to be performed, if any, shall be performed in a good and workmanlike manner in accordance with standards prevalent in the industry.

2.8.4 Warranty Of Title: Contractor represents and warrants that all Vending Machines or component options or both are free and clear of any liens or encumbrances, that Contractor has full legal title to the Vending Machines or component options or both, and that no other person or entity has any right, title or interest in the Vending Machines or component options or both which is superior to or infringes upon the rights granted to the Authorized Purchaser under this Contract.

2.8.5 Warranty On Safety And Health Requirements: Contractor

represents and warrants that Vending Machines or component options or both provided under this Contract comply with all applicable federal health and safety standards, including but not limited to, Occupational Safety and Health Administration (OSHA),United States Department of Agriculture (USDA) and the Food and Drug Administration (FDA), and all Oregon safety and health requirements, including, but not limited to, those of the Oregon Consumer and Business Services Department.

2.8.6 Manufacturer Warranties: Contractor shall have all manufacturer warranties covering the Vending Machines including and not limited to component transferred (registered) to the Authorized Purchaser at time of delivery at no charge.

2.8.7 Tax Compliance Warranty: Contractor represents and warrants that 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 of this Contract, faithfully has complied with:

2.8.7.1 All tax laws of this state, including those referenced in ORS 305.380(4), ORS 305.620 and ORS chapters 316, 317, and 318;

2.8.7.2 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;

2.8.7.3 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; and

2.8.7.4 Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions.

2.8.8 Warranties Cumulative: The warranties set forth in this section are in addition to, and not in lieu of, any other warranties provided in this Contract. All warranties provided in this Contract are cumulative, and are intended to afford the Authorized Purchaser the broadest warranty protection available.

2.9 COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS:

2.9.1 Compliance With Law in General: Contractor shall comply with all federal, state and local laws, regulations, and ordinances applicable to this Contract as they may be adopted or amended from time to time.

2.9.2 Specific Statutory Terms: Authorized Purchaser’s performance under this Contract is conditioned upon Contractor’s compliance with the obligations intended for contractors under ORS 279B.220, 279B.225 (if applicable to this Contract), 279B.230 and 279B.235 (if applicable to this Contract), which are incorporated into this Contract by reference. Contractor shall, to the maximum extent economically feasible in the performance of this Contract, use recycled paper (as defined in ORS 279A.010(1)(gg)), recycled PETE products (as defined in ORS 279A.010(1)(hh)), and other recycled plastic resin products and recycled products (as “recycled product” is defined in ORS 279A.010(1)(ii)).

2.9.3 Contractor’s Compliance With Tax Laws:

2.9.3.1 Contractor must, throughout the duration of this Contract and any extensions, 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 all the provisions described in subsections 2.8.7.1 through 2.8.7.4 of this Contract.

2.9.3.2 Any violation of subsection 2.9.3.1 of this section shall constitute a material breach of this Contract. Further, any violation of Contractor’s warranty, in subsection 2.8.7 of this Contract, that Contractor has complied with the tax laws of this state and the applicable tax laws of any political subdivision of this state also shall constitute a material breach of this Contract. Any violation shall entitle the Agency to terminate this Contract, to pursue and recover any and all damages that arise from the breach and the termination of this Contract, and to pursue any or all of the remedies available under this Contract, at law, or in equity, including but not limited to:

a. Termination of this Contract, in whole or in part;

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

c. Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief. Agency shall be entitled to recover any and all damages suffered as the result of Contractor's breach of this Contract, including but not limited to direct, indirect, incidental and consequential damages, costs of cure, and costs incurred in securing Vending Machines, replacement Services, a replacement contractor, in any combination.

These remedies are cumulative to the extent the remedies are not inconsistent, and Agency may pursue any remedy or remedies singly, collectively, successively, or in any order whatsoever.

2.9.4 Noncompliant Goods: In the event of a conflict between the specifications in this Contract and applicable federal or State law, the law prevails. Contractor shall make any modifications required to achieve compliance with law. When Contractor is notified or becomes aware of any required modifications, Contractor shall immediately notify DAS PS and Authorized Purchaser.

2.9.5 Recalled Goods and Components: In the event any Vending Machines or component parts are recalled by a regulatory body or the manufacturer, or discovered by Contractor not to be in compliance with the applicable specifications, Contractor shall immediately notify DAS PS and the Authorized Purchaser of the recall or non-compliance, and shall provide copies of the notice or other documentation. Upon notification, Authorized Purchaser may elect to do any of the following:

a) Cancel any portion of the Order.

b) Reject the Vending Machines or component options or both.

c) Revoke its acceptance of the Vending Machines or component options or both.

d) Require Contractor to complete necessary modifications, where applicable, in a timely manner, at no charge to the Authorized Purchaser.

e) Terminate the Contract.

In the event of rejection or revocation of acceptance under this subsection, Contractor shall promptly remove the Vending Machines or component options or both at its sole cost and expense, and reimburse Authorized Purchaser for any payments made.

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. Authorized Purchaser may withhold final payment under the Contract until Contractor has met this requirement.

2.11 SAFETY DATA SHEET (SDS):

Contractor shall provide at the request of the Authorized Purchaser a SDS as defined by the Occupational Safety and Health Administration (OSHA) for Vending Machines provided under the Agreement which may release or otherwise result in exposure to a hazardous chemical under normal conditions of use. In addition, Contractor must properly label, tag or mark such Goods. Additionally, Contractor shall deliver Environmental Protection Agency (“EPA”) labels and SDS information if available and as requested by Agency.

2.12 TIME IS OF THE ESSENCE:

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

2.13 FORCE MAJEURE:

Neither Authorized Purchaser nor Contractor shall be held responsible for delay or default caused by fire, riot, acts of God, war, or any other cause 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 Contract. Authorized Purchaser may terminate this Contract upon written notice to Contractor after reasonably determining that such delay or default will likely prevent successful performance of the Contract.

2.14 FUNDS AVAILABLE AND AUTHORIZED PAYMENTS:

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

2.15 INDEPENDENT CONTRACTOR STATUS; RESPONSIBILITY FOR TAXES AND WITHHOLDING:

2.15.1 Contractor is an independent contractor: Although the Authorized Purchaser reserves the right (i) to determine (and modify) the delivery schedule for the Vending Machines or component options or both and (ii) to evaluate the quality of completed performance, Authorized Purchaser 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 Contract.

2.15.2 Contractor responsibility for taxes and withholding: Contractor is responsible for all federal and state taxes applicable to compensation or payments paid to Contractor under this Contract 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 Contract, except as a self-employed individual.

2.16 INDEMNIFICATION:

2.16.1 CONTRACTOR SHALL DEFEND, SAVE, HOLD HARMLESS, AND INDEMNIFY THE AUTHORIZED PURCHASER, THE STATE OF OREGON AND ITS OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ALL CLAIMS, SUITS, ACTIONS, PROCEEDINGS, LOSSES, DAMAGES, LIABILITIES, AWARDS AND COSTS OF EVERY KIND AND DESCRIPTION (INCLUDING REASONABLE ATTORNEY’S FEES AND EXPENSES AT TRIAL, ON APPEAL AND IN CONNECTION WITH ANY PETITION FOR REVIEW) (COLLECTIVELY, “CLAIM”) WHICH MAY BE BROUGHT OR MADE AGAINST ANY AUTHORIZED PURCHASER, THE STATE, OR THEIR AGENTS, OFFICIALS, EMPLOYEES AND ARISING OUT OF OR RELATED TO (I) ANY PERSONAL INJURY, DEATH OR PROPERTY DAMAGE CAUSED BY ANY ALLEGED ACT, OMISSION, ERROR, FAULT, MISTAKE OR NEGLIGENCE OF CONTRACTOR, ITS EMPLOYEES, AGENTS, RELATED TO THIS CONTRACT, (II) ANY ACT OR OMISSION BY CONTRACTOR THAT CONSTITUTES A MATERIAL BREACH OF THIS CONTRACT, 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 VENDING MACHINES. 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 WITHOUT CONTRACTOR’S APPROVAL AND IN A MANNER INCONSISTENT WITH THE PURPOSE AND PROPER USAGE OF SUCH GOODS.

2.16.2 HOWEVER, 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 THAT OF ITS OFFICERS, EMPLOYEES AND AGENTS, AT ANY TIME WHEN IN THE STATE’S SOLE DISCRETION IT DETERMINES THAT (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 THAT OF ITS OFFICERS, EMPLOYEES, OR AGENTS UNDER (I) AND (II) ABOVE.

2.17 BREACH:

2.17.1 By Contractor: Contractor breaches this Contract if:

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

2. Contractor no longer holds a license or certificate that is required for Contractor to perform Contractor’s obligations under this Contract; or

3. Contractor commits any breach of any covenant, warranty, obligation or certification under this Contract, provided however that Contractor may cure the breach within the period specified in Authorized Purchaser’s notice of…