Attachment A Sample Price Agreement~2.docx

ATTACHMENT A -SAMPLE PRICE AGREEMENT

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Price Agreement Number XXXXX

STATE OF OREGON

PUBLICATION AND CREATIVE SERVICES

PRICE AGREEMENT

This Price Agreement (“Agreement”) is between the State of Oregon, acting by and through its Oregon Health Authority, hereinafter referred to as “OHA,” and Comment by Ford Coral D: For the ODHS PA, I will swap out references to OHA with ODHS.

Contractor Information hereinafter referred to as “Contractor”.

Work to be performed under this Price Agreement relates principally to OHA’s ODHS or OHA Information This Price Agreement is entered into by OHA and the Contractor for the purpose of identifying the form of Work Order Contract to be used, the general terms and conditions applicable to subsequent Work Order Contracts (“Work Order Contract”) entered into between OHA and Contractor pursuant to which Contractor will provide services to OHA, and the process through which the Work Order Contracts will be assigned and authorized.

This Agreement, by itself, is not a binding contract. There is no guarantee that any specific level of work or overall dollar amounts will be authorized for and required of Contractor. Rather, OHA and Contractor intend to enter into binding and enforceable Work Order Contracts for program needed services by execution of a Work Order Contract substantially in the form attached hereto as Appendix #1 that specifies the work to be performed and that makes the terms and conditions set forth in this Agreement applicable to the authorized Work Order Contract. Each executed Work Order Contract shall create a separate Contract between the parties (consisting of the Work Order Contract together with the Price Agreement terms and conditions) enforceable in accordance with the terms thereof and independent of all other such Work Order Contracts.

Work Order Contract Assignment Procedure: Any Work Order Contract issued pursuant to this Price Agreement for specific projects will be issued according to the process described herein.

For any Work Order Contract estimated at $25,000.00 and under, the OHA will select a potential Contractor(s) from among the pool of Price Agreement Contractors. OHA will direct award the Work Order Contract based on, among other things, Contractor availability and experience related to the specific request.

For a Request that will result in a Work Order Contract estimated to be greater than $25,000, OHA will select a Contractor from the list of Price Agreement Contractors awarded a Price Agreement under RFP 5711 based on a best value analysis process. OHA will invite vendors who have expertise in one of the categories listed in Section 2.4 Scope of Work of the RFP to provide a response in regard to the needs of the request. In cases where more than one category is required, OHA reserves the right to invite only those Contractors that are qualified in all categories to respond.

OHA may determine the best value based on, but not limited to, the following additional information to be solicited from the Contractor:

· Demonstrated knowledge and experience relevant or unique to the project or category.

· Availability

· Experience working with the Contractor on previous engagements

· Past performance/follow up work

· Cost

· Other Once the best value analysis is finished, OHA will select the Contractor that is determined to be the most advantageous to OHA based on the evaluation of the Application received and will proceed with executing a Work Order Contract see Appendix 1. At that time, negotiations with the selected Contractor will commence and OHA reserves the right to cancel negotiations at any time.

1. Effective Date and Duration.

a. This Price Agreement shall become effective on the date this Price Agreement has been fully executed by every party. Unless extended or terminated earlier in accordance with its terms, this Price Agreement shall expire on five (5) years after execution. Price Agreement termination shall not extinguish or prejudice OHA’s right to enforce this Price Agreement or any Work Order Contract issued under its authority that has not yet terminated, with respect to any default by Contractor that has not been cured.

b. Upon termination or expiration of the Price Agreement, and at the request of OHA, the Contractor will continue to provide the services and meet the obligations, including pricing, under any applicable Work Order Contract unless such Work Order Contract is otherwise terminated.

2. Price Agreement Documents.

a. This Price Agreement consists of this document and includes the following listed exhibits which are incorporated into this Price Agreement:

There are no other contract documents unless specifically referenced and incorporated in this Price Agreement.

b. This Price Agreement and the documents listed in Section 2a above shall be in the following descending order of precedence: the original Request for Proposal _____________________, this Price Agreement less all exhibits, Exhibits D, B, A, C and Appendix. Fully executed Work Order Contracts take precedence over the Price Agreement Exhibits.

3. Consideration.

a. The not-to-exceed compensation payable to Contractor is subject to the project-specific budget authorized by an executed Work Order Contract issued under this Price Agreement. Each Work Order Contract shall be for a fixed amount based on the rate structure identified in Exhibit A, Part 2 of this Price Agreement. When individual Work Order Contracts issued from the Price Agreement exceed $150,000.00, the Department of Justice shall be consulted for approval, prior to execution. The cumulative cost of all Work Order Contracts under one Price Agreement has no limit.

b. OHA will not pay Contractor any amount more than the not-to-exceed compensation authorized by each Work Order Contract for completing the Work and will not pay for Work performed before the date this Price Agreement becomes effective.

c. If the maximum compensation of a Work Order Contract is increased by amendment to the Work Order Contract, the amendment must be fully effective before Contractor performs Work subject to the amendment.

4. Contractor or Subrecipient Determination. In accordance with the State Controller’s Oregon Accounting Manual, policy 30.40.00.102, OHA’s determination is that:

|_| Contractor is a subrecipient |X| Contractor is a contractor |_| Not applicable If federal funds are paid through this Price Agreement, the Catalog of Federal Domestic Assistance (CFDA) number will be indicated on each specific Work Order Contract.

5. Contractor Data and Certification.

a. Contractor Information. This information is requested pursuant to ORS 305.385.

PLEASE PRINT OR TYPE THE FOLLOWING INFORMATION

Contractor Name (exactly as filed with the IRS):

Street address:

City, state, zip code:

Email address:

Is Contractor a nonresident alien, as defined in 26 U.S.C. § 7701(b)(1)(B)?

(Check one box): |_| YES |_| NO Contractor Proof of Insurance and Insurance Requirements are listed in Exhibit C. All insurance listed must be in effect at the time of provision of services (when a Work Order Contract is executed) under this Price Agreement. Contractor is not required to provide insurance policy information at this time except for Workers’ Compensation, if applicable:

Workers’ Compensation: Does Contractor have any subject workers, as defined in ORS 656.027? (Check one box): |_| YES |_| NO If YES, provide the following information:

Workers’ Compensation Insurance Company:

Policy #: Expiration Date:

Business Designation: (Check one box):

b. Certification. Without limiting the generality of the foregoing, by signature on this Agreement, the undersigned hereby certifies that:

(1) Contractor will follow all insurance requirements listed in Exhibit C of this Agreement and notwithstanding any provision to the contrary, Contractor shall deliver to OHA Contract Administrator, the required Certificate(s) of Insurance prior to the execution of any Work Order Contract issued under this Agreement. Contractor further acknowledges that if Contractor is unable to provide the required insurance when requested by OHA, then a Work Order Contract will not be issued to Contractor. Contractor acknowledges they may be found in breach of the Agreement for failure to provide Certificate(s) of Insurance as required and to maintain required coverage for the duration of the Work Order Contract.

(2) Contractor acknowledges that the Oregon False Claims Act, ORS 180.750 to 180.785, applies to any “claim” (as defined by ORS 180.750) that is made by (or caused by) the Contractor and that pertains to this Price Agreement or to the project for which Work is being performed. Contractor certifies that no claim described in the previous sentence is or will be a “false claim” (as defined by ORS 180.750(1)) or an act prohibited by ORS 180.755. Contractor further acknowledges that in addition to the remedies under this Price Agreement, if it makes (or causes to be made) a false claim or performs (or causes to be performed) an act prohibited 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.

(3) The undersigned is authorized to act on behalf of Contractor and represents that Contractor has complied with the tax laws of the State of Oregon and the applicable tax laws of any political subdivision of Oregon. Contractor shall, throughout the duration of this Price Agreement and any extensions, comply with all tax laws of this state and all applicable tax laws of any political subdivision of Oregon. For the purposes of this section, “tax laws” include: (i) All tax laws of Oregon, including but not limited to ORS 305.620 and ORS chapters 316, 317, and 318; (ii) Any tax provisions imposed by a political subdivision of Oregon 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; (iii) Any tax provisions imposed by a political subdivision of Oregon that applied 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.

(4) The information shown in this Section 5., Contractor Data and Certification, is Contractor’s true, accurate and correct information;

(5) To the best of the undersigned’s knowledge, Contractor has not discriminated against and will not discriminate against minority, women or emerging small business enterprises certified under ORS 200.055 in obtaining any required subcontracts;

(6) Contractor and Contractor’s employees and agents are not included on the list titled “Specially Designated Nationals” maintained by the Office of Foreign Assets Control of the United States Department of the Treasury and currently found at: https://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx

(7) Contractor is not listed on the non-procurement portion of the General Service Administration’s “List of Parties Excluded from Federal procurement or Non-procurement Programs” found at: https://www.sam.gov/portal/public/SAM/; and

(8) Contractor is not subject to backup withholding because:

(a) Contractor is exempt from backup withholding;

(b) Contractor has not been notified by the IRS that Contractor is subject to backup withholding as a result of a failure to report all interest or dividends; or

(c) The IRS has notified Contractor that Contractor is no longer subject to backup withholding.

c. Contractor’s Federal Employer Identification Number (FEIN) or Social Security Number (SSN) provided is true and accurate. If this information changes, Contractor shall provide OHA with the new FEIN or SSN within 10 days.

By signatures below the parties agree to be bound by the terms and conditions of this Price Agreement.

6. Signatures. This Price Agreement and any subsequent amendments and Work Order Contracts may be executed in several counterparts, all of which when taken together shall constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Each copy of the Price Agreement and any amendments so executed shall constitute an original.

Contractor Name By:

State of Oregon, acting by and through its Oregon Health Authority By:

Approved for Legal Sufficiency:

Not required per OAR 137-045-0030(1)(a).

State of Oregon, acting by and through its Oregon Health Authority By:

EXHIBIT A, PART 1

Statement of Work Statement of Work will be negotiated with Highest Ranked Proposer(s).

Exhibit A, Part 2

Payment and Financial Reporting

1. The Not-to-Exceed amount for each project will be authorized by a Work Order Contract issued by OHA. No payment will be made for any services performed before the effective date or after the expiration date of a Work Order Contract. OHA will not pay any amount in excess of the amount set forth in a Work Order Contract unless that amount is increased by written amendment to the Work Order Contract and the amendment is signed by all parties.

2. Invoices:

a. Contractor shall submit all invoices for completed Work to the Program identified on the individual Work Order Contract, with a CC to the Agreement Administrator listed on page 1 of this Price Agreement, or to any other address as requested by OHA.

b. Final invoices shall be submitted within 45 days of the completion of the project. Invoices shall be in a format requested by OHA.

c. OHA reserves the right to request, in writing, full itemization and receipts for any billed item, including but not limited to any or all labor and/or direct costs billed by Contractor. Contractor shall provide receipts within five (5) business days of OHA request. Payment shall not be released on any subject invoice until all requested receipts have been received from Contractor.

d. Incomplete invoices or invoices that do not comply with the requirements and approved Work Order budget will be returned to the Contractor for correction.

e. OHA reserves the right to withhold final payment equal to five percent (5%) of any Work Order Contract amount until all required services are completed and accepted by OHA.

3. Payment Following OHA’s receipt and approval of Contractor’s invoices, and confirmation from the Program that the Work meets the Accessibility, Writing and Brand Standards described in RFP#5711, Section 2.3.2 “Standards”, OHA will pay Contractor for accepted and approved Work according to the payment methods defined in each Work Order Contract.

Service Categories and Rates Comment by Ford Coral D: Depending on how we are structuring the price proposals, we can include the negotiated rates here (i.e. hourly rate). Comment by Kristen Darmody: Thanks for noting that.

OHA has reviewed Contractor’s application in response to RFP:5711_____________ OHA finds that the Contractor is qualified to provide one or more of the required services within the categories marked with an “X” below:

☐Graphic Design Services ☐Writing Services ☐Multimedia Services ☐Printing and Distribution OHA shall pay Contractor for Work completed Deliverables under each individual Work Order Contract awarded to the Contractor.

Att A

Travel will be established in each individual Work Order Contract on a case-by-case basis.

Updated: July 2021

Updated: July 2021

Exhibit B Standard Terms and Conditions

1. Confidentiality of Information.

a. Non-Client Information:

(1) Each Party acknowledges that it and any of its officers, directors, employees and agents may, in the course of performing its responsibilities under the Price Agreement, be exposed to or acquire information that is confidential to the other Party. To the extent permitted by law, any and all information of any form provided to a Party or its officers, directors, employees and agents in the performance of this Price Agreement that reasonably could at the time of its disclosure be understood to be confidential shall be deemed to be confidential information of the originating Party (“Confidential Non-Client Information”).

(2) Confidential Non-Client Information shall be deemed not to include information that:

(a) Is or becomes (other than by disclosure by the Party acquiring such information) publicly known or is contained in a publicly available document except to the extent applicable law still restricts disclosure;

(b) Is furnished by the originating Party to others without restrictions similar to those imposed on the receiving Party under this Price Agreement;

(c) Is rightfully in the receiving Party’s possession without the obligation of nondisclosure prior to the time of its disclosure by the originating Party under this Price Agreement;

(d) Is obtained from a source other than the originating Party without the obligation of confidentiality;

(e) Is disclosed with the written consent of the originating Party; or

(f) Is independently developed by the receiving Party’s officers, directors, employees and agents who can be shown to have had no access to the Confidential Non-Client Information.

(3) Nondisclosure. The receiving Party shall hold all Confidential Non-Client Information in strict confidence, using at least the same degree of care that it uses in maintaining the confidentiality of its own confidential information; shall not sell, assign, license, market, transfer or otherwise dispose of, give or disclose Confidential Non-Client Information to third parties; shall not use Confidential Non-Client Information for any purposes whatsoever other than as contemplated by this Price Agreement or reasonably related thereto; and shall advise any of its officers, directors, employees and agents that receive or have access to the Confidential Non-Client Information of their obligations to keep Confidential Non-Client Information confidential. These confidentiality obligations do not restrict disclosure of information otherwise qualifying as Confidential Non-Client Information if the receiving Party can show that either of the following conditions exists: (i) the information was disclosed in response to a subpoena or court order duly issued in a judicial or legislative process, in which case the receiving Party shall notify the originating Party of the subpoena five days prior to the disclosure, unless such notice could not reasonably be given; or (ii) the disclosure was required to respond to a request for the information made under the Oregon Public Records Law, ORS 192.311 to 192.478. The receiving Party shall notify the originating Party of a public records request five days prior to the disclosure.

b. Return of Information. Upon request and pursuant to the instructions of OHA, Contractor shall return or destroy all copies of Confidential Information, and Contractor shall certify in writing the return or destruction of all Confidential Information.

2. Amendments.

a. OHA reserves the right to amend or extend this Price Agreement under the following general circumstances:

(1) OHA may extend this Price Agreement for additional periods of time up to a total Price Agreement period of 5 years so long as the extensions comply with the requirements of RFP: 5711. The determination for any extension for time may be based on OHA’s satisfaction with performance of the work or services provided by the Contractor under this Price Agreement.

(2) OHA may periodically amend any payment rates throughout the life of this Price Agreement proportionate to increases in Portland Metropolitan Consumer Price Index; and to provide Cost Of Living Adjustments (COLA) if OHA so chooses. Any negotiation of increases in rates to implement a COLA will be as directed by the Oregon State Legislature.

b. OHA further reserves the right to amend the Statement of Work based on the original scope of work of RFP:5711 for the following:

(1) Programmatic changes/additions or modifications deemed necessary to accurately reflect the original scope of work that may not have been expressed in the original Price Agreement or previous amendments to this Price Agreement;

(2) Implement additional phases of the Work; or

(3) As necessitated by changes in Code of Federal Regulations, Oregon Revised Statutes, or Oregon Administrative Rules which, in part or in combination, govern the provision of services provided under this Price Agreement.

c. Upon identification, by any party to this Price Agreement, of any circumstance which may require an amendment to this Price Agreement, the parties may enter into negotiations regarding the proposed modifications. Any resulting amendment must be in writing and be signed by all parties to this Price Agreement before the modified or additional provisions are binding on either party.

3. Governing Law, Consent to Jurisdiction. This Price Agreement shall be governed by and construed in accordance with the laws of the State of Oregon without regard to principles of conflicts of law. Any claim, action, suit or proceeding (collectively, “Claim”) between OHA or any other agency or department of the State of Oregon, or both, and Contractor that arises 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 it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. In no event shall this section be construed as a waiver by the State of Oregon of the jurisdiction of any court or of any form of defense to or immunity from any Claim, whether sovereign immunity, governmental immunity, immunity based on the eleventh amendment to the Constitution of the United States or otherwise. Each party hereby consents to the exclusive jurisdiction of such court, waives any objection to venue, and waives any claim that such forum is an inconvenient forum. This section shall survive expiration or termination of this Price Agreement.

4. Compliance with Law. Contractor shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to Contractor and the Price Agreement. OHA’s performance under the Price agreement is conditioned upon Contractor's compliance with the obligations of contractors under ORS 279B.220, 279B.230 and 279B.235, which are incorporated by reference herein. This section shall survive expiration or termination of this Price Agreement.

5. Independent Contractor.

a. Contractor is not an officer, employee, or agent of the State of Oregon as those terms are used in ORS 30.265 or otherwise.

b. If Contractor is currently performing work for the State of Oregon or the federal government, Contractor by signature to this Price Agreement, represents and warrants that Contractor's Work to be performed under this Price Agreement creates no potential or actual conflict of interest as defined by ORS Chapter 244 and that no statutes, rules or regulations of the State of Oregon or federal agency for which Contractor currently performs work would prohibit Contractor's Work under this Price Agreement. If compensation under this Price Agreement is to be charged against federal funds, Contractor certifies that it is not currently employed by the federal government.

c. Contractor is responsible for all federal and state taxes applicable to compensation paid to Contractor under this Price Agreement and, unless Contractor is subject to backup withholding, OHA will not withhold from such compensation any amounts 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 paid to Contractor under this Price Agreement, except as a self-employed individual.

d. Contractor shall perform all Work as an Independent Contractor, as defined in ORS 670.600. OHA reserves the right (i) to determine and modify the delivery schedule for the Work and (ii) to evaluate the quality of the Work Product, however, OHA may not and will not control the means or manner of Contractor's performance. Contractor is responsible for determining the appropriate means and manner of performing the Work.

6. Representations and Warranties.

a. Contractor's Representations and Warranties. Contractor represents and warrants to OHA that:

(1) Contractor has the power and authority to enter into and perform this Price Agreement;

(2) This Price Agreement, when executed and delivered, shall be a valid and binding obligation of Contractor enforceable in accordance with its terms;

(3) Contractor has the skill and knowledge possessed by well-informed members of its industry, trade or profession and Contractor will apply that skill and knowledge with care and diligence to perform the Work in a professional manner and in accordance with standards prevalent in Contractor's industry, trade or profession; and

(4) Contractor shall, at all times during the term of this Price Agreement, be qualified, professionally competent, and duly licensed to perform the Work.

b. Warranties Cumulative. The warranties set forth in this section are in addition to, and not in lieu of, any other warranties provided.

7. Funds Available and Authorized; Payments.

a. Contractor shall not be compensated for Work performed under this Price Agreement by any other agency or department of the State of Oregon or the federal government. OHA certifies that it has sufficient funds currently authorized for expenditure to finance the costs of this Price Agreement within OHA's current biennial appropriation or limitation. Contractor understands and agrees that OHA's payment for Work performed is contingent on OHA receiving appropriations, limitations, allotments or other expenditure authority sufficient to allow OHA, in the exercise of its reasonable administrative discretion, to continue to make payments under this Price Agreement.

b. Payment Method. Payments under this Price Agreement will be made by Electronic Funds Transfer (EFT) and shall be processed in accordance with State policy. Upon request, Contractor shall provide its taxpayer identification number (TIN) and other necessary banking information to receive EFT payment. Contractor shall maintain at its own expense a single financial institution or authorized payment agent capable of receiving and processing EFT using the Automated Clearing House (ACH) transfer method. The most current designation and EFT information will be used for all payments under this Price Agreement and corresponding Work Order Contracts. Contractor shall provide this designation and information on a form provided by OHA. In the event that EFT information changes or the Contractor elects to designate a different financial institution for the receipt of any payment made using EFT procedures, the Contractor shall provide the changed information or designation to OHA on an OHA-approved form. OHA is not required to make any payment under this Price Agreement or any corresponding Work Order Contract until receipt of the correct EFT designation and payment information from the Contractor.

8. Recovery of Overpayments. IF BILLINGS UNDER THIS PRICE AGREEMENT, OR UNDER ANY OTHER CONTRACT OR PRICE AGREEMENT BETWEEN CONTRACTOR AND OHA, RESULT IN PAYMENTS TO CONTRACTOR TO WHICH CONTRACTOR IS NOT ENTITLED, OHA, AFTER GIVING WRITTEN NOTIFICATION TO CONTRACTOR, MAY WITHHOLD FROM PAYMENTS DUE TO CONTRACTOR SUCH AMOUNTS, OVER SUCH PERIODS OF TIME, AS ARE NECESSARY TO RECOVER THE AMOUNT OF THE OVERPAYMENT UNLESS CONTRACTOR PROVIDES A WRITTEN OBJECTION WITHIN 14 CALENDAR DAYS FROM THE DATE OF THE NOTICE. ABSENT TIMELY WRITTEN OBJECTION, CONTRACTOR HEREBY REASSIGNS TO OHA ANY RIGHT CONTRACTOR MAY HAVE TO RECEIVE SUCH PAYMENTS. IF CONTRACTOR PROVIDES A TIMELY WRITTEN OBJECTION TO OHA’S WITHHOLDING OF SUCH PAYMENTS, THE PARTIES AGREE TO CONFER IN GOOD FAITH REGARDING THE NATURE AND AMOUNT OF THE OVERPAYMENT IN DISPUTE AND THE MANNER IN WHICH THE OVERPAYMENT IS TO BE REPAID. OHA RESERVES ITS RIGHT TO PURSUE ANY OR ALL OF THE REMEDIES AVAILABLE TO IT UNDER THIS PRICE AGREEMENT AND AT LAW OR IN EQUITY INCLUDING OHA’S RIGHT TO SETOFF.

9. Ownership of Work Product.

a. Definitions. As used in this section and elsewhere in this Price Agreement, the following terms have the meanings set forth below:

(1) “Contractor Intellectual Property” means any intellectual property owned by Contractor and developed independently from the Work.

(2) “Third Party Intellectual Property” means any intellectual property owned by parties other than OHA or Contractor.

(3) “Work Product” means every invention, discovery, work of authorship, trade secret or other tangible or intangible item and all intellectual property rights therein that Contractor is required to deliver to OHA pursuant to the Work.

b. Original Works. All Work Product created by Contractor pursuant to the Work, including derivative works and compilations, and whether or not such Work Product is considered a “work made for hire,” shall be the exclusive property of OHA. OHA and Contractor agree that all Work Product is “work made for hire” of which OHA is the author within the meaning of the United States Copyright Act. If for any reason the original Work Product created pursuant to the Work is not “work made for hire,” Contractor hereby irrevocably assigns to OHA any and all of its rights, title, and interest in all original Work Product created pursuant to the Work, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Upon OHA's reasonable request, Contractor shall execute such further documents and instruments necessary to fully vest such rights in OHA. Contractor forever waives any and all rights relating to original Work Product created pursuant to the Work, including without limitation, any and all rights arising under 17 U.S.C. §106A or any other rights of identification of authorship or rights of approval, restriction or limitation on use or subsequent modifications.

c. In the event that Work Product is Contractor Intellectual Property, a derivative work based on Contractor Intellectual Property or a compilation that includes Contractor Intellectual Property, Contractor hereby grants to OHA an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display Contractor Intellectual Property and the pre-existing elements of the Contractor Intellectual Property employed in the Work Product, and to authorize others to do the same on OHA's behalf.

d. In the event that Work Product is Third Party Intellectual Property, a derivative work based on Third Party Intellectual Property or a compilation that includes Third Party Intellectual Property, Contractor shall secure on OHA's behalf and in the name of OHA an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Third Party Intellectual Property and the pre-existing elements of the Third Party Intellectual Property employed in the Work Product, and to authorize others to do the same on OHA’s behalf.

10. Indemnity.

a. CONTRACTOR SHALL DEFEND (SUBJECT TO ORS CHAPTER 180), SAVE, HOLD HARMLESS, AND INDEMNIFY THE STATE OF OREGON AND OHA AND THEIR OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ALL CLAIMS, SUITS, ACTIONS, LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES OF ANY NATURE WHATSOEVER, INCLUDING ATTORNEYS FEES, RESULTING FROM, ARISING OUT OF, OR RELATING TO THE ACTIVITIES OF CONTRACTOR OR ITS OFFICERS, EMPLOYEES, SUBCONTRACTORS, OR AGENTS UNDER THIS PRICE AGREEMENT.

b. INDEMNITY FOR INFRINGEMENT CLAIMS. WITHOUT LIMITING THE GENERALITY OF SECTION 10.a., CONTRACTOR EXPRESSLY AGREES TO DEFEND, INDEMNIFY, AND HOLD OHA, THE STATE OF OREGON AND THEIR AGENCIES, SUBDIVISIONS, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES HARMLESS FROM ANY AND ALL CLAIMS, SUITS, ACTIONS, LOSSES, LIABILITIES, COSTS, EXPENSES, INCLUDING ATTORNEYS FEES, AND DAMAGES ARISING OUT OF OR RELATED TO ANY CLAIMS THAT THE WORK, THE WORK PRODUCT OR ANY OTHER TANGIBLE OR INTANGIBLE ITEMS DELIVERED TO OHA BY CONTRACTOR THAT MAY BE THE SUBJECT OF PROTECTION UNDER ANY STATE OR FEDERAL INTELLECTUAL PROPERTY LAW OR DOCTRINE, OR OHA'S USE THEREOF, INFRINGES ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK, TRADE DRESS, MASK WORK, UTILITY DESIGN, OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY; PROVIDED, THAT THE STATE OF OREGON SHALL PROVIDE CONTRACTOR WITH PROMPT WRITTEN NOTICE OF ANY INFRINGEMENT CLAIM.

THIS SECTION SHALL SURVIVE EXPIRATION OR TERMINATION OF THIS PRICE AGREEMENT.

11. Default; Remedies; Termination.

a. Default by Contractor. Contractor shall be in default under this Price Agreement if:

(1) 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; or

(2) Contractor no longer holds a license or certificate that is required for Contractor to perform its obligations under this Price Agreement and Contractor has not obtained such license or certificate within 14 calendar days after OHA's notice or such longer period as OHA may specify in such notice; or

(3) Contractor commits any material breach or default of any covenant, warranty, obligation or agreement under this Price Agreement, fails to perform the Work under this Price Agreement within the time specified herein or any extension thereof, or so fails to pursue the Work as to endanger Contractor’s performance under this Price Agreement in accordance with its terms, and such breach, default or failure is not cured within 14 calendar days after OHA’s notice, or such longer period as OHA may specify in such notice.

(4) Contractor failed to comply with the tax laws of this state or a political subdivision of this state before the Contractor executed this Contract or fails to comply with the tax laws of this state or a political subdivision of this state during the term of this Contract.

b. OHA’s Remedies for Contractor’s Default. In the event Contractor is in default under Section 11.a., OHA may, at its option, pursue any or all of the remedies available to it under this Price Agreement and at law or in equity, including, but not limited to:

(1) termination of this Price Agreement under Section 11.e.(2);

(2) withholding all monies due for Work and Work Products that Contractor has failed to deliver within any scheduled completion dates or has performed inadequately or defectively;

(3) initiation of an action or proceeding for damages, specific performance, or declaratory or injunctive relief; or

(4) exercise of its right of recovery of overpayments under Section 8.

These remedies are cumulative to the extent the remedies are not inconsistent, and OHA may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever. If a court determines that Contractor was not in default under Section 11, then Contractor shall be entitled to the same remedies as if this Price Agreement was terminated pursuant to Section 11.e.(1).

c. Default by OHA. OHA shall be in default under this Price Agreement if OHA commits any material breach or default of any covenant, warranty, or obligation under this Price Agreement, and such breach or default is not cured within 30 calendar days after Contractor's notice or such longer period as Contractor may specify in such notice.

d. Contractor’s Remedies for OHA’s Default. In the event OHA terminates this Price Agreement under Section 11.e.(1), or in the event OHA is in default under Section 11.c. and whether or not Contractor elects to exercise its right to terminate this Price Agreement under Section 11.e.(3), Contractor's sole monetary remedy shall be (i) with respect to Work compensable at a stated rate, a claim for unpaid invoices, time worked within any limits set forth in this Price Agreement but not yet invoiced, authorized expenses incurred and interest within the limits permitted under ORS 293.462, and (ii) with respect to deliverable-based Work, a claim for the sum designated for completing the deliverable multiplied by the percentage of Work completed and accepted by OHA, less previous amounts paid and any claim(s) that OHA has against Contractor. In no event shall OHA be liable to Contractor for any expenses related to termination of this Price Agreement or for anticipated profits. If previous amounts paid to Contractor exceed the amount due to Contractor under this Section 11.d., Contractor shall immediately pay any excess to OHA upon written demand. If Contractor does not immediately pay the excess, OHA may recover the overpayments in accordance with Section 8, Recovery of Overpayments, and may pursue any other remedy that may be available to it.

e. Termination.

(1) OHA’s Right to Terminate at its Discretion. At its sole discretion, OHA may terminate this Price Agreement:

(a) For its convenience upon 30 days’ prior written notice by OHA to Contractor;

(b) Immediately upon written notice if OHA fails to receive funding, appropriations, limitations, allotments or other expenditure authority at levels sufficient to pay for the Work or Work Products; or

(c) Immediately upon written notice if federal or state laws, regulations, or guidelines are modified or interpreted in such a way that OHA’s purchase of the Work or Work Products under this Price Agreement is prohibited or OHA is prohibited from paying for such Work or Work Products from the planned funding source.

(d) Immediately upon written notice to Contractor if there is a threat to the health, safety, or welfare of any recipient of services under this Price Agreement “OHA Client”, including any Medicaid Eligible Individual, under its care.

(2) OHA’s Right to Terminate for Cause. In addition to any other rights and remedies OHA may have under this Price Agreement, OHA may terminate this Price Agreement immediately upon written notice to Contractor, or at such later date as OHA may establish in such notice, if Contractor is in default under Section 11.a.

(3) Contractor's Right to Terminate for Cause. Contractor may terminate this Price Agreement upon 30 days written notice to OHA, or at such later date as Contractor may establish in such notice, if OHA is in default under Section 11.c. and OHA fails to cure such default within 30 calendar days after OHA receives Contractor's notice or such longer period as Contractor may specify in such notice.

(4) Mutual Termination. This Price Agreement may be terminated immediately upon mutual written consent of the parties or at such other time as the parties may agree in the written consent.

(5) Return of Property. Upon termination of this Price Agreement for any reason whatsoever, Contractor shall immediately deliver to OHA all OHA’s property that is in the possession or under the control of Contractor at that time. This Section 11.e.(5) survives the expiration or termination of this Price Agreement.

(6) Effect of Termination: Upon receiving a notice of termination of this Price Agreement, or upon issuing a notice of termination to OHA, Contractor shall immediately cease all activities under this Price Agreement, unless in a notice issued by OHA, OHA expressly directs otherwise.

12. Stop-Work Order. OHA may, at any time, by written notice to the Contractor, require the Contractor to stop all, or any part of the work required by this Price Agreement and related Work Order Contracts for a period of up to 90 days after the date of the notice, or for any further period to which the parties may agree through a duly executed amendment. Upon receipt of the notice, Contractor shall immediately comply with the stop-work order terms and take all necessary steps to minimize the incurrence of costs allocable to the Work affected by the stop-work order notice. Within a period of 90 days after issuance of the written notice, or within any extension of that period to which the parties have agreed, OHA shall either:

a. Cancel or modify the stop-work order by a supplementary written notice; or

b. Terminate the work as permitted by either the Default or the Convenience provisions of Section 11., Default; Remedies; Termination.

If the stop-work order is canceled, OHA may, after receiving and evaluating a request by the Contractor, make an adjustment in the time required to complete this Price Agreement and the Work Order Contract price, by a duly executed amendment.

13. Limitation of Liabilities. EXCEPT FOR LIABILITY ARISING UNDER OR RELATED TO SECTION 10. INDEMNITY, NEITHER PARTY SHALL BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS PRICE AGREEMENT.

14. Insurance. Contractor shall maintain insurance as set forth in Exhibit C, attached hereto.

15. Records Maintenance, Access. Contractor shall maintain all financial records relating to this Price Agreement in accordance with generally accepted accounting principles. In addition, Contractor shall maintain any other records, books, documents, papers, plans, records of shipments and payments and writings of Contractor, whether in paper, electronic or other form, that are pertinent to this Price Agreement, in such a manner as to clearly document Contractor's performance. All financial records, other records, books, documents, papers, plans, records of shipments and payments and writings of Contractor whether in paper, electronic or other form, that are pertinent to this Price Agreement, are collectively referred to as “Records.” Contractor acknowledges and agrees that OHA and the Secretary of State's Office and the federal government and their duly authorized representatives shall have access to all Records to perform examinations and audits and make excerpts and transcripts. Contractor shall retain and keep accessible all Records for the longest of:

a. Six years following final payment and termination of this Price Agreement;

b. The period as may be required by applicable law, including the records retention schedules set forth in OAR Chapter 166; or

c. Until the conclusion of any audit, controversy or litigation arising out of or related to this Price Agreement.

16. Information Privacy/Security/Access. If the Work performed under this Price Agreement requires Contractor or, when allowed, its subcontractor(s), to have access to or use of any OHA computer system or other OHA Information Asset for which OHA imposes security requirements, and OHA grants Contractor or its subcontractor(s) access to such OHA Information Assets or Network and Information Systems, Contractor shall comply and require all subcontractor(s) to which such access has been granted to comply with OAR 943-014-0300 through OAR 943-014-0320, as such rules may be revised from time to time. For purposes of this section, “Information Asset” and “Network and Information System” have the meaning set forth in OAR 943-014-0305, as such rule may be revised from time to time.

17. Force Majeure. No party is responsible for delay or default caused by an event beyond its reasonable control. OHA may terminate this Price Agreement upon written notice after reasonably determining the delay or default reasonably prevents performance of this Price Agreement.

18. Foreign Contractor. If Contractor is not domiciled in or registered to do business in the State of Oregon, Contractor shall promptly provide to the Department of Revenue and the Secretary of State Corporation Division all information required by those agencies relative to this Price Agreement.

19. Subcontracts; Assignment; Successors. Contractor shall not assign, transfer, or subcontract rights or responsibilities under this Price Agreement in whole or in part, without the prior written approval of OHA. This Price Agreement’s provisions are binding upon and inure to the benefit of the parties to this Price Agreement and their respective successors and assigns.

20. No Third-Party Beneficiaries. OHA and Contractor are the only parties to this Price Agreement and are the only parties entitled to enforce its terms. Nothing in this Price Agreement gives, is intended to give, or shall be construed to give or provide any benefit or right, whether directly, indirectly or otherwise, to third persons any greater than the rights and benefits enjoyed by the general public unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Price Agreement. This section shall survive expiration or termination of this Price Agreement.

21. Severability. The parties agree that if any term or provision of this Price Agreement is declared by a court of competent jurisdiction to be illegal or in conflict with any law, 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 this Price Agreement did not contain the particular term or provision held to be invalid. This section shall survive expiration or termination of this Price Agreement.

22. Notice. Except as otherwise expressly provided in this Price Agreement, any notices to be given hereunder shall be given in writing by personal delivery, facsimile, or mailing the same, postage prepaid to Contractor or OHA at the address or number set forth in this Price Agreement, or to such other addresses or numbers as either party may indicate pursuant to this section. Any notice so addressed and mailed by regular is effective five days after the date of mailing. Any notice delivered by facsimile shall be deemed received and effective on the day the transmitting machine generates a receipt of the successful transmission, if transmission was during normal business hours of the recipient, or on the next business day if transmission was outside normal business hours of the recipient. Notwithstanding the foregoing, to be effective against the other party, any notice transmitted by facsimile must be confirmed by telephone notice to the other party. Any notice given by personal delivery shall be deemed effective when actually delivered to the addressee. Any notice given by email is effective when the sender receives confirmation of delivery, either by return email, or by demonstrating through other technological means that the email has been delivered to the intended email address.

This section shall survive expiration or termination of this Price Agreement.

23. Amendments; Waiver; Consent. OHA may amend this Price Agreement to the extent provided herein, the solicitation document, if any from which this Price Agreement arose, and to the extent permitted by applicable statutes and administrative rules. No amendment, waiver, or other consent under this Price Agreement shall bind either party unless it is in writing and signed by both parties and when required, the Department of Justice. Such amendment, waiver, or consent shall be effective only in the specific instance and for the specific purpose given. The failure of either party to enforce any provision of this Price Agreement shall not constitute a waiver by that party of that or any other provision. This section shall survive the expiration or termination of this Price Agreement.

24. Contractor’s Failure to Perform. Contractor’s failure to perform the statement of work specified in this Price Agreement or to meet the performance standards established in this Price Agreement, may result in consequences that include, but are not limited to:

Declaring a default of this Price Agreement and pursuing any available remedies for default, including termination of this Price Agreement as permitted in Section 11. Default; Remedies; Termination of this Price Agreement.

25. HIPAA Compliance, as applicable. The health care component of OHA is a Covered Entity and must comply with the Health Insurance Portability and Accountability Act and the federal regulations implementing the Act (collectively referred to as HIPAA). If Contractor is a Business Associate of the health care component of OHA, Contractor must comply with OAR 943-014-0400 through OAR 943-014-0465 and the Business Associate requirements set forth in 45 CFR 164.502 and 164.504.

Contractor shall be liable to OHA and shall indemnify OHA for any and all costs incurred by OHA, including, but not limited to, costs of issuing any notices required by HIPAA, HITECH or any other applicable law, as a result of Contractor’s “Breach of Unsecured Protected Health Information.”

a. Consultation and Testing. If Contractor reasonably believes that the Contractor’s or OHA’s data transactions system or other application of HIPAA privacy or security compliance policy may result in a violation of HIPAA requirements, Contractor shall promptly consult the OHA Information Security Office. Contractor or OHA may initiate a request for testing of HIPAA transaction requirements, subject to available resources and the OHA testing schedule.

b.…