AttachmentA_SamplePrice Agreement~1.doc

ATTACHMENT A – SAMPLE PRICE AGREEMENT

STATE OF OREGON PRICE AGREEMENT

FOR: FLEET SERVICES UNIFORM RENTAL & LAUNDRY SERVICES, & SHOP SUPPLIES

This Price Agreement (“Price Agreement” or “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 Department of administrative Services, Fleet Services (“Agency”), and CONTRACTOR (“Contractor”). This Agreement is effective on the date that it has been fully executed by the parties and approved as required by law (“Effective Date”). DAS has the authority to enter into this Agreement under ORS 279A.050 (7) (a).

RECITALS

A. DAS PS, on behalf of the Agency, desired to engage contractor to provide certain Uniform Rental & Laundry Services, & Shop Supplies (“Services”).

B. To that end, DAS PS issued Request for Proposal (“RFP”) No. S-10700-00000673 seeking proposals from Uniform Rental & Laundry Services, & Shop Supplies providers.

C. Contractor submitted a proposal in response to the RFP offering to provide to the agency the Services described in RFP. Contractor was one of the successful proposers to the RFP.

D. DAS PS and Contractor now desire to memorialize the terms and conditions pursuant to which: (i) Contractor will provide the Services as may be requested from the Agency from time to time; and (ii) Agency will pay for the provided Services.

Therefore, DAS and Contractor Agree as follows:

SECTION 1: AGREEMENT

1.1 Purpose.

This Agreement:

Identifies the process Contractor and Agency will follow in establishing subsequent purchase orders (each a “Purchase Order” or “PO”) for the provision of Services under this Agreement;

Sets forth the general terms and conditions that will apply to all POs entered into by Contractor and Agency and all POs issued by Agency pursuant to which Contractor will provide Services (as defined in Exhibit A, Statement of Work); and 1.1.1.3 Agency makes no representation or guarantee that any specific amount of purchases will be made under this Price Agreement.

Contractor accepts all risks, and waives any claims, that may be associated with or arise out of the volume of the Services or work ordered under this Agreement.

SECTION 2: AGREEMENT DOCUMENTS and ORDER of PRECEDENCE This Agreement includes the following Exhibits, each of which are attached to and incorporated into this Agreement by reference:

· Exhibit A – Statement of Work

· Exhibit B – Pricing

· Exhibit C – Insurance

· Exhibit D – Sample Purchase Order ORDER of PRECEDENCE.

An Ordering Instrument (Purchase Order) consists of the following documents, listed in order of precedence:

a) Federal terms and conditions attached to the Ordering Instrument, if any;

b) This Agreement including its Attachments; and

c) The Ordering Instrument, less any federal terms and conditions.

In the event any conflict is based solely upon minimum standards, such as quality or safety, the higher or more stringent standard applies. Contractor is responsible for making any modifications required to achieve compliance with applicable laws and standards. Contractor shall notify DAS PS and Agency of any such required modifications upon receipt of knowledge or notification of such.

SECTION 3: DEFINITIONS

“Agency” means:

· DAS when DAS is engaged in Public Contracting, as defined in ORS 279A.010;

· An agency of the State of Oregon that: (i) is subject to the procurement authority of the Director of the Department pursuant to ORS 279A.050 and 279A.140 and with delegated authority pursuant to OAR 125-246-0170; or (ii) has independent procurement authority pursuant to ORS 279A.050 or other statutory authority under provisions of applicable State law;

“Contract” means the agreement formed by an Authorized Purchaser’s issuance of a Purchase Order to Contractor or by an Authorized Purchaser’s establishment of a Service Order Contract with Contractor.

“Services” means the Services that Contractor has been approved to provide as a result of the RFP and which Contractor agrees to provide under a Purchase Order (PO) as may be requested by Agency from time to time. The specific Services performed by Contractor shall be agreed to by Agency and Contractor in a fully executed Purchase Order and will include the Services described in Exhibit A, Statement of Work.

SECTION 4: ORDERING METHODS; PROVISION OF SERVICES

Contractor must look solely to Agency for payment of all amounts that may be due under any Contract formed under this Agreement. AGENCY IS SOLELY RESPONSIBLE FOR PAYMENT UNDER THE CONTRACT.

Payment is due from Agency within forty five (45) days after the date of the invoice pursuant to ORS 293.462(4) and Oregon Accounting Manual (OAM) Section 15.40.00.PR.111.

Agency shall obtain Contractor’s Services by following the instructions provided in Exhibit A, Statement of Work.

4.1 Purchase Orders

Agency shall order Services by issuing Purchase Orders as follows:

Agency shall submit Purchase Orders to Contractor identifying any agreed upon Service details.

To be effective, the Purchase Order must specify all of the following:

· The specific Services and/or items ordered.

· The net price.

· The requested delivery schedule.

· The delivery location(s).

· The invoicing address.

· The Agency’s authorized representative contact information including email address.

Contractor shall accept Purchase Orders from Agency that comply with the provisions of this Price Agreement until this Price Agreement terminates. Each such Purchase Order Contractor accepts shall create a separate Contract between the parties, enforceable in accordance with the terms thereof and independent of all other such Contracts.

A Contract created by a Purchase Order consists only of the terms specified or required by this Price Agreement. Additional, different or conflicting terms and conditions in any Purchase Order are of no effect. Contractor shall reject any Purchase Order that does not meet the requirements of this Price Agreement.

MANDATORY PURCHASE ORDER LANGUAGE:

THIS PURCHASE IS SUBMITTED PURSUANT TO OREGON DAS PRICE AGREEMENT # DASPS-3262-19. THE PRICE AGREEMENT, INCLUDING STANDARD CONTRACT TERMS AND CONDITIONS (T'S & C'S) CONTAINED IN THE PRICE AGREEMENT, IS INCORPORATED BY REFERENCE AND APPLIES TO THIS PURCHASE AND TAKES PRECEDENCE OVER ALL OTHER CONFLICTING T'S AND C'S, EXPRESS OR IMPLIED.

SECTION 5: CONSIDERATION

Contractor shall be compensated for completing Services and providing goods based on the prices and rates specified in Exhibit B Pricing (“Pricing”). All Pricing include all overhead and administrative expenses and Agency shall not be charged separately for any such costs incurred by Contractor.

SECTION 6: INVOICING

Contractor shall invoice Agency for the Services as agreed to in the applicable Purchase Order. Contractor must submit invoices to the Agency monthly, may bill only for Services actually performed or goods delivered, and shall be paid only in accordance with the applicable ordering mechanism terms. Payment shall be subject to the Agency’s review and approval of invoices submitted by Contractor. Invoices that are unclear, vague or contain fees not previously agreed upon may be rejected by theAgency.

Payment terms shall be Net 45 days pursuant to Oregon Revised Statute (ORS) 293.462(4) and OAM Section 15.40.00.PR.111.

Contractor shall include the following in each invoice:

· The PO number(s)

· The quantity ordered of garments or shop supplies (“Items”)

· The price per Item

· The date Items were delivered

· Detailed description of Services performed and the date the Services were performed.

· Total amount due and the payment address

All payments are subject to the provisions of ORS 293.462 and shall not exceed any total maximum not-to-exceed compensation set forth in any PO. AllPrices invoiced by Contractor shall be charged at the rates agreed to in Section 5 above. The Agency shall have no liability for any Prices or expenses that are charged in amounts that exceed those agreed to in Section 5 above nor shall Agency have any liability for any Prices, expenses, or any other fees that exceed the maximum not-to-exceed compensation agreed to in a PO.

SECTION 7: TERM OF AGREEMENT; AMENDMENTS

7.1 Term

The initial term of this Price Agreement shall be two (2) year, beginning on the date this Price Agreement has been executed and all required approvals have been obtained (the “Term”).

On concurrence of the parties, this Price Agreement may be extended for additional extension terms ("Extension Terms"). It is provided, however, that the maximum term of this Agreement, including all Extension Terms, shall not exceed ten (10) years, beginning on the Effective Date. POs executed prior to the expiration of this Agreement may not extend more than one month beyond the expiration of this Agreement. POs may not be extended after the expiration of this Agreement.

7.2 Extension of Term

Agency reserves the right in its sole discretion to extend the term of this Agreement for not more than one calendar month beyond any term or beyond this Agreement’s maximum term. Agency shall notify Contractor in writing of the one-month extension at least 30 calendar days before the term expires. Contractor may not increase pricing during the one-month extension obtained pursuant to this section.

7.3 Anticipated Amendments

The parties anticipate that during the term of the Agreement, the parties may need to modify selected terms and conditions of this Agreement. Any Amendments agreed to shall be made in accordance with OAR 125-247-0805 and ORS 279A.210(1)(c), which shall be incorporated by reference as though fully set forth in this section. Amendments that may be required could include, without limitation, those relating to (i) changes in the State's business process or restructure of an Agency, (ii) additional Services that are within the scope of the original procurement and the Agreement, (iii) certain Services that are no longer required to be performed, and (iv) Pricing changes but only in accordance with Section 5 above.

7.4 Amendments

No waiver, consent, or amendment of terms to this Agreement, including any Exhibits, and POs, shall be binding unless in writing and signed by the authorized representatives of the applicable parties, and all approvals required by applicable law have been obtained. Pursuant to ORS 279A.210(1)(c) a PO may not amend any of the material terms or conditions of this Agreement. Any PO that amends this Agreement in accordance with ORS 279A.210(1)(c) shall expressly state that the amended terms are for purposes of such PO only and must include the signature of an authorized representative of DAS. In no event shall any permitted amendatory PO serve to amend this Agreement for the purposes of any other PO.

SECTION 8: INDEPENDENT CONTRACTOR; RESPONSIBILITY FOR TAXES AND WITHHOLDING

8.1 Independent Contractor

Contractor shall perform all Services as an independent contractor. Agency reserve the right to (i) determine and modify the delivery schedule for the Services and (ii) evaluate the quality of the Services. However, Agency may not control, nor will they control, the means or manner of Contractor's performance. Contractor is responsible for determining the appropriate means and manner of performing the Services.

8.2 No Agency or Employment

Contractor understands and agrees that Contractor is not an "officer," "employee," or "agent" of DAS or Agency, as those terms are used in ORS 30.265.

8.3 Responsibility for Taxes

Contractor shall be responsible for all federal or state taxes applicable to compensation or payments paid to Contractor under any PO and, unless Contractor is subject to backup withholding, Agency 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 the PO, except as a self‑employed individual.

Tax Compliance. Contractor warrants that Contractor 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 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: (i) All tax laws of this State, 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 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; (iii) 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 (iv) Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions.

Any failure to comply with the provisions of the previous paragraph (“Tax Compliance”), including Contractor’s warranty set forth in the first sentence of that paragraph, constitutes a material breach of this Agreement. Any such failure to comply shall entitle Agency to terminate this Agreement, to pursue and recover any and all damages that arise from the breach and the termination of this Agreement, and to pursue any or all of the remedies available under this Agreement, at law, or in equity, including but not limited to:

· Termination of this Agreement, in whole or in part;

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

· Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief.

Agency may recover any and all damages suffered as the result of Contractor's breach of this Agreement, including but not limited to direct, indirect, incidental and consequential damages, costs of cure, and costs incurred in securing replacement Services.

In addition, DAS will report this Agreement to the Oregon Department of Revenue. The Department of Revenue may take any and all actions permitted by law relative to the collection of taxes due to the State of Oregon or a political subdivision, including: (i) garnishing Contractor’s compensation under this Agreement or any PO issued by a state agency; and (ii) exercising a right of setoff for any amounts that may be due and unpaid.

SECTION 9: CONFLICTS OF INTEREST

If Contractor is currently performing services for the State of Oregon or the federal government, Contractor represents and warrants that: Contractor’s Services to be performed under a PO create no potential or actual conflict of interest as defined by ORS chapter 244, and no statutes, rules or regulations of the state or federal agency for which Contractor currently performs services would prohibit Contractor’s Services under any SOC or PO.

SECTION 10: COMPLIANCE WITH APPLICABLE LAW. AGENCY POLICIES AND PROCEDURES

10.1 Contractor shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to this Agreement, to any POs, or to the performance of the Services, as those provisions may be adopted or amended from time to time. Agency’s performance under each PO 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. Contractor shall, to the maximum extent economically feasible in the performance of any PO, use recycled paper (as defined in ORS 279A.010(1)(ee)), recycled PETE products (as defined in ORS 279A.010(1)(ff)), and other recycled products (as “recycled product” is defined in ORS 279A.010(1)(gg).

10.2 Without limiting the generality of Sections 8.3 and 10.1 above, Contractor must, throughout the duration of this Agreement, comply with all tax laws of the State and all applicable tax laws of any political subdivision of the State. For the purposes of this section, “tax laws” includes all the provisions described in Section 14.7 below.

10.3 Contractor shall comply with all policies and procedures of Agency with whom Contractor enters into a PO, including, without limitation, those relating to access to and use of facilities, criminal background and driving record checks, use and dissemination of Agency information, and use of information technology and other tangible or intangible Agency assets. Contractor shall require the same from its Key Persons.

10.4 Pay Equity Compliance.

As required by ORS 279B.235, Contractor must comply with ORS 652.220 and shall not unlawfully discriminate against any of Contractor’s employees in the payment of wages or other compensation for work of comparable character on the basis of an employee’s membership in a protected class. “Protected class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability, or age. Contractor’s compliance with this Section and with Section 10.5 constitutes a material element of this Price Agreement and a failure to comply constitutes a breach that entitles DAS to terminate this Price Agreement for cause

10.5 As required by ORS 279B.235, Contractor may not prohibit any of its employees from discussing the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person. Contractor may not retaliate against an employee who discusses the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person.

10.6 Nondiscrimination in Employment. Contractor certifies, in accordance with ORS 279A.112, that Contractor has in place a written policy and practice of preventing sexual harassment, sexual assault, and discrimination against employees who are members of a protected class, as defined by ORS 279A.112. As a material term of this Agreement, Contractor must maintain, throughout the duration of this Agreement, a policy and practice that complies with ORS 279A.112. Contractor’s policy and practice must include giving employees a written notice of a policy that both prohibits, and prescribes disciplinary measures for, conduct that constitutes sexual harassment, sexual assault, or unlawful discrimination. Agency reserves the right to request a copy of Contractor’s policy.

10.7 Notwithstanding anything that may be to the contrary in this Price Agreement, the following paragraph shall be incorporated into any resulting Purchase Order:

Contractor and Agency shall provide DAS PS with written notice of any dispute arising between those parties involving Price Agreement, or Purchase Order Contract performance issues, such as disputes concerning the provision of Services or Compliance with specifications, that those parties have been unable to resolve.

SECTION 11: [RESERVED]

SECTION 12: SPECIAL QUALIFICATIONS NO SUBCONTRACTS; SUCCESSORS AND ASSIGNMENTS

12.1 Special Qualifications;

No Subcontracts. Contractor was a successful proposer under Request for Proposal No. S-10700-00000673, a competitive, sealed procurement process, and was awarded the opportunity to enter into this Agreement as a result of an evaluation that Contractor possessed the special qualifications, experience, training, and integrity desired by Agency. Contractor acknowledges that this Agreement is entered into as a result of the special qualifications, experience, training, and integrity of Contractor or, if Contractor is other than an individual, Contractor’s Key Persons. Therefore, Contractor acknowledges and agrees that Contractor shall not delegate to any third party, Contractor employee, agent, or subcontractor, any performance of its powers and responsibilities it is required to provide under this Agreement any PO. Further, Contractor shall not enter into any subcontracts for any of the Services required to be performed under this Agreement and shall not otherwise assign, delegate, transfer any of Contractor’s rights or obligations under this Agreement.

If Contractor is other than an individual, Contractor understands and agrees that the prohibition against the delegation and subcontracting of Services, and the reasons for such prohibition, as set forth in Section 12.1.1 are applicable to Contractor’s Key Person(s) identified in this section:

Contractor’s Key Person(s) & Contact Information

Key Person # 1 Name:

Title:

Phone:

Email:

Key Person # 2 Name:

Title:

Phone:

Email:

Contractor may not assign, transfer or subcontract any of its rights under this Agreement, or delegate or subcontract any duties or obligations under this Agreement, except with the prior written consent of Agency. All assignments, transfers or subcontracting of rights are prohibited under this subsection, whether they are voluntary or involuntary, by merger, consolidation, stock transfer, asset sale, change in control, dissolution, operation of law, or by any other manner.

Any purported assignment, transfer, or subcontracting of rights or delegation or subcontracting of duties or obligations in violation of this section is void.

Agency’s consent given for any of the actions described in this Section 12.1 shall not relieve Contractor of any of its duties or obligations under this Agreement.

Successors and Assigns. The provisions of this Agreement and any and all POs shall be binding upon and inure to the benefit of the parties, their respective successors, and permitted assigns, if any.

Agency reserves the right to require any successors, assigns, or subcontractors to undergo a responsibility determination equivalent to that which was a contingency of the award of this Price Agreement.

SECTION 13: INTELLECTUAL PROPERTY

13.1 Definitions. The following terms have the meanings set forth below:

“Contractor Intellectual Property” means any intellectual property owned by Contractor and developed independently from the Services provided pursuant to a SOC.

“Third Party Intellectual Property” means any intellectual property owned by parties other than Agency or Contractor.

“Work Product” means every invention, discovery, work of authorship, trade secret or other tangible or intangible item and all intellectual property rights therein that is specifically made, conceived, discovered or reduced to practice by Contractor (either alone or with others) pursuant to this Agreement or a PO.

13.2 Ownership of Certain Work Product. Work Product that is required to be delivered to Agency as a deliverable (“Deliverable”) as agreed to under a PO shall be the exclusive property of Agency. Agency and Contractor agree that Deliverables which are required to be delivered to and which are paid for by Agency shall be “work made for hire” of which Agency is the author within the meaning of the United States Copyright Act. If for any reason any such Deliverable(s) is not “work made for hire,” Contractor irrevocably assigns to Agency any and all of its rights, title, and interest in such Deliverable(s). Upon Agency’s reasonable request, Contractor shall execute such further documents and instruments necessary to fully vest such rights in Agency.

13.3 Contractor Intellectual Property. Contractor retains ownership of all Contractor Intellectual Property that Contractor delivers to Agency pursuant to the Services performed under this Agreement or a PO. Contractor shall be the owner of all Work Product that is not “work made for hire” as identified in Section 13.2 above. Contractor grants Agency a license to use any and all Contractor Intellectual Property incorporated into any Work Product.

13.4 Third Party Intellectual Property. In the event Contractor uses any Third Party Intellectual Property in performing the Services, Contractor shall obtain a license to use all such Intellectual Property. Contractor shall also, in the event Contractor incorporates any Third Party Intellectual Property into any Work Product, secure on Agency’s behalf, in the name of Agency and subject to Agency’s approval, a license to all Third Party Intellectual Property that Contractor incorporates into any Work Product.

13.5 Agency Intellectual Property; Data and Background Information. Agency owns all Agency Intellectual Property and Agency data and background information provided to Contractor pursuant to this Agreement and any PO. Agency grants Contractor a non-exclusive, royalty-free, world-wide license to use, copy, display, distribute, transmit, and prepare derivative works of Agency Intellectual Property and Agency data and background information only to fulfill the purposes of this Agreement and any PO. Agency’s license to Contractor is limited by the term of the applicable PO and the confidentiality obligations of this Agreement.

13.6 No Rights. Except as expressly set forth in this Agreement, nothing in this Agreement or in any PO shall be construed as granting to or conferring upon Contractor any right, title, or interest in any intellectual property that is now owned or subsequently owned by Agency. Except as expressly set forth in this Agreement or PO, nothing in this Agreement shall be construed as granting to or conferring upon Agency any right, title, or interest in any Contractor Intellectual Property that is now owned or subsequently owned by Contractor. Neither DAS PS nor Agency grants Contractor the right to use their respective trademarks, trade names, service marks, or other designations in any promotion or publication without prior written consent.

SECTION 14: CONTRACTOR’S REPRESENTATIONS AND WARRANTIES

Contractor represents and warrants to Agency that:

14.1 Authority. Contractor has the power and authority, including the legal capacity, to enter into and perform the Services required under this Agreement and the applicable PO;

14.2 Enforceability of POs. Each PO issued under this Agreement, when executed and delivered, is a valid and binding obligation of Contractor enforceable in accordance with its terms;

14.3 No Violations. Contractor is not in violation of, charged with nor, to the best of Contractor’s knowledge, under any investigation with respect to violation of, any provision of any federal, state or local law, ordinance, regulation, or any other requirement or order of any governmental or regulatory body or court or arbitrator applicable to provision of the Services, and Contractor’s provision of the Services shall not violate any such law, ordinance, regulation or order;

14.4 Licenses. Contractor is duly licensed to perform the Services and shall maintain its license(s) throughout the term of this Agreement and all POs, and if there is no licensing requirement for the performance of the profession or Services, is duly qualified and professionally competent to perform the Services;

14.5 Professional Standards. Contractor has the skill and knowledge possessed by well-informed members of its profession, industry, or trade and Contractor will apply that skill and knowledge with care and diligence and perform all Services in a timely, professional manner in accordance with the highest standards applicable to Contractor’s profession, industry, or trade;

14.6 Intellectual Property. When used as authorized by this Agreement, no Work Product infringes, nor will Agency’s use, duplication, or transfer of the Work Product infringe, any copyright, patent, trade secret or other proprietary right of any third party; and

14.7 Taxes. To the best of Contractor’s knowledge, after due inquiry, for a period of no fewer than six (6) calendar years preceding the Effective Date, Contractor faithfully has complied with:

All tax laws of the State, including but not limited to ORS 305.620 and ORS chapters 316, 317, and 318;

Any tax provisions imposed by a political subdivision of the 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;

Any tax provisions imposed by a political subdivision of the State that applied or apply to Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor.

14.8 Other Warranties. The warranties specified in this Section 14 are in addition to, and not in lieu of, any other warranties provided. All warranties are cumulative and will be interpreted broadly to give and Agency the greatest warranty protection available.

SECTION 15: BREACH; REMEDIES; TERMINATION

15.1 Breach by Contractor.

Contractor breaches this Agreement if Contractor:

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;

No longer holds a license or certificate that is required for Contractor to perform its obligations under this Agreement and Contractor has not obtained the license or certificate within fourteen (14) calendar days after DAS PS or Agency, as applicable, delivers notice of breach to Contractor or a longer period as DAS PS or Agency may specify in the notice;

Commits any material breach of any covenant, warranty, obligation or certification under this Agreement, fails to perform its obligations under this Agreement or PO (or both) within the time specified or any extension of that time, and Contractor fails to cure, if curable, the breach within fourteen (14) calendar days after DAS PS or Agency delivers notice of breach to Contractor or a longer period as DAS PS or Agency, as applicable, may specify in the notice; or Breaches its obligations under Sections 8.3, 10.2, 10.3, 10.4 to 10.6, 12.1, or its warranties in Section 14.5 or 14.7.

15.2 Remedies.

If Contractor is in breach of this Agreement, Agency shall be entitled to recover for any and all damages suffered as the result of Contractor's breach. In addition, at Agency’s option, Agency shall have the right to pursue any or all other remedies Agency may have available at law or in equity, including, but not limited to any or all of the following:

Agency’s Termination of this Agreement under Section 15.3.3;

or Agency’s termination of any PO to which it is a party;

If Contractor is in breach under Section 15.1.4, pursue and recover damages, including penalties on behalf of other political subdivisions of the State.

To the extent they are not inconsistent, these remedies are cumulative and are in addition to any other remedies Agency may have under a PO, and Agency may pursue any remedy or remedies singly, collectively, successively, or in any order whatsoever. If it is determined for any reason that Contractor was not in breach under Section 15.1 above, the rights and obligations of the parties shall be the same as if this Agreement was terminated pursuant to Section 15.3.2 below.

15.3 Termination.

This Agreement may be terminated as follows:

The parties may terminate this Agreement at any time by mutual written consent.

Agency may, at its sole discretion, terminate this Agreement, in whole or in part, upon 30 days’ notice to Contractor.

Agency may terminate this Agreement immediately upon written notice to Contractor, or at such later date as it may establish in such notice, if Contractor breaches its obligations under Section 12.1 or is in breach of the Agreement as set forth in Section 15.1.

Agency may terminate this Agreement immediately upon written notice to Contractor, or at such later date as it may establish in such notice, if federal or state laws, regulations, or guidelines are modified or interpreted in such a way that the purchase of the Services offered by Contractor under this Agreement are prohibited.

Effect of Termination. Upon receipt of written notice of termination, Contractor shall stop performance under this Agreement as directed by Agency. POs executed prior to termination of this Agreement may continue in effect, subject to the limits on PO extensions in Section 7.1. All property of the State or of Agency (or both) in the possession of Contractor at the time of termination shall be returned to the State or the Agency, as may be applicable, upon termination.

SECTION 16: INTENDED BENEFICIARIES

16.1 Agreement. Agency and Contractor are the only parties to this DAS PS, Contractor, and Agency are the only parties entitled to enforce the terms of this Agreement. Nothing in this Agreement is intended to give, or shall be construed to give or provide any benefit or right, whether directly or indirectly, to any third party

16.2 Purchase Orders. Agency and Contractor are the only parties to a PO and are the only parties entitled to enforce its terms. Nothing in a PO gives, is intended to give, or shall be construed to give or provide any benefit or right, whether directly or indirectly, to third parties unless such third parties are individually identified by name in the PO and expressly identified as an intended third-party beneficiary of the PO.

SECTION 17: FUNDS AVAILABLE AND AUTHORIZED PAYMENTS

Except as provided otherwise in the applicable PO, Contractor shall be compensated for the Services only by the Agency with whom Contractor enters into a PO. Agency will not enter into a PO unless it believes that it has, at the time of execution of the PO, sufficient funds available and authorized for expenditure to finance the costs of the Services within the Agency's biennial appropriation or limitation. Nevertheless, Contractor understands and agrees that Agency’s payment of amounts under any PO is contingent on the Agency receiving funding, appropriations, limitations, allotments or other expenditure authority at levels sufficient to allow the Agency, in the exercise of its reasonable administrative discretion, to make payments under the PO.

SECTION 18: [RESERVED].

SECTION 19: INSURANCE AND INDEMNITY

19.1 Insurance. Contractor shall, at its own cost and expense, maintain insurance as set forth in Exhibit C of this Agreement.

19.2 GENERAL indemnity. CONTRACTOR SHALL DEFEND, SAVE, HOLD HARMLESS, AND INDEMNIFY STATE, DAS, AUTHORIZED PURCHASERS, and their AGENCIES, OFFICERS, directors, and EMPLOYEES, FROM AND AGAINST ALL claims, suits, actions, losses, damages, liabilities, statutory penalties, costs and expenses of any nature whatsoever, including personal injury, death, damage to real property and damage to tangible or intangible personal property, resulting from, arising out of, or relating to the intentional, reckless or negligent acts or omissions of Contractor or its officers, employees, subcontractors, or agents under this Agreement OR UNDER any SERVICE ORDER cONTRACT OR PURCHASE ORDER ISSUED HEREUNDER, including: (i) any claim that CONTRACTOR, a subcontractor, or CONTRACTOR’s staff or a subcontractor’s staff are employees of the State, DAS, or ANOTHER AUTHORIZED pURCHASER for any reason; and (ii) any claim against the State, das, OR ANOTHER AUTHORIZED PURCHASER, which, if true, would constitute a breach by CONTRACTOR of any of the representations, warranties, or covenants set forth in this Agreement OR IN ANY PURCHASE ORDER (“CLAIM”).

19.3 INDEMNITY FOR INFRINGEMENT CLAIMS. WITHOUT LIMITING THE GENERALITY OF SECTION 19.2, CONTRACTOR SHALL DEFEND, SAVE, HOLD HARMLESS AND INDEMNIFY STATE, DAS, authorized purchasers, and their AGENCIES, OFFICERS, directors, and EMPLOYEES, FROM AND AGAINST ALL THIRD PARTY CLAIMS, SUITS, ACTIONS, LOSSES, DAMAGES, LIABILITIES, STATUTORY PENALTIES, COSTS, AND EXPENSES ARISING OUT OF OR RELATING TO ANY CLAIMS THAT THE WORK, THE WORK PRODUCT OR ANY OTHER TANGIBLE OR INTANGIBLE ITEM DELIVERED UNDER THIS Agreement OR ANY SERVICE ORDER cONTRACT OR PURCHASE ORDER BY CONTRACTOR THAT MAY BE THE SUBJECT OF PROTECTION UNDER ANY STATE OR FEDERAL INTELLECTUAL PROPERTY LAW OR DOCTRINE, OR PURCHASING ENTITY’S REASONABLE USE THEREOF, INFRINGES ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK, TRADE DRESS, MASK WORK, UTILITY DESIGN, OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY (“INFRINGEMENT CLAIM”); PROVIDED, THAT STATE SHALL PROVIDE CONTRACTOR WITH PROMPT WRITTEN NOTICE OF ANY INFRINGEMENT CLAIM.

19.4 STATE SHALL REASONABLY COOPERATE IN GOOD FAITH, AT CONTRACTOR’S REASONABLE EXPENSE, IN THE DEFENSE OF CLAIMS AND INFRINGEMENT CLAIMS, AND CONTRACTOR SHALL SELECT COUNSEL REASONABLY ACCEPTABLE TO THE OREGON ATTORNEY GENERAL TO DEFEND SUCH CLAIMS AND INFRINGEMENT CLAIMS AND SHALL BEAR ALL COSTS OF SUCH COUNSEL. COUNSEL MUST ACCEPT APPOINTMENT AS A SPECIAL ASSISTANT ATTORNEY GENERAL UNDER ORS CHAPTER 180 BEFORE COUNSEL MAY ACT IN THE NAME OF, OR REPRESENT THE INTERESTS OF, STATE, ITS AGENCIES, OFFICERS, EMPLOYEES, OR AGENTS. STATE, HOWEVER, 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, ATTORNEY FEES, 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. SUBJECT TO THE LIMITATIONS NOTED ABOVE, CONTRACTOR MAY DEFEND SUCH CLAIMS AND INFRINGEMENT CLAIMS WITH COUNSEL OF ITS OWN CHOOSING PROVIDED THAT NO SETTLEMENT OR COMPROMISE OF ANY SUCH CLAIMS OR INFRINGEMENT CLAIMS SHALL OCCUR WITHOUT THE CONSENT OF STATE, WHICH CONSENT SHALL NOT UNREASONABLY BE WITHHELD, CONDITIONED, OR DELAYED.

19.5 CONTROL OF DEFENSE AND SETTLEMENT FOR CLAIMS AGAINST ORCPP MEMBERS. IN THE EVENT A CLAIM ARISES UNDER ANY SERVICE ORDER CONTRACT OR PURCHASE ORDER ENTERED INTO BY CONTRACTOR AND AN ORCPP MEMBER THAT IS NOT A STATE AGENCY, THIS SECTION SHALL CONTROL OVER SECTION 19.4 ABOVE. IN ANY SUCH CASES, CONTRACTOR SHALL HAVE CONTROL OF THE DEFENSE AND SETTLEMENT OF ANY CLAIM THAT IS SUBJECT TO INDEMNIFICATION UNDER THIS SECTION 19; HOWEVER, NEITHER CONTRACTOR NOR ANY ATTORNEY ENGAGED BY CONTRACTOR SHALL DEFEND THE CLAIM IN THE NAME OF THE ORCPP MEMBER, NOR PURPORT TO ACT AS LEGAL REPRESENTATIVE OF THE ORCPP MEMBER, WITHOUT FIRST RECEIVING PRIOR WRITTEN CONSENT FROM SUCH MEMBER, NOR SHALL CONTRACTOR SETTLE ANY CLAIM ON BEHALF OF SUCH ORCPP MEMBER WITHOUT THE PRIOR WRITTEN CONSENT OF THE REPRESENTATIVE OF THE ORCPP MEMBER AUTHORIZED TO PROVIDE SUCH CONSENT. THE ORCPP MEMBER MAY, AT ITS ELECTION, ASSUME ITS OWN DEFENSE AND SETTLEMENT IF THE MEMBER DETERMINES THAT: (I) CONTRACTOR IS PROHIBITED FROM DEFENDING THE ORCPP MEMBER, (II) CONTRACTOR IS NOT ADEQUATELY DEFENDING THE ORCPP MEMBER’S INTERESTS, OR (III) AN IMPORTANT PRINCIPLE IS AT ISSUE AND THE ORCPP MEMBER DESIRES TO ASSUME ITS OWN DEFENSE. IN THE EVENT THE ORCPP MEMBER ASSUMES ITS OWN DEFENSE UNDER (I) OR (II), IT SHALL BE AT CONTRACTOR’S EXPENSE.

SECTION 20: RECORDS MAINTENANCE; ACCESS

Contractor shall maintain all financial records relating to this Agreement and all 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 PO in such a manner as to clearly document Contractor's performance. All financial records and all other records are “Records.” Contractor shall permit State, DAS, Agency, 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, following both (i) the final payment under the last PO entered into and (b) 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 PO, whichever date is later.

SECTION 21: FOREIGN CONTRACTOR

If Contractor is not domiciled in or registered to do business in the State of Oregon, Contractor shall promptly provide to the Oregon Department of Revenue and the Secretary of State Corporation Division all information required by those entities relative to this Agreement and the applicable PO. Contractor shall demonstrate its legal capacity to perform the Services under this Contract and any PO in the State of Oregon before entering into this Agreement.

SECTION 22: DISCLOSURE OF SOCIAL SECURITY NUMBER

Contractor shall provide Contractor’s Social Security number to DAS PS upon execution of this Agreement and to the Agency upon execution of a PO unless Contractor provides a federal tax identification number. This number is requested pursuant to ORS 305.385, OAR 125-246-0330(2), and OAR 150-305-0010. Social Security numbers provided pursuant to this authority will be used for the administration of state, federal, and local tax laws.

SECTION 23: FORCE MAJEURE

Agency, and Contractor will not be liable for any delays or failures in performance due to riot, acts of political sabotage, war, fire, earthquakes, tsunamis, or other similar natural disasters beyond the reasonable control of the Agency, or Contractor. Each party shall, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon the cessation of the cause, diligently pursue performance of its obligations under this Agreement and any PO.

However, Agency may terminate this Agreement upon written notice to Contractor after reasonably determining that such delay or default will likely prevent successful performance of this Agreement. An Authorized Purchaser may terminate a PO formed under this Agreement after reasonably determining that such delay or default will likely prevent successful performance of the Contract formed by the SOC or PO.

SECTION 24: SURVIVAL

All rights and obligations shall cease upon termination or expiration of this Agreement except those rights and obligations which expressly or by their nature survive termination of this Agreement, including, without limitation, Sections 4 to 8, 12 to 15, 19, 20, and 24 to 31. All rights and obligations under a PO shall cease upon termination or expiration thereof except those rights and obligations which expressly or by their nature survive termination of such PO including, without limitation, those sections relating to warranties and liabilities, independent contractor status, taxes and withholdings, not-to-exceed compensation, Contractor’s duties of confidentiality, ownership and license of intellectual property and Deliverables, remedies, order of precedence, third party beneficiaries, waiver, integration, and certifications.

SECTION 25: NOTICE

Except as otherwise expressly provided in the applicable PO, any communications between Contractor and Agency or notices to be given under this Agreement shall be given in writing by email, personal delivery, US mail, or parcel carrier to Contractor or Agency at the address, number or email address set forth in this Section 25, the applicable PO, or both, or to such other addresses or numbers as the parties may indicate in writing to the others pursuant to this section. Any communication or notice so addressed shall be deemed received as follows: (i) via US Mail - five (5) calendar days after the date of the postmark, (ii) via parcel carrier – 48 hours after placing the Notice with such carrier, (iii) via hand delivery – when actually delivered to the physical address, and (iv) via email – upon receipt of auto-delivery notice from the recipients email program when followed up by a confirmation telephone call by the party providing Notice.

Notice to DAS PS:

Name:

Title:

Address:

Phone #:

Email:

Notice to Agency:

Name:

Title:

Address:

Phone #:

Email:

Notice to Contractor:

Name:

Title:

Address:

Phone #:

Email:

SECTION 26: SEVERABILITY

The parties agree that if any term or provision of this Agreement or any PO 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, respectively, this Agreement or the PO did not contain the particular term or provision held to be invalid. In such event, the parties intend that the conflict not invalidate the other provisions of this Agreement or the PO, and the parties shall negotiate in good faith to agree on replacement language for the offending term or provision that will be consistent with the purposes of this Agreement or the PO.

SECTION 27: COUNTERPARTS

This Agreement 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 this Agreement so executed shall constitute an original.

SECTION 28: GOVERNING LAW, VENUE, CONSENT TO JURISDICTION

This Agreement, and each PO established under this Agreement, shall be governed by, and shall be construed and enforced in accordance with, the laws of the State of Oregon without regard to principles of conflicts of law.

28.1 State Venue; Consent to Jurisdiction. Any claim, action, suit or proceeding (collectively, “Claim”) between the Agency and Contractor that arises from or relates to this Agreement or any Purchase Order entered into under this Agreement shall be brought and conducted solely and exclusively within the Circuit Court of the State of Oregon for Marion County. It is provided, however, that if a Claim 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 Claims or jurisdiction based thereon.

SECTION 29: MERGER CLAUSE; WAIVER

This Agreement constitutes the entire agreement between the parties on the subject matter hereof. There are no understandings, agreements, or representations, oral or written, not specified herein regarding the subject matter of this Agreement. No waiver, consent, modification or change of terms of this Agreement or any PO shall bind the parties unless agreed to in an amendment made in accordance with Section 7.4 above. Such waiver, consent, modification or change, if made, shall be effective only in the specific instance and for the specific purpose given. The failure of DAS PS or the Agency to enforce any provision of this Agreement or any PO shall not constitute a waiver by DAS PS or the Agency of that or any other provision.

SECTION 30: MEDIATION

If the parties to a PO become involved in a dispute regarding any of the terms, conditions, performance, or any obligations under the PO, the parties shall submit to mediation prior to the commencement of litigation to enforce the PO. The mediator shall be an individual mutually acceptable to the parties, but in the absence of agreement, each party shall select a temporary mediator, and the temporary mediators shall jointly select the permanent mediator. Each party agrees to pay its own costs for the time and effort involved in mediation and split equally the cost of the temporary mediators, if any, and the mediator. Both parties agree to exercise best efforts and act in good faith to resolve all disputes in mediation. The parties shall mutually agree on the schedule and time allowed for mediation. The parties shall comply with statutes and administrative rules governing the confidentiality of mediation, if any.

SECTION 31: TAX CERTIFICATION

The individual signing on behalf of Contractor hereby certifies and swears under penalty of perjury to the best of the individual’s knowledge that:

31.1 Not Subject to Backup Withholding. 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;

31.2 Authorized to Act. The individual signing on behalf of Contractor is authorized to act on Contractor’s behalf, has authority and knowledge regarding Contractor's payment of taxes, and to the best of the signator’s knowledge, Contractor is not in violation of any Oregon tax laws, including, without limitation, those tax laws listed in ORS 305.380(4), namely ORS Chapters 118, 314, 316, 317, 318, 320, 321 and 323 and Sections 10 to 20, Chapter 533, Oregon Laws 1981, as amended by Chapter 16, Oregon Laws 1982 (first special session); and any local taxes administered by the Oregon Department of Revenue under ORS 305.620;

31.3 Independent Contractor. Contractor is an independent contractor as defined in ORS 670.600; and

31.4 Tax ID Accurate. The Contractor tax identification numbers provided to Agency are true and accurate.

IN WITNESS WHEREOF THE PARTIES HAVE EXECUTED THIS AGREEMENT.

CONTRACTOR

AGENCY

By:

By:

Signed

Signed

Title:

Title:

Date:

Date:

DAS PROCUREMENT SERVICES

DEPARTMENT OF JUSTICE

By:

By:

Signed

Signed

Title:

Title:

Date:

Date:

Exhibit…