Crim Code, Spec Pubs & EROC Contract with solicitation memo as posted to OregonBuys.pdf

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PUBLIC CONTRACT SOLICITATION

PRINTING, BINDING, PACKAGING AND DELIVERY

ESSENTIAL RULES OF OREGON COURTS, THE OREGON CRIMINAL CODE & SPECIALTY PUBLICATIONS

OFFICE OF THE LEGISLATIVE COUNSEL, STATE OF OREGON

INTRODUCTION

Each biennium the Office of the Legislative Counsel publishes several volumes of legal text, some of which are based on statutory law and some on other sources of law. The Office has chosen for this biennium to bundle the following publications together into a single solicitation for printing, binding, packaging and delivery services substantially in accordance with the attached public contract:

• The 2024 edition of the Essential Rules for Oregon Courts

• The 2024 edition of the Criminal Code of Oregon

• The 2024 edition of Family Laws of Oregon

• The 2024 edition of Labor, Employment and Workers’ Compensation Laws of Oregon

• The 2024 edition of Landlord and Tenant Laws of Oregon

• The 2025 edition of the Essential Rules for Oregon Courts

SOLICITATION

This is a single solicitation for services to provide all publications listed in the previous section. The anticipated contract value of this solicitation is less than $150,000. Please note that this is NOT a competitive procurement within the meaning of ORS 279B.060 and Legislative Counsel will not be conducting the solicitation in accordance with ORS 279B.060. Rather than issuing a request for proposals for this solicitation, Legislative Counsel will follow the procedures set forth in ORS 279B.070 for “intermediate procurements.” This memorandum is merely notice of the solicitation and an invitation for interested vendors to contact Legislative Counsel to be considered for an award of the public contract. A contractor that accepts the contract award must adhere to all of the terms and conditions set forth in the attached model contract, except that a prospective contractor may propose alternative terms and conditions for, and Legislative Counsel at its sole discretion may choose to negotiate all or portions of, the following provisions:

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• Method of payment (Section 2.A. of the Contract)

• Indemnification (Section 3.I. of the Contract)

• Termination (Section 3.N. of the Contract)

• Invoicing (Section 2.E. of the Contract and Part IV (Billing) of the Statement of Work (Attachment 1 to the Contract))

• Prices in response to potential supply cost fluctuations (Part IV (Paper Stock Escalation) of the Statement of Work (Attachment 1 to the Contract))

• Insurance (Section 4 of the Contract)

CONTACT

To submit questions about this solicitation or to submit a proposal or otherwise indicate your interest in being considered for an award of this public contract, please contact:

Shelley Osborne 900 Court Street NE S-101

Salem Oregon 97301

(503) 986-1243 lc.contracts@oregonlegislature.gov

If you choose to submit a proposal, please include in the proposal at least the following items:

• A summary of previous work you have performed that shows evidence of your capability to provide the services

• A description of a planned approach you would take to providing the services

• A bid amount for each publication, broken down as specified in the attached model contract

• A list of references that are familiar with your past work

Legislative Counsel is not specifying any particular format for proposals and will consider proposals that include at least the listed elements, but proposals that are longer than 25 pages are discouraged.

In any message you leave to indicate interest, please include contact information that would enable Legislative Counsel to return your call or message. If you do not submit a proposal but would like to be considered for the public contract, please be prepared to respond to inquiries from Legislative Counsel concerning your capabilities, work history, references and anticipated approach to providing the services set forth in the public contract. Legislative Counsel may also ask for samples of previous work.

DEADLINE

Proposals and indications of interest are due to Legislative Counsel at the address indicated in the previous section NOT LATER THAN 5:00 PM DECEMBER 8, 2023. Legislative Counsel will not consider proposals or indications of interest submitted after this deadline.

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Contract Including Proposed Statement of Work

(Attachment 1)

STATE OF OREGON

CONTRACT FOR THE

PURCHASE OF SERVICES

(“Contract”)

This Contract is between the State of Oregon (“State”) acting by and through the Office of the Legislative Counsel (“Agency”) under the authority of ORS 173.130, and (“Contractor”). This Contract is effective on the date that all parties have signed this Contract and have obtained all required State approvals. This Contract expires on January 1, 2026.

In this Contract, “Party” or “the Parties” means one or more of the entities described in the previous paragraph and does not include any third party.

RECITALS

A. Agency desires to engage Contractor to enable Agency to achieve Agency’s business and mission objectives by means of Contractor’s providing the professional services (“Services” as defined below) necessary to print, bind, package and deliver:

i. The 2024 edition of the Essential Rules for Oregon Courts;

ii. The 2024 edition of the Criminal Code of Oregon;

iii. The 2024 edition of Family Laws of Oregon;

iv. The 2024 edition of Labor, Employment and Workers’ Compensation Laws of Oregon;

v. The 2024 edition of Landlord and Tenant Laws of Oregon; and

vi. The 2025 edition of the Essential Rules for Oregon Courts.

B. Contractor is the successful Proposer in connection with the procurement for the Services.

C. Contractor desires to perform the Services for Agency.

AGREEMENT

Agency and Contractor agree to give effect to the Recitals above by mutually establishing the terms and conditions below and that the promises so exchanged constitute adequate consideration for this Agreement.

DEFINITIONS

“Amendment” means alteration of a term or condition of this Contract, the contents of any Appendices or Attachments, or any other material alteration of the terms and conditions of this Contract other than a Change Order.

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“Authorized Representative” means a person representing a Party to this Contract who is authorized to make commitments and decisions on behalf of the Party regarding the performance of this Contract.

“Change Order” means an alteration of a specification, delivery time, Deliverable or other item set forth in the Statement of Work. “Change Order” does not include an alteration to a term or condition of this Contract.

“Confidential Information” is defined in section 3.AA.

“Contract” means the documents described in section 3.Z. and the agreement or agreements embodied in the documents.

“Contractor Intellectual Property” means any and all intellectual property that Contractor owns and developed independently from the Services or the Statement of Work.

“Deliverable” means an item that Contractor is required to deliver to Agency subject to Agency’s acceptance under this Contract and that is otherwise identified as a Deliverable in the Statement of Work.

“Maximum Not-To-Exceed Compensation” means the amount set forth in section 2.

“Proposal” means a competitive offer for Services that is binding on a Proposer and submitted in response to Agency’s solicitation.

“Services” means all services Contractor performs under this Contract by means of which Contractor produces and delivers a Deliverable in accordance with the specifications set forth in the Statement of Work.

“Statement of Work” means the complete description of all Services, goods, Work Product and other items that this Contract, together with any Appendices, Attachments, Change Orders, or Amendments to this Contract, requires Contractor to provide to Agency. The initial form of the Statement of Work as of the Effective Date includes, but is not limited to, the items as are identified in and attached to this Contract as Attachment 1.

Other Capitalized terms not defined in this section have the meaning ascribed to them elsewhere in this Contract or in OAR 137-046-0110. The definitions in OAR 137-046-0110 are incorporated into this Contract by this reference.

ORGANIZATION

For the convenience of the Parties, this Contract consists of several parts denominated as sections and numbered with Arabic numerals. Within each section may be one or more paragraphs sequentially numbered with alphabetic characters (for example, paragraph A), and within each paragraph may be subparagraphs sequentially numbered with lowercase Roman numerals (for example, subparagraph i). References within this Contract to specific sections, paragraphs or subparagraphs refer only to the provisions in those specific sections, paragraphs or subparagraphs, except that references to sections include the provisions of all paragraphs and subparagraphs within the sections, and references to paragraphs include the provisions of all subparagraphs within the paragraph. With the exception of such references or as otherwise stated within this Contract, the division and organization of this Contract does not control or affect the meaning or construction of this Contract.

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1. STATEMENT OF SERVICES.

A. AGREEMENT, SERVICES AND DELIVERABLES.

Contractor agrees to perform, and Agency agrees to pay for, the Services and Deliverables identified and described in detail in Attachment 1 to this Contract (the “Statement of Work”). The Statement of Work is hereby incorporated into and made a part of this Contract by this reference.

B. ACCEPTANCE CRITERIA AND PROCESS.

Agency shall inspect and either accept or reject each Service performed and each Deliverable delivered within ten (10) business days from the date Contractor performs the Service or delivers the Deliverable to Agency. If Agency does not provide written notice of acceptance or rejection of the Service or Deliverable to Contractor within ten (10) business days following the date of performance or delivery, Agency is deemed to have accepted the Service or Deliverable. If Agency rejects the Service or Deliverable, Agency’s written notice of rejection shall, at a minimum, itemize the apparent defects and include:

i. A description of nonconformance between the Service or Deliverable and the Contract requirements and specifications set forth in the Statement of Work for that Service or Deliverable;

ii. A description of any other nonconformance of the Service or Deliverable (including late delivery); and

iii. A statement indicating whether Contractor may cure the nonconformance and, if so, the method in which and time period within which Contractor shall cure.

Contractor’s failure to perform a Service or deliver a Deliverable in accordance with the requirements of this Contract and the Statement of Work is a material breach of this Contract.

2. COMPENSATION.

The maximum not-to-exceed compensation for payment to Contractor under this Contract is

A. METHOD OF PAYMENT FOR SERVICES.

Agency shall pay Contractor the amount specified for each of the following Deliverables that Agency has accepted:

The 2024 edition of the Essential Rules for Oregon Courts, as described and summarized in Part I of the Statement of Work: $___.

The 2024 edition of the Criminal Code of Oregon, as described and summarized in Part I of the Statement of Work: $___.

The 2024 edition of Family Laws of Oregon, as described and summarized in Part I of the Statement of Work: $___.

The 2024 edition of Labor, Employment and Workers’ Compensation Laws of Oregon, as described and summarized in Part I of the Statement of Work: $___.

The 2024 edition of Landlord and Tenant Laws of Oregon, as described and summarized in Part I of the Statement of Work: $___.

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The 2025 edition of the Essential Rules for Oregon Courts, as described and summarized in Part I of the Statement of Work: $___.

B. BASIS OF PAYMENT FOR SERVICES.

Full completion. Agency shall pay Contractor the amount due for each Deliverable under this Contract in one payment upon Agency’s approval of Contractor’s invoice to Agency, but only after Agency has determined that Contractor has completed, and Agency has accepted, all Services related to each Deliverable and that Contractor has delivered and Agency has accepted each Deliverable required under this Contract.

C. EXPENSE REIMBURSEMENT.

Agency will not reimburse Contractor for any expenses under this Contract.

D. GENERAL PAYMENT PROVISIONS.

i. Agency shall pay Contractor for Services performed and goods delivered at the rates and prices specified in the Statement of Work, Attachment 1 to this Contract. Contractor shall look solely to Agency for payment of all amounts Agency owes to Contractor. Contractor may not be compensated by any State agency or department other than Agency for Services Contractor performs and goods Contractor delivers.

ii. If Contractor is a nonresident alien as defined in 26 U.S.C. § 7701(b)(1)(B), Contractor shall, at the time Contractor executes this Contract, deliver to Agency a completed and signed W-8 form, 8233 form, or W-9 form, as applicable, from the Internal Revenue Service (“IRS”), as evidence that 26 U.S.C. § 1441 does not require Agency to withhold part of Contractor's payment. The forms are currently available at http://www.irs.gov. Agency may withhold payments to Contractor pending Agency's receipt from Contractor of the applicable, completed and signed form. If Agency does not receive the applicable, completed and signed form from Contractor, or if the IRS provides notice to Agency that Contractor's information on the form provided is incorrect, Agency will withhold as federal income tax 30% of all amounts Agency owes to Contractor under this Contract.

iii. Funds Available and Authorized; Payments. Contractor understands and agrees that Agency’s payment of amounts under this Contract is contingent on Agency receiving funding, appropriations, limitations, allotments or other expenditure authority at levels sufficient to allow Agency, in the exercise of Agency’s reasonable administrative discretion, to make payments under this Contract.

E. INVOICES.

i. Contractor shall send invoices to Agency for Services that Contractor completed and goods that Contractor delivered. Contractor shall send the invoices in accordance with the schedule set forth in the Statement of Work, Attachment 1 to this Contract. Contractor shall include in each invoice:

a. The Solicitation number, if any, and the Contract number, if any;

b. A detailed description of Services Contractor performed, including the name or names of the individuals who performed Services and prepared the Deliverables to which the invoice applies, the dates Services were performed, all Deliverables Contractor delivered during the period of the invoices, the rate or rates for Services performed, and the total cost of Services;

c. The quantity of goods ordered, the quantity of goods delivered, the date the goods were delivered, the price per unit, if applicable; and http://www.irs.gov/

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d. The total amount due and the address to which Agency must direct payment.

ii. Contractor shall send all invoices to Agency’s Authorized Representative at the email address specified in section 7 or to any other address as Agency may indicate in writing to Contractor. Contractor’s claims to Agency for overdue payments on invoices are subject to

ORS 293.462.

3. GENERAL TERMS AND CONDITIONS.

A. INTELLECTUAL PROPERTY AND OPEN SOURCE; TITLE TO GOODS.

i. Definitions. As used in this Contract, the following terms have the meanings set forth below:

a. “Open Source Elements” means Work Product that is subject to an open source initiative certified license, including Work Product based upon any open source initiative certified licensed work.

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

c. “Work Product” means all Services and goods Contractor delivers or is required to deliver to Agency under this Contract.

ii. New Works. All intellectual property rights in the Work Product that Contractor creates under this Contract are the exclusive property of Agency. All Work Product that Contractor produces, authors or creates under this Contract is a “work made for hire” to the extent permitted by the United States Copyright Act. To the extent that Agency does not own the intellectual property rights in the Work Product, Contractor hereby irrevocably assigns to Agency any and all of Contractor’s rights, title, and interest in the Work Product. Upon Agency’s reasonable request, Contractor shall execute further documents and instruments as may be reasonably necessary to fully vest such rights in Agency. Contractor forever waives any and all rights relating to the Work Product Contractor creates under this Contract, 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.

iii. Contractor Intellectual Property. If intellectual property rights in the Work Product are Contractor Intellectual Property, Contractor hereby grants to Agency an irrevocable, nonexclusive, perpetual, royalty-free license to use, make, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Contractor Intellectual Property, and to authorize others to do the same on Agency’s behalf.

iv. Third Party Intellectual Property. To the extent Contractor has the necessary authority, Contractor shall sublicense or pass through to Agency all Third Party Intellectual Property. Contractor represents and warrants that Contractor has provided written disclosure to Agency of all Third Party Intellectual Property that must be independently licensed by Agency to fully enjoy the benefit of the Work Product. If Contractor failed to provide such written disclosure, Contractor shall secure on the Agency’s behalf and in Agency’s name an irrevocable, nonexclusive, perpetual, royalty-free license to use, make, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Third Party Intellectual Property, and to authorize others to do the same on Agency’s behalf.

v. Open Source Approval and Notice. Agency must approve in advance and in writing Open Source Elements that Contractor uses in or uses to produce the Work Product. If Agency approves the use of Open Source Elements, Contractor shall:

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a. Notify Agency in writing that the Work Product contains Open Source Elements;

b. Identify the specific portion of the Work Product that contains Open Source Elements; and

c. Provide a copy of the applicable license for each Open Source Element to Agency.

vi. Title to Goods. Title to goods passes to Agency in accordance with ORS 72.4010.

B. OTHER REPRESENTATIONS AND WARRANTIES.

i. All express and implied warranties that apply to goods under ORS chapter 72 apply to the goods delivered under this Contract. Contractor represents and further warrants that:

a. Contractor has the authority to enter into and perform in accordance with this Contract and that this Contract, when executed and delivered, is a valid and binding obligation of Contractor that is enforceable in accordance with its terms;

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

c. Contractor is and shall be, at all times during the term of this Contract, qualified, professionally competent, and duly licensed to perform Services; and

d. When used as authorized by this Contract, 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.

ii. The warranties specified in this section are in addition to, and not in lieu of, any other warranties provided. All warranties are cumulative and shall be interpreted broadly to give Agency the greatest warranty protection available.

C. COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS.

i. Contractor shall comply with all federal, state and local laws, regulations, and ordinances applicable to this Contract or to Contractor’s obligations under this Contract, as those laws, regulations and ordinances may be adopted or amended from time to time.

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

D. AMENDMENTS.

All Amendments to this Contract are subject to OAR 137-047-0800.

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E. TIME IS OF THE ESSENCE.

Contractor understands and agrees that time is of the essence in performing this Contract.

F. FORCE MAJEURE.

Neither Agency nor Contractor is responsible for a failure to perform or for a delay in the performance of an obligation under this Contract that is caused by fire, riot, acts of God, terrorism, war, or any other cause that is beyond the breaching Party’s reasonable control.

Contractor shall, however, make all reasonable efforts to remove or eliminate the cause of Contractor’s delay or breach and shall, upon the cessation of the cause, continue performing under this Contract. Agency may terminate this Contract upon written notice to Contractor after reasonably determining that the delay or breach will likely prevent successful performance of this Contract.

G. INSURANCE.

Contractor shall obtain the insurance required under section 4 of this Contract. Contractor shall maintain the required insurance in force and effect throughout the duration of this Contract and all warranty periods.

H. INDEPENDENT CONTRACTOR STATUS; RESPONSIBILITY FOR TAXES AND WITHHOLDING.

i. Contractor shall perform all Services as an independent Contractor. Although Agency may

(a) determine and modify the delivery schedule for Services that Contractor performs and (b) evaluate the quality of Contractor’s completed performance, Agency cannot and will not control the means or manner of Contractor's performance. Contractor is responsible for determining the appropriate means and manner of performing any Services required under this Contract. Contractor certifies, represents and warrants that Contractor is an independent contractor of Agency under all applicable state and federal law. Contractor is not an "officer," "employee" or "agent" of Agency as those terms are used in ORS 30.265.

ii. If Contractor is currently performing work for State or the federal government, Contractor by signature to this Contract represents and warrants that Contractor’s performance of this Contract creates no potential or actual conflict of interest as defined by ORS chapter 244 and that no rules or regulations of Contractor's employing agency (state or federal) would prohibit Contractor from performing this Contract.

iii. Contractor is responsible for all federal and state taxes applicable to compensation or payments paid to Contractor under this Contract, and Agency is not responsible for and will not pay any applicable taxes for or on Contractor’s behalf. Unless required by prevailing federal law or regulations, Agency will not withhold from compensation or payments to Contractor any amount to cover Contractor's federal or state tax obligations unless Contractor is subject to backup withholding. Contractor is not eligible for any Social Security, unemployment insurance or workers' compensation benefits from compensation paid or payments made to Contractor under this Contract.

I. INDEMNIFICATION.

i. GENERAL INDEMNITY. CONTRACTOR SHALL DEFEND, SAVE, HOLD HARMLESS, AND INDEMNIFY STATE AND STATE’S AGENCIES, OFFICERS, DIRECTORS, AGENTS

AND EMPLOYEES FROM AND AGAINST ALL CLAIMS, SUITS, ACTIONS, LOSSES,

DAMAGES, LIABILITIES, COSTS AND EXPENSES OF ANY NATURE WHATSOEVER

(“CLAIMS”) RESULTING FROM, ARISING OUT OF, OR RELATING TO THE ACTS OR

OMISSIONS OF CONTRACTOR OR CONTRACTOR’S OFFICERS, EMPLOYEES,

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SUBCONTRACTORS, OR AGENTS UNDER THIS CONTRACT.

ii. INDEMNITY FOR INFRINGEMENT CLAIMS. WITHOUT LIMITING THE GENERALITY OF SECTION 3.I.i. OF THIS CONTRACT, CONTRACTOR SHALL DEFEND, SAVE, HOLD

HARMLESS AND INDEMNIFY STATE AND STATE’S AGENCIES, OFFICERS,

DIRECTORS, AGENTS, AND EMPLOYEES FROM AND AGAINST ALL CLAIMS, SUITS,

ACTIONS, LOSSES, DAMAGES, LIABILITIES, COSTS, AND EXPENSES, INCLUDING

ATTORNEY FEES, ARISING OUT OF OR RELATING TO ANY CLAIMS THAT THE

WORK, THE WORK PRODUCT OR ANY OTHER TANGIBLE OR INTANGIBLE ITEM

DELIVERED UNDER THIS CONTRACT BY CONTRACTOR THAT MAY BE THE

SUBJECT OF PROTECTION UNDER ANY STATE OR FEDERAL INTELLECTUAL

PROPERTY LAW OR DOCTRINE, OR AGENCY’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 AGENCY SHALL

PROVIDE CONTRACTOR WITH PROMPT WRITTEN NOTICE OF ANY INFRINGEMENT

CLAIM.

iii. AGENCY 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 THE COUNSEL THAT CONTRACTOR

SELECTS. THE SELECTED 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 OR STATE’S

AGENCIES, OFFICERS, EMPLOYEES OR AGENTS. STATE MAY ELECT TO ASSUME

STATE’S OWN DEFENSE WITH AN ATTORNEY OF STATE’S OWN CHOICE AND AT

STATE’S OWN EXPENSE AT ANY TIME THAT STATE DETERMINES THAT IMPORTANT

GOVERNMENTAL INTERESTS ARE AT STAKE. SUBJECT TO THE LIMITATIONS NOTED

ABOVE, CONTRACTOR MAY DEFEND SUCH CLAIMS AND INFRINGEMENT CLAIMS

WITH COUNSEL OF CONTRACTOR’S OWN CHOOSING PROVIDED THAT NO

SETTLEMENT OR COMPROMISE OF ANY SUCH CLAIMS AND INFRINGEMENT CLAIMS

SHALL OCCUR WITHOUT THE CONSENT OF STATE, WHICH CONSENT SHALL NOT BE

UNREASONABLY WITHHELD, CONDITIONED OR DELAYED.

J. NONCOMPETITION.

i. Contractor understands and agrees that Contractor is performing the Services under this Contract as a work for hire and that Agency is entitled to ownership and delivery of all Work Product produced under this Contract, except to the extent that Agency in writing permits Contractor to retain a specifically identified portion of the goods produced as Work Product for Contractor’s use as samples of Contractor’s work or for similar or related purposes. In Agency’s written grant of permission to retain any portion of Work Product, Contractor shall list a complete inventory of the goods or portion of the Work Product that Contractor retains and shall specify the purposes for which Contractor may retain that portion of the Work Product.

ii. Contractor and Contractor’s subsidiaries and affiliates may not in any event or at any time before, during or after the term of this Contract print, bind, package or otherwise produce or create in any manner any goods that are Work Product under this Contract or that are derivative of Work Product under this Contract except as specifically set forth under the terms of this Contract. Contractor and Contractor’s subsidiaries and affiliates may not sell, lease, exchange, transfer or otherwise dispose of any goods that are Work Product, or any electronic files or other materials that are Agency’s intellectual or other property that

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Contractor used in producing Work Product, to any third party in any state or jurisdiction of the United States, or the territories or possessions of the United States, except as specifically set forth under the terms of this Contract or under the terms of any permissions, directions or assignments that Agency may make to Contractor in writing. Contractor understands and agrees that the rights and duties specified in this paragraph J are material to the performance of this Contract and that in the event of Contractor’s breach or a breach by Contractor’s subsidiary or affiliate Agency may pursue any or all of the remedies available under this Contract and at law or in equity, including, but not limited to, initiating an action or proceeding for damages, specific performance, or declaratory or injunctive relief.

iii. Contractor acknowledges and agrees that the customer mailing list and other customer contact information (“Customer Information”) that Agency provides to Contractor during the term of this Contract are Confidential Information as described in section 3.AA. of this Contract and that the provisions of section 3.AA. of this Contract apply to Contractor’s use of Customer Information. Contractor hereby agrees to adhere to the provisions of section 3.AA.

of this Contract. In addition, Contractor acknowledges and agrees that Contractor may not use the Customer Information on Contractor’s own behalf or on behalf of any third party during or at any time after the expiration of the term of this Contract for any purpose whatsoever other than to deliver the Work Product to Agency’s customers under the terms and conditions set forth in this Contract.

K. ASSIGNMENT OF ANTITRUST RIGHTS.

i. CONTRACTOR IRREVOCABLY ASSIGNS TO AGENCY ANY CLAIM FOR RELIEF OR

CAUSE OF ACTION WHICH CONTRACTOR NOW HAS OR WHICH MAY ACCRUE TO

CONTRACTOR IN THE FUTURE BY REASON OF ANY VIOLATION OF 15 U.S.C. § 1-15 OR

ORS 646.725 OR 646.730, IN CONNECTION WITH ANY GOODS OR SERVICES

PROVIDED TO CONTRACTOR FOR THE PURPOSE OF CARRYING OUT

CONTRACTOR’S OBLIGATIONS UNDER THIS CONTRACT, INCLUDING, AT AGENCY’S

OPTION, THE RIGHT TO CONTROL ANY SUCH LITIGATION ON SUCH CLAIM FOR

RELIEF OR CAUSE OF ACTION.

ii. CONTRACTOR SHALL REQUIRE ANY SUBCONTRACTORS CONTRACTOR HIRES TO

PERFORM ANY OF CONTRACTOR’S DUTIES UNDER THIS CONTRACT TO

IRREVOCABLY ASSIGN TO AGENCY, AS A THIRD PARTY BENEFICIARY, ANY RIGHT,

TITLE OR INTEREST THAT HAS ACCRUED OR WHICH MAY ACCRUE IN THE FUTURE

BY REASON OF ANY VIOLATION OF 15 U.S.C. § 1-15 OR ORS 646.725 OR 646.730, IN

CONNECTION WITH ANY GOODS OR SERVICES PROVIDED TO THE

SUBCONTRACTOR FOR THE PURPOSE OF CARRYING OUT THE SUBCONTRACTOR’S

OBLIGATIONS TO CONTRACTOR IN PURSUANCE OF THIS CONTRACT, INCLUDING,

AT AGENCY’S OPTION, THE RIGHT TO CONTROL ANY SUCH LITIGATION ON SUCH

CLAIM FOR RELIEF OR CAUSE OF ACTION.

L. EVENTS OF BREACH.

i. Breach by Contractor. Contractor breaches this Contract if:

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

b. Contractor no longer holds a license or certificate that is required for Contractor to perform Contractor’s obligations under this Contract and Contractor does not obtain the license or certificate within fourteen (14) calendar days after Agency delivers notice of breach to Contractor or a longer period as Agency may specify in the notice; or

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c. Contractor commits any material breach of any covenant, warranty, obligation or certification under this Contract, performs an action that the terms of this Contract prohibit Contractor from performing or fails to perform Contractor’s obligations under this Contract within the time specified or within any extension of that time that Agency grants, and Contractor fails to cure the breach within fourteen (14) calendar days after Agency delivers notice of breach to Contractor or a longer period as Agency may specify in the notice.

ii. Breach by Agency. Agency breaches this Contract if:

a. Agency fails to pay Contractor any amount that the terms of this Contract require Agency to pay Contractor, and Agency fails to cure Agency’s failure to pay within fourteen (14) calendar days after Contractor delivers notice of breach to Agency or a longer period as Contractor may specify in the notice; or

b. Agency commits any material breach of any covenant, warranty, or obligation under this Contract or fails to perform Agency’s obligations under this Contract within the time specified or any extension of time that Contractor grants, and Agency fails to cure the breach within fourteen (14) calendar days after Contractor delivers notice of breach to Agency or a longer period as Contractor may specify in the notice.

M. REMEDIES.

i. Agency’s Remedies. If Contractor is in breach under section 3.L.i. of this Contract, then, in addition to the remedies afforded elsewhere in this Contract, Agency is entitled to recover for any and all damages suffered as the result of Contractor's breach of this Contract, including but not limited to direct, indirect, incidental and consequential damages. Agency may, at Agency’s option, pursue any or all of the remedies available under this Contract and at law or in equity, including, but not limited to:

a. Terminating this Contract under section 3.N.ii. of this Contract;

b. Withholding payment of all amounts in Contractor’s invoices for Services that Contractor is obligated to but has failed to deliver or perform within any scheduled completion dates or that Contractor has performed inadequately or defectively;

c. Initiating an action or proceeding for damages, specific performance, or declaratory or injunctive relief; or

d. Exercising the right of setoff, and withholding of amounts otherwise due and owing to Contractor in an amount equal to Agency’s setoff right, without penalty.

The remedies set forth in this paragraph M.i. are cumulative to the extent the remedies are not inconsistent, and Agency may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever. If it is determined for any reason that Contractor was not in breach under section 3.L.i., the rights and obligations of the Parties are the same as if this Contract was terminated pursuant to section 3.N.ii.a.

ii. Contractor's Remedies. If Agency terminates this Contract for convenience under section 3.N.ii.a., or if Agency is in breach under section 3.L.ii. and whether or not Contractor elects to exercise Contractor’s right to terminate this Contract under section 3.N.iii., Contractor's sole remedy is one of the following, as applicable:

a. For Services compensable on an hourly basis, a claim against Agency for unpaid invoices, hours worked but not yet invoiced, and authorized expenses for Services

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b. For Deliverable-based Services, a claim against Agency for the sum designated for completing the Deliverable multiplied by the percentage of Services completed and accepted by Agency, less previous amounts paid and any claims Agency has against Contractor.

If previous amounts Agency paid to Contractor for Services and goods exceed the amount due to Contractor under this section 3.M.ii., Contractor shall pay the excess amount to Agency immediately upon written demand.

iii. Attorney Fees. Except for defense costs and expenses pursuant to section 3.I., neither Agency nor Contractor is entitled to recover attorney fees, court and investigative costs, or any other fees or expenses associated with pursuing a remedy for damages arising out of or relating to this Contract.

N. TERMINATION.

i. Mutual Consent. The Parties may terminate this Contract at any time by mutual written consent.

ii. Agency Termination. Agency may:

a. Terminate this Contract for Agency’s convenience, at Agency’s sole discretion, upon 30 days’ written notice by Agency to Contractor.

b. Terminate this Contract, at Agency’s sole discretion, immediately upon notice to Contractor or at a later date that Agency may specify in the notice, upon the occurrence of any of the following events:

I. Agency fails to receive funding, appropriations, limitations, allotments or other expenditure authority at levels sufficient to pay for Services;

II. Federal or state laws, regulations, or guidelines are modified or interpreted in a way that prohibits Agency from either purchasing Services under this Contract or paying for Services from the planned funding source; or

III. Contractor is in breach under section 3.J. or section 3.L.i. of this Contract.

Contractor shall stop performance under this Contract as Agency directs in any written notice of termination delivered to Contractor under this section 3.N.ii.

iii. Contractor Termination. Contractor may terminate this Contract immediately upon written notice to Agency, or at a later date as Contractor may establish in the notice, if Agency is in breach under section 3.L.ii. of this Contract.

O. ACCESS TO RECORDS.

Contractor shall retain, maintain, and keep accessible all records relevant to this Contract ("Records") for a minimum of six (6) years, or a longer period as may be required by applicable law following Contract termination or full performance, or until the conclusion of any audit, controversy or litigation arising out of or related to this Contract, whichever ending is later.

Contractor shall maintain all financial Records in accordance with generally accepted accounting principles. During this Records retention period, Contractor shall permit Agency, Agency’s duly

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P. NOTICES.

All notices required under this Contract shall be in writing and addressed to a Party's Authorized Representative. For Agency, the Authorized Representative is the Agency contact person identified in section 7. Contractor's Authorized Representative is the contact person identified in section 6. Mailed notices are deemed received five (5) days after the postmark date when properly addressed and deposited prepaid with the U.S. Postal Service. Faxed notices are deemed received upon electronic confirmation of successful transmission to the designated fax number. Notices delivered by personal delivery are deemed received when delivered to the address specified for the receiving Party’s Authorized Representative.

Q. GOVERNING LAW.

This Contract is governed by and construed in accordance with the laws of the State of Oregon, without regard to principles of conflicts of laws. To the extent not modified by the terms of this Contract, the Uniform Commercial Code as codified in ORS chapters 71 and 72 governs the goods sold under this Contract.

R. VENUE; CONSENT TO JURISDICTION.

Any claim, action, suit or proceeding (collectively, “Proceeding”) between Agency and Contractor that arises from or relates to this Contract must be brought and conducted solely and exclusively within the Circuit Court of Oregon for Marion County; provided, however, if a Proceeding must be brought in a federal forum, then unless otherwise prohibited by law, the Proceeding 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 THESE COURTS AND WAIVES ANY OBJECTION TO VENUE IN THESE

COURTS AND ANY CLAIM THAT THE FORUM IS AN INCONVENIENT FORUM. These provisions do not waive Agency’s sovereign or governmental immunity, whether the immunity is derived from the Eleventh Amendment to the United States Constitution or otherwise, nor do these provisions constitute a waiver of any defenses to Proceedings or jurisdiction based on the Eleventh Amendment or otherwise.

S. SUBCONTRACTS; ASSIGNMENT; SUCCESSORS.

i. SUBCONTRACTS. Contractor may not enter into any subcontracts for any Services required under this Contract without Agency’s prior written consent. In addition to any other provisions Agency may require, Contractor shall include in any permitted subcontract provisions to ensure that Agency will receive the benefit of subcontractor’s performance as if the subcontractor were Contractor with respect to sections 3.A., 3.B., 3.E., 3.I., 3.J., 3.K., 3.O., 3.Q. and 3.S. Agency’s consent to any subcontract does not relieve Contractor of any of Contractor’s duties or obligations under this Contract.

ii. Contractor may not assign, delegate or transfer any of Contractor’s rights or obligations under this Contract without Agency’s prior written consent. Agency’s written consent does not relieve Contractor of any obligations under this Contract, and any of Contractor’s assignees, transferees, or delegates is Contractor’s agent.

iii. The provisions of this Contract are binding upon, and inure to the benefit of, the Parties and the Parties’ respective successors and permitted assigns, if any.

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T. THIRD PARTY BENEFICIARIES.

Agency and Contractor are the only Parties to this Contract and are the only Parties entitled to enforce the terms of this Contract. Nothing in this Contract gives, is intended to give, or may be construed to give or provide any benefit or right not held by or made generally available to the public, whether directly, indirectly or otherwise, to third persons unless the third persons are individually identified by name herein and expressly described as intended beneficiaries under the terms of this Contract. Agency is an intended beneficiary of the terms of this Contract.

U. SEVERABILITY.

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

V. COUNTERPARTS.

This Contract may be executed in several counterparts, all of which when taken together constitute one agreement binding on all Parties, notwithstanding that all Parties are not signatories to the same counterpart. Each copy of this Contract so executed constitutes an original.

W. INTEGRATION AND MERGER.

This Contract constitutes the entire agreement between the Parties on the subject matter thereof. There are no understandings, agreements, or representations, oral or written, regarding this Contract or any of the terms and conditions of this Contract that are not specified in this Contract.

X. AMENDMENTS; WAIVER.

This Contract may be amended to the extent permitted by applicable statutes and administrative rules and as the Amendment scope and process may be further described in the Statement of Work, Attachment 1 to this Contract. A waiver, consent, or Amendment of terms of this Contract does not bind either Party unless in writing and signed by Agency and Contractor, and unless all necessary approvals have been obtained. Waivers and consents are effective only in the specific instance and for the specific purpose given. Agency’s failure to enforce any provision of this Contract does not constitute a waiver by Agency of that or any other provision of this Contract.

Y. SURVIVAL.

In addition to all provisions which by the nature of the provisions continue in effect after Contract termination or full performance, the following provisions continue in effect after any Contract termination or full performance: sections 2.D., 3.A., 3.B., 3.G., 3.I., 3.J., 3.K., 3.L., 3.M., 3.N., 3.O., 3.P., 3.Q., 3.R., 3.Y. and 4.

Z. ORDER OF PRECEDENCE.

This Contract consists of the following documents that are listed in descending order of precedence: (a) the terms and conditions of this Contract, less any Attachments; (b) the Statement of Work; and (c) the Proposal, attached as Exhibit A. The documents described in this paragraph are by this reference incorporated into and made a part of this Contract.

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AA. CONFIDENTIAL INFORMATION.

i. Contractor acknowledges that Contractor and Contractor’s employees or agents may, in the course of performing Contractor’s responsibilities under this Contract, be exposed to or acquire information that is confidential to Agency or Agency’s clients. Any and all information of any form obtained by Contractor or Contractor’s employees or agents in performing this Contract is confidential information of Agency (“Confidential Information”). Contractor shall treat reports or other documents or items (including software) that result from Contractor’s use of the Confidential Information with respect to confidentiality in the same manner as the Confidential Information. Confidential Information does not include information that (a) is or becomes (other than by disclosure by Contractor) publicly known; (b) is furnished by Agency to others without restrictions similar to those imposed by this Contract; (c) is rightfully in Contractor’s possession without the obligation of nondisclosure prior to the time of the disclosure of the information under this Contract; (d) is obtained from a source other than Agency without the obligation of confidentiality; (e) is disclosed with the written consent of Agency; or (f) is independently developed by employees or agents of Contractor who can be shown to have had no access to the Confidential Information.

ii. Contractor agrees to hold Confidential Information in strict confidence, using at least the same degree of care that Contractor uses in maintaining the confidentiality of Contractor’s own confidential information, and not to copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information to third parties, or use Confidential Information for any purposes whatsoever other than the provision of Services to Agency under this Contract, and to advise each of Contractor’s employees and agents of the employees’ and agents’ obligations to keep Confidential Information confidential. Contractor shall use Contractor’s best efforts, which shall include at least all commercially reasonable efforts, to assist Agency in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the generality of the foregoing, Contractor shall advise Agency immediately in the event Contractor learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Contract and Contractor will at Contractor’s expense cooperate with Agency in seeking injunctive or other equitable relief in the name of Agency or Contractor against any such person. Contractor agrees that, except as Agency directs, Contractor will not at any time during or after the term of this Contract disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this Contract. Contractor also, upon termination of this Contract or at Agency’s request, will turn over to Agency or destroy, as appropriate or as Agency directs, all documents, papers, data, Records, and any other matter in Contractor’s possession, in whatever form or format or however stored or recorded, that embody Confidential Information.

iii. Contractor acknowledges and agrees that breach of this paragraph AA., including disclosure of any Confidential Information, will give rise to irreparable injury to Agency that is inadequately compensable in damages. Accordingly, Agency may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available. Contractor acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of Agency and are reasonable in scope and content.

4. INSURANCE.

A. REQUIRED INSURANCE. Contractor shall obtain at Contractor’s expense the insurance specified in this section 4 before performing under this Contract and shall maintain the insurance in full force and at Contractor’s own expense throughout the duration of this Contract and all warranty periods. Contractor shall obtain the following insurance from insurance companies or entities that are authorized to transact the business of insurance and issue coverage in State and that are acceptable to Agency.

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i. WORKERS’ COMPENSATION. All employers, including Contractor, that employ subject workers, as defined in ORS 656.027, shall comply with ORS 656.017 and shall provide workers' compensation insurance coverage for those workers, unless the employers meet the requirement for an exemption under ORS 656.126 (2). Contractor shall require and ensure that each of Contractor’s subcontractors complies with these requirements.

ii. PRINTER’S ERRORS AND OMISSIONS.

This insurance must cover any damages caused by an error, omission or any negligent acts related to the Services to be provided under this Contract.