[F] OPTIONAL_CLAUSES_RESULTING_FROM_THIS_SOLICITATION.pdf

OPTIONAL CONTRACT CLAUSES

ATTORNEYS’ FEES AND EXPENSES

In the event Contractor defaults on any obligations under this Agreement, Contractor shall pay to MSDH all costs and expenses, without limitation, incurred by MSDH in enforcing this Agreement or reasonably related to enforcing this Agreement. This includes but is not limited to investigative fees, court costs, and attorneys’ fees. Under no circumstances shall MSDH be obligated to pay attorneys’ fees or legal costs to Contractor.

AUTHORITY OF SIGNATORY

Contractor acknowledges that the individual executing the contract on behalf of the MSDH is doing so in his or her official capacity only. To the extent any provision contained in the contract exceeds the signatory’s authority, Contractor agrees that it will not look to that individual in his or her personal capacity or otherwise seek to hold him or her individually liable for exceeding such authority.

AUTHORITY TO CONTRACT

Contractor warrants: (1) that it is a validly organized business with valid authority to enter into this agreement;

(2) that it is qualified to do business and in good standing in the State of Mississippi; (3) that entry into and performance under this agreement is not restricted or prohibited by any loan, security, financing, contractual, or other agreement of any kind; and, (4) notwithstanding any other provision of this agreement to the contrary, that there are no existing legal proceedings or prospective legal proceedings, either voluntary or otherwise, which may adversely affect its ability to perform its obligations under this agreement.

CONFIDENTIALITY

MSDH is a public agency of the State of Mississippi and is subject to the Mississippi Public Records Act of 1983. Mississippi Code Annotated §§ 25-61-1, et seq. If a public records request is made for any information provided to MSDH by Contractor, MSDH shall follow the provisions of Mississippi Code Annotated §§ 25-61-9 and 79-23-1 before disclosing such information – unless Contractor has previously indicated the information is not a trade secret or confidential commercial and financial information. The MSDH shall not be liable to the Contractor for disclosure of information required by court order or required by law.

CONTRACT ASSIGNMENT AND SUBCONTRACTING

Contractor acknowledges that it was selected by MSDH to perform the services required hereunder based, in part, upon Contractor’s special skills and expertise. Contractor shall not assign, subcontract, or otherwise transfer this agreement, in whole or in part, without the prior written consent of MSDH, which may, in its sole discretion, approve or deny without reason. Any attempted assignment or transfer of Contractor’s obligations hereunder without consent of the MSDH shall be null and void. Approval of a subcontract by the MSDH shall not be deemed to be approval of the incurrence of any additional obligation of the MSDH. Subcontracts shall be subject to the terms and conditions of this agreement and to any conditions of approval that MSDH may deem necessary. Subject to the foregoing, this agreement shall be binding upon the respective successors and assigns of the parties.

CONTRACTOR PERSONNEL

The MSDH shall, throughout the life of the contract, have the right of reasonable rejection and approval of staff or subcontractors assigned to the work by Contractor. If the MSDH reasonably rejects staff or subcontractors, Contractor shall provide replacement staff or subcontractors satisfactory to the MSDH in a timely manner and at no additional cost to the MSDH. The day-to-day supervision and control of Contractor’s employees and subcontractors is the sole responsibility of Contractor.

COPYRIGHTS

Contractor agrees that the rights and title to any copyrightable material first produced under this agreement belongs to MSDH. Contractor hereby grants to MSDH a royalty-free, nonexclusive, irrevocable license to reproduce, translate, publish, use and dispose of, and to authorize others to do so, all copyrighted or copyrightable work which is incorporated in the material furnished under the agreement regardless of whether it was first produced under this agreement. This grant is provided that such license shall be only to the extent Contractor now has, or prior to the completion of full final settlements of agreement may acquire, the right to grant such license without becoming liable to pay compensation to others.

DISCLOSURE OF CONFIDENTIAL INFORMATION REQUIRED BY LAW

In the event that either party to this Agreement receives notice that a third-party has served upon it a subpoena or other validly issued administrative or judicial process ordering divulgence of the other party’s data or other information, the party subject to the subpoena or other legal process shall promptly inform the other party at the earliest reasonable opportunity, unless prohibited by law from doing so.

Thereafter, the party subject to the legal process shall respond to the extent mandated by law. This section shall survive the termination or completion of this agreement. The parties agree that this section is subject to and superseded by Mississippi Code Annotated §§ 25-61-1, et seq.

ENTIRE AGREEMENT

This agreement, including all contract documents, represents the entire and integrated agreement between the parties hereto and supersedes all prior negotiations, representations or agreements, irrespective of whether written or oral. This agreement may be altered, amended, or modified only by a written document executed by the MSDH and Contractor. Contractor acknowledges that it has thoroughly read all contract documents and has had the opportunity to receive competent advice and counsel necessary for it to form a full and complete understanding of all rights and obligations herein. Accordingly, this agreement shall not be construed or interpreted in favor of or against the MSDH or Contractor on the basis of draftsmanship or preparation hereof.

FAILURE TO DELIVER

In the event of failure of Contractor to deliver services in accordance with the contract terms and conditions, the MSDH, after due oral or written notice, may procure the services from other sources and hold Contractor responsible for any resulting additional purchase and administrative costs. This remedy shall be in addition to any other remedies that the MSDH may have.

FAILURE TO ENFORCE DOES NOT CONSTITUTE WAIVER

Failure by the MSDH at any time to enforce the provisions of the contract shall not be construed as a waiver of any such provisions. Such failure to enforce shall not affect the validity of the contract or any part thereof or the right of the MSDH to enforce any provision at any time in accordance with its terms.

FORCE MAJEURE

Each party shall be temporarily excused from performance for any period and to the extent that it is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond the reasonable control and without the fault or negligence of such party and/or its subcontractors. Such acts shall include without limitation acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, earthquakes, floods, or other natural disasters (“force majeure events”). When such a cause arises, Contractor shall notify the Agency in writing at its earliest reasonable opportunity of the cause of its inability to perform, how it affects its performance, and the anticipated duration of the inability to perform. All parties shall make reasonable efforts to minimize the impact of the force majeure event on contract performance. The MSDH may exercise any rights it has under the contract which are available when neither party is in default.

INDEMNIFICATION (for contracts with non-state Agencies or entities) To the fullest extent allowed by law, Contractor shall indemnify, defend, save and hold harmless, protect, and exonerate the MSDH its commissioners, board members, officers, employees, agents, and representatives, and the State of Mississippi from and against all claims, demands, liabilities, suits, actions, damages, losses, and costs of every kind and nature whatsoever including, without limitation, court costs, investigative fees and expenses, and attorneys’ fees, arising out of or caused by Contractor and/or its partners, principals, agents, employees and/or subcontractors in the performance of or failure to perform this agreement.

In the MSDH’s sole discretion, upon approval of the Office of the Mississippi Attorney General and the MSDH, Contractor may be allowed to control the defense of any such claim, suit, etc. In the event Contractor defends said claim, suit, etc., Contractor shall use legal counsel acceptable to the Office of the Mississippi Attorney General and the MSDH. Contractor shall be solely responsible for all costs and/or expenses associated with such defense, and the MSDH shall be entitled to participate in said defense. Contractor shall not settle any claim, suit, etc. without the concurrence of the Office of the Mississippi Attorney General and the MSDH, which shall not be unreasonably withheld.

INDEPENDENT CONTRACTOR STATUS

Contractor shall, at all times, be regarded as and shall be legally considered an independent contractor and shall at no time act as an agent for the MSDH. Nothing contained herein shall be deemed or construed by the MSDH, Contractor, or any third party as creating the relationship of principal and agent, master and servant, partners, joint ventures, employer and employee, or any similar such relationship between the MSDH and Contractor. Neither the method of computation of fees or other charges, nor any other provision contained herein, nor any acts of the MSDH or Contractor hereunder creates or shall be deemed to create a relationship other than the independent relationship of the MSDH and Contractor.

Contractor’s personnel shall not be deemed in any way, directly or indirectly, expressly or by implication, to be employees of the MSDH. Neither Contractor nor its employees shall, under any circumstances, be considered servants, agents, or employees of the MSDH, and the MSDH shall be at no time legally responsible for any negligence or other wrongdoing by Contractor, its servants, agents, or employees.

The MSDH shall not withhold from the contract payments to Contractor any federal or state unemployment taxes, federal or state income taxes, Social Security tax, or any other amounts for benefits to Contractor. Further, the MSDH shall not provide to Contractor any insurance coverage or other benefits, including Workers’ Compensation, normally provided by the MSDH for its employees.

INFORMATION DESIGNATED BY AGENCY AS CONFIDENTIAL

Any liability resulting from the wrongful disclosure of confidential information on the part of Contractor, or its subcontractor(s) shall rest with Contractor. Disclosure of any confidential information by Contractor or its subcontractor(s) without the express written approval of the MSDH may result in the immediate termination of this agreement.

INFORMATION DESIGNATED BY CONTRACTOR AS CONFIDENTIAL

Any disclosure of those materials, documents, data, and other information which Contractor has designated in writing as proprietary and confidential shall be subject to the provisions of Mississippi Code Annotated §§ 25- 61-9 and 79-23-1. The services to be provided, the unit prices and overall price to be paid, and the term of the contract shall not be deemed a trade secret or confidential commercial or financial information.

INFRINGEMENT INDEMNIFICATION

Contractor warrants that the materials and deliverables provided to the MSDH under this agreement, and their use by the MSDH, will not infringe or constitute an infringement of any copyright, patent, trademark, or other proprietary right. Should any such items become the subject of an infringement claim or suit, Contractor shall defend the infringement action and/or obtain for the MSDH the right to continue using such items without additional cost to the Agency. Should Contractor fail to obtain for the MSDH the right to use such items, Contractor shall suitably modify them to make them non-infringing or substitute equivalent software or other items at Contractor’s expense.

In the event the above remedial measures cannot possibly be accomplished, and only in that event, Contractor may require the MSDH to discontinue using such items, in which case Contractor will refund to the MSDH the fees previously paid by the MSDH for the items the customer may no longer use, and shall compensate the MSDH for the lost value of the infringing part to the phase in which it was used, up to and including the contract price for said phase. Said refund shall be paid within 10 business days of notice to the MSDH to discontinue said use.

Scope of Indemnification: Provided that the MSDH promptly notifies Contractor in writing of any alleged infringement claim of which it has knowledge, Contractor shall defend, indemnify, and hold harmless the MSDH against any such claims, including but not limited to any expenses, costs, damages and attorney fees that a court finally awards for infringement based on the programs and deliverables provided under this agreement.

In the MSDH’s sole discretion, upon approval of the Office of the Mississippi Attorney General and the MSDH, Contractor may be allowed to control the defense of any such claim, suit, etc. In the event Contractor defends said claim, suit, etc., Contractor shall use legal counsel acceptable to the Office of the Mississippi Attorney General and the MSDH. Contractor shall be solely responsible for all costs and/or expenses associated with such defense, and the MSDH shall be entitled to participate in said defense. Contractor shall not settle any claim, suit, etc. without the concurrence of the Office of the Mississippi Attorney General and the MSDH, which shall not be unreasonably withheld.

INSURANCE

Contractor represents that it will maintain workers’ compensation insurance in compliance with Mississippi law which shall inure to the benefit of all Contractor’s personnel provided hereunder, comprehensive general liability or professional liability insurance with minimum limits of [$Amount] per occurrence, and fidelity bond insurance with minimum limits of [$Amount]. All general liability, professional liability, and fidelity bond insurance will provide coverage to the MSDH as an additional insured. The MSDH reserves the right to request from carriers, certificates of insurance regarding the required coverage. Insurance carriers shall be licensed or hold a Certificate of Authority from the Mississippi Department of Insurance.

LIQUIDATED DAMAGES

MSDH may describe the event(s) which would trigger the liquidated damages clause and the method by which liquidated damages will be calculated.

MODIFICATION OR RENEGOTIATION REQUIRED BY CHANGE IN LAW

The parties agree to renegotiate the agreement in good faith if federal and/or state revisions to any applicable laws or regulations make changes in this agreement necessary. This agreement may be modified only by written agreement signed by the parties hereto and approval by the Public Procurement Review Board, if required.

NON-SOLICITATION OF EMPLOYEES

Each party to this agreement agrees not to employ or to solicit for employment, directly or indirectly, any persons in the full-time or part-time employment of the other party until at least one year after this agreement terminates unless mutually agreed to in writing by the MSDH and Contractor. Any such employment or solicitation for employment shall be in compliance with the Mississippi Ethics in Government laws, codified at Mississippi Code Annotated §§ 25-4-101 through 25-4-121.

NOTICES

All notices required or permitted to be given under this agreement shall be in writing and personally delivered or sent by certified United States mail, postage prepaid, return receipt requested, to the party to whom the notice should be given at the address set forth below. Notice shall be deemed given when actually received or when refused. The parties agree to promptly notify each other in writing of any change of address.

For Contractor: [Name & Title] For [Agency: [Name & Title]

[Contact Information] [Contact Information]

ORAL STATEMENTS

No oral statement of any person shall modify or otherwise affect the terms, conditions, or specifications stated in this contract. All modifications to the contract shall be made in writing by the MSDH, agreed to by Contractor¸ and approved by the Public Procurement Review Board, if required.

OWNERSHIP OF DOCUMENTS AND WORK PAPERS

MSDH shall own all documents, files, reports, work papers and working documentation, electronic or otherwise, created in connection with the project which is the subject of this agreement, except for Contractor’s internal administrative and quality assurance files and internal project correspondence.

Contractor shall deliver such documents and work papers to MSDH upon termination or completion of the agreement. The foregoing notwithstanding, Contractor shall be entitled to retain a set of such work papers for its files and shall obtain written permission from MSDH to use such workpapers, subject to any copyright protections.

PRICE ADJUSTMENT

Any adjustments in price during the life of a contract is limited to the price adjustment methodology stated in the solicitation, or if the contract was not formally solicited, is limited to the methodology included in the contract at the time the contract was originally executed.

PRIORITY

The contract consists of this agreement, the [IFB, RFP, RFQ] [RFx No. 1234567890], attached hereto as Attachment A, and the Contractor’s [bid, proposal, qualification] submitted in response, attached hereto as Attachment B. Any ambiguities, conflicts, or questions of interpretation of this contract shall be resolved first by reference to this agreement and, if still unresolved, by reference to Attachment A and, if still unresolved, by reference to Attachment B. Omission of any term or obligation from this agreement shall not be deemed an omission from this contract if such term or obligation is provided for elsewhere in this contract. [The Agency has discretion as to which documents to attach to the contract and what priority those documents should be assigned.]

PROFESSIONAL CERTIFICATIONS AND LICENSES

Contractor shall provide official copies of all valid licenses and certificates required for performance of the work. The official copies shall be delivered to the MSDH no later than ten business days after Contractor receives the Notice of Intent to Award from the MSDH. Current official copies of licenses and certificates shall be provided to the MSDH within five business days of request at any time during the contract term.

Licenses and certificates required for this contract include the following: a business license valid in Mississippi; a professional license or certificate in the field MSDH requires or any other additional certificates or licensing.

QUALITY CONTROL

Contractor shall institute and maintain throughout the contract period a properly documented quality control program designed to ensure that the services are provided at all times and in all respects in accordance with the contract. The program shall include providing supervision and conducting frequent inspections of Contractor’s staff and ensuring that accurate records are maintained describing the disposition of all complaints. The records so created shall be open to inspection by the MSDH.

RECORD RETENTION AND ACCESS TO RECORDS

Contractor shall maintain such financial records and other records as may be prescribed by the MSDH or by applicable federal and state laws, rules, and regulations. Provided Contractor is given reasonable advance written notice and such inspection is made during normal business hours of Contractor, the MSDH or any duly authorized representatives shall have unimpeded, prompt access to any of Contractor’s books, documents, papers, and/or records which are relevant to this agreement. All records related to this agreement shall be retained by Contractor for three years after final payment is made under this agreement and all pending matters are closed; however, if any audit, litigation or other action arising out of or related in any way to this project is commenced before the end of the three year period, the records shall be retained for one year after all issues arising out of the action are finally resolved or until the end of the three year period, whichever is later.

RECOVERY OF MONEY

Whenever, under the contract, any sum of money shall be recoverable from or payable by Contractor to the MSDH, the same amount may be deducted from any sum due to Contractor under the contract or under any other contract between Contractor and the MSDH. The rights of the MSDH are in addition and without prejudice to any other right the MSDH may have to claim the amount of any loss or damage suffered by the MSDH on account of the acts or omissions of Contractor.

RENEWAL OF CONTRACT

The contract may be renewed at the discretion of the MSDH for a period of successive one-year periods under the same prices, terms, and conditions as in the original contract. The total number of contract years shall not exceed five (5).

REQUIREMENTS CONTRACT

During the period of the contract, Contractor shall provide all services described in the contract.

Contractor understands and agrees that this is a requirements contract and that the MSDH shall have no obligation to Contractor if no services are required. Any quantities that are included in the scope of work reflect the current expectations of the MSDH for the period of the contract. The amount is only an estimate and Contractor understands and agrees that the MSDH is under no obligation to Contractor to utilize any amount of the services as a result of having provided this estimate or of having any typical or measurable requirement in the past. Contractor further understands and agrees that the MSDH may require services in an amount less than or in excess of the estimated annual contract amount and that the quantity actually used, whether in excess of the estimate or less than the estimate, shall not give rise to any claim for compensation other than the total of the unit prices in the contract for the quantity actually used.

RIGHT TO AUDIT

Contractor shall maintain such financial records and other records as may be prescribed by the MSDH or by applicable federal and state laws and regulations. Contractor shall retain these records for a period of three years after final payment, or until they are audited by the MSDH, whichever event occurs first. These records shall be made available during the term of the contract and the subsequent three-year period for examination, transcription, and audit by the MSDH, the Mississippi State Auditor’s Office, and/or other entity of the state.

RIGHT TO INSPECT FACILITY

The MSDH may, at reasonable times, inspect the place of business of a Contractor or any subcontractor which is related to the performance of any contract awarded by the MSDH.

SEVERABILITY

If any part of this agreement is declared to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision of the agreement that can be given effect without the invalid or unenforceable provision, and to this end the provisions hereof are severable. In such event, the parties shall amend the agreement as necessary to reflect the original intent of the parties and to bring any invalid or unenforceable provisions in compliance with applicable law.

STATE PROPERTY

Contractor will be responsible for the proper custody and care of any state-owned property furnished for Contractor’s use in connection with the performance of this agreement. Contractor will reimburse the state for any loss or damage, normal wear and tear excepted.

SURETY REQUIRED

A performance bond in the amount of 100 percent of the total contract price shall be required of the successful offeror to ensure satisfactory completion of the work. The bond shall be a corporate surety bond issued by a surety company authorized to do business in the State of Mississippi. In no event shall the requirement for the performance bond be waived.

THIRD PARTY ACTION NOTIFICATION

Contractor shall give the customer prompt notice in writing of any action or suit filed, and prompt notice of any claim made against Contractor by any entity that may result in litigation related in any way to this agreement.

VARIATION IN QUANTITY (for definite quantity contracts) The quantity of services specified in this contract may be increased to the extent agreeable by both parties. However, the unit prices shall remain unchanged, other than as allowed by a price adjustment which would have otherwise been applicable.