FINAL - GOODS TERMS AND CONDITIONS 9.4.24.pdf

OHIO ATTORNEY GENERAL

GOODS TERMS AND CONDITIONS

A. ANTITRUST. The Attorney General and the Contractor recognize that, in actual economic practice, overcharges resulting from antitrust violations are usually borne by the Attorney General. The Contractor therefore assigns to the Attorney General all State and federal antitrust claims and causes of action that the Contractor has or acquires relating to the goods and services acquired under this Contract.

B. APPROPRIATION OF FUNDS. The Attorney General’s funds are contingent upon the availability of lawful appropriations. If the General Assembly or any third-party who is providing funding fails at any time to continue funding for the payments or any other obligations due by the Attorney General under this Contract, the Attorney General will be released from its obligations on the date funding expires. If appropriations are approved, the Attorney General may continue this Contract past the current biennium by issuing written notice of continuation to the Contractor. Any obligations of the Attorney General are subject to Section 126.07 of the Ohio Revised Code.

C. CAMPAIGN CONTRIBUTIONS. Contractor hereby certifies that all applicable parties are in full compliance with Section 3517.13 of the Ohio Revised Code.

D. COMPLIANCE WITH LAW. The Contractor must comply throughout the duration of the Contract with all applicable federal, State, local laws and Executive Orders while performing under this Contract.

E. CONFLICT OF INTEREST/ETHICS. Contractor represents, warrants and certifies that it and its employees engaged in the administration or performance of this Contract are knowledgeable of and understand the Ohio Ethics and Conflict of Interest laws including but not limited to Chapter 102 and Sections 2921.42 and 2921.43 of the Ohio Revised Code. Contractor further represents, warrants, and certifies that neither Contractor nor any of its employees will do any act that is inconsistent with such laws or otherwise presents a conflict of interest.

F. CONTRACTOR’S WARRANTY AGAINST AN UNRESOLVED FINDING FOR RECOVERY. The Contractor warrants that the Contractor is not subject to an unresolved finding for recovery pursuant to Section 9.24 of the Ohio Revised Code. If the warranty is false on the date the parties signed this Contract, the Contract is void ab initio, and the Contractor shall immediately repay any funds paid under this Contract.

G. DEBARMENT. Contractor represents and warrants that neither it, nor any of its subcontractors, are debarred from consideration for contract awards by any governmental agency. If this representation and warranty is found to be false, this Contract is void ab initio, and the Contractor shall immediately repay any funds paid under this Contract.

H. EQUAL EMPLOYMENT OPPORTUNITY. The Contractor will comply with all State and federal laws regarding equal employment opportunity and fair labor and employment practices, including Section 125.111 of the Ohio Revised Code and all related Executive Orders.

I. GOVERNING LAW. This Contract shall be governed by the laws of the State of Ohio, and the venue for any disputes will be exclusively with the appropriate court in Franklin County, Ohio.

J. INDEPENDENT CONTRACTOR ACKNOWLEDGEMENT. It is fully understood and agreed that Contractor is an independent contractor and is not an agent, servant, or employee of the Attorney General. Contractor declares that it is engaged as an independent business and has complied with all applicable federal, Attorney General, and local laws regarding business permits and licenses of any kind, including, but not limited to, any insurance coverage, workers’ compensation, or unemployment compensation that is required in the normal course of business and will assume all responsibility for any federal, Attorney General, municipal or other tax liabilities.

Additionally, Contractor understands that as an independent contractor, it is not a public employee and is not entitled to contributions from the Attorney General to any public employee retirement system.

Contractor acknowledges and agrees that any individual providing personal services under this Contract is not a public employee for purposes of Chapter 145 of the Ohio Revised Code. Unless Contractor is a “business entity” as that term is defined in Section 145.037 of the Ohio Revised Code (“an entity with five or more employees that is a corporation, association, firm, limited liability company, partnership, sole proprietorship, or other entity engaged in business”), Contractor shall have any individual performing services under the Contract complete and submit to the Attorney General the Independent Contractor/Worker Acknowledgement form, available at https://www.opers.org/forms-archive/PEDACKN-Non-Member-Acknowledgment.pdf. Contractor’s failure to complete and submit the Independent Contractor/Worker Acknowledgement form at the time Contractor executes this Contract shall serve as Contractor’s certification that Contractor is a “business entity” as that term is defined in Section 145.037 of the Ohio Revised Code.

https://www.opers.org/forms-archive/PEDACKN-Non-Member-Acknowledgment.pdf

K. TAXES. Pursuant to Section 5739.02 of the Ohio Revised Code, the Attorney General is exempt from sales tax.

Pursuant to Section 5741.02(C) of the Ohio Revised Code, the Attorney General is exempt from use tax.

L. TRADE. Pursuant to Section 9.76(B) of the Ohio Revised Code, Contractor warrants that Contractor is not boycotting any jurisdiction with whom the State of Ohio can enjoy open trade, including Israel, and will not do so during the Contract period. The Attorney General does not acquire supplies or services that cannot be imported lawfully into the United States or transact business with any entity or individual subject to financial sanctions imposed by the United States. The Contractor certifies that it, its subcontractors, and any agent of the Contractor or its subcontractors, will acquire any supplies or services in accordance with all trade control laws, regulations or orders of the United States, including the prohibited source regulations set forth in subpart 25.7, Prohibited Sources, of the Federal Acquisition Regulation and any sanctions administered or enforced by the U.S.

Department of Treasury’s Office of Foreign Assets Control. A list of those entities and individuals subject to sanctions can be found at https://home.treasury.gov/policy-issues/financial-sanctions/specially-designated-nationals-and-blocked- persons-list-sdn-human-readable-lists. These sanctions generally preclude most transactions involving Cuba, Iran, and Sudan, and most imports from Burma or North Korea.

M. LEGAL REPRESENTATION AND RIGHTS. The Ohio Attorney General is the chief law officer for the State of

Ohio, its agencies, boards and commissions, and only the Ohio Attorney General has the authority to appoint outside legal counsel to represent the Attorney General. Contractor agrees that any provisions in this Contract or any documents incorporated by reference that provide or allow for outside legal representation to defend or settle claims on behalf of the Attorney General or provide for a third party to have sole control of a defense or settlement of a claim do not meet the requirements of Attorney General law and are considered stricken. Contractor also agrees that, unless specifically agreed to in writing by the Attorney General, any provisions that require or provide for a waiver of any legal rights, remedies, or litigation defenses (i.e., waiver of a jury trial) do not meet the requirements of Attorney General law and are considered stricken.

N. AMENDMENTS. No change to any provision of this Contract will be effective unless it is in writing and signed by the parties to the Contract. However, the Attorney General may document non-material changes in writing and provide notice to the Contractor. Unless specifically provided otherwise in this Contract or agreed to in writing by the Contracting or Attorney General, no terms or conditions included on a Contractor’s quote or ordering document will be valid or enforceable against the Attorney General and are specifically excluded from this Contract. Further, no “click-through,” “shrink-wrap,” “browse-wrap,” or other terms that have not been specifically negotiated by the Contractor and the Attorney General, whether before, on, or after the date of this Contract, will be effective to add or modify the terms of this Contract, regardless of any party’s “acceptance” of those terms by electronic means.

No Attorney General employee has the authority to modify, amend, or supplement this Contract through electronic means.

O. NOTICES. For any notice under this Contract to be effective, the notice must be made in writing and delivered to the appropriate contact provided in the Contract.

P. ORDER OF PRIORITY. If there is any inconsistency or conflict between these Standard Terms and Conditions and any provision incorporated by reference or included by the Contractor, these Standard Terms and Conditions will prevail.

Q. SEVERABILITY. If any provision of the Contract or the application of any provision is held by a court to be contrary to law, the remaining provisions of the Contract will remain in full force and effect.

R. SUBCONTRACTING. The Attorney General recognizes that it may be necessary for the Contractor to use a subcontractor to perform a portion of the work under the Contract. In those circumstances, the Contractor shall submit a list identifying the Contractor’s subcontractors. The Attorney General reserves the right to reject any subcontractor submitted by the Contractor. All subcontracts will be at the sole expense of the Contractor and the Contractor will be solely responsible for payment of its subcontractors. The Contractor assumes responsibility for all sub- contracting and third-party manufacturer work performed or product delivered under the Contract. All agreements with subcontractors must incorporate this Contract by reference and include the following provisions:

(1) the subcontractor agrees to be bound by all applicable terms and conditions of this Contract; and (2) the terms of this Contract prevail over any conflicting terms of the agreement with the subcontractor. The Contractor will be the sole point of contact with regard to all contractual matters.

S. CERTIFICATION OF FUNDS/PURCHASE ORDER REQUIREMENTS. None of the duties or obligations in this

Contract are binding on the Attorney General, and the Contractor will not begin performance on this Contract, until https://home.treasury.gov/policy-issues/financial-sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists https://home.treasury.gov/policy-issues/financial-sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists https://home.treasury.gov/policy-issues/financial-sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists all of the following conditions are met: (1) All statutory provisions under the Ohio Revised Code have been met (2) all necessary funds are made available by the Attorney General; (3) If required, the Controlling Board of Ohio has approved the purchase in accordance with Section 127.16 of the Ohio Revised Code;(4) If applicable, an official State of Ohio Purchase Order (P.O.) has been issued from the appropriate Attorney General, which is certification that the above requirements have been met.

T. INVOICE REQUIREMENTS. The Contractor or dealer, authorized to submit invoices, must submit an invoice to the office designated in the purchase order. After Contractor receives a purchase order, Contractor shall submit an invoice for the Work performed consistent with the purchase order. Each invoice shall contain an itemization of goods purchased. All invoices shall contain Contractor's name and address and shall reference the Ohio Attorney General's Office and list the billing address as 30 E. Broad St., 15th Floor, Attn: Finance, Columbus, Ohio, 43215. After receipt and approval by the Attorney General of a proper invoice, as defined by R.C.

125.01(B), payment will be made pursuant to R.C. 126.30(A). Unless otherwise directed by the Attorney General, invoices should be directed via email to: invoices@OhioAGO.gov

U. GENERAL REPRESENTATIONS AND WARRANTIES. The Contractor warrants that:

1. Goods will not infringe on the intellectual property rights of any third party.

2. All warranties are in accordance with the Contractor’s standard business practices.

3. The Goods are merchantable and fit for the particular purpose described in this Contract and will perform

Goods in accordance with its user manuals, technical materials, and related writings.

4. The Goods comply with all governmental, environmental and safety standards.

5. The Contractor has the right to enter into this Contract.

6. The Contractor has not entered into any other contracts or employment relationships that restrict the

Contractor’s ability to perform under this Contract.

7. The Contractor will observe and abide by all applicable laws and regulations, including those of the Attorney

General regarding conduct on any premises under the Attorney General’s control.

8. The Contractor has good and marketable title to any Goods delivered under this Contract for which title passes to the Attorney General.

9. For one year from the delivery date of any products or software, the products or software will be free of material defects and free of viruses, including the media on which it is delivered, if applicable.

The Contractor must notify the Attorney General in writing immediately upon the discovery of any breach of the warranties given above, or if any work of the Contractor or any Goods fails to comply with these warranties, and the Contractor is so notified in writing, the Contractor will correct such failure in a commercially reasonable time or as specified in the Contract. If the Contractor fails to comply, the Contractor will refund the amount paid for the Goods. The Contractor will also indemnify the Attorney General for any direct damages and claims by third parties based on breach of these warranties. Any other express warranties offered by the Contractor shall be a minimum of one year from acceptance or the Contractor’s standard warranty whichever is longer.

V. INDEMNITY. The Contractor must indemnify the Attorney General for all liability and expense arising out of the performance of this Contract, provided that such liability or expense is due to the negligence or other tortious conduct of the Contractor, its employees, agents, or subcontractors. The Contractor will not be responsible for any damages or liability to the extent caused by the negligence or willful misconduct of the Attorney General, its employees, other contractors, or agents.

The Contractor must also indemnify, release, protect, and hold the Attorney General harmless from any claim of infringement of a copyright, patent, trade secret, or similar intellectual property right based on the Attorney General’s proper use of any Goods purchased under this Contract. This obligation of indemnification will not apply where the Attorney General has modified or misused the Goods and the claim of infringement is based on the modification or misuse. If a successful claim of infringement is made, or if the Contractor reasonably believes that an infringement claim that is pending may actually succeed, the Contractor must take one (1) of the following four (4) actions within an acceptable timeframe:

1. Modify the Goods so that the Goods is no longer infringing;

2. Replace the Goods with an equivalent or better item;

3. Acquire the right for the Attorney General to use the infringing Goods as intended; or

4. Remove the infringing Goods and refund the fee the Attorney General paid for such Goods and any other affected Goods.

The Attorney General agrees to give the Contractor notice of any such claim as soon as reasonably practicable mailto:invoices@OhioAGO.gov and to give the Contractor the authority to settle or otherwise defend any such claim upon consultation with and approval by the Ohio Attorney General.

W. INSURANCE. Until all obligations under this Contract are satisfied, and without limiting Contractor’s indemnification obligations herein, Contractor shall procure and maintain, for the duration of the Contract, the insurance policies set forth below. Contractor shall procure and maintain insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the services hereunder by the Contractor, its agents, representatives, or employees. Contractor shall also procure and maintain insurance for claims arising out of their services including, but not limited to, loss, damage, theft or other misuse of data, infringement of intellectual property, invasion of privacy and breach of data, as applicable. All commercial insurance required shall be provided by insurers with a rating of not less than A-VII from A.M. Best or a comparable rating agency.

Coverage shall be at least as broad as:

1. Commercial General Liability: written on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. Defense costs shall be outside the policy limit. The State of Ohio, its officers, officials and employees are to be covered as additional insureds on the commercial general liability policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations.

2. Automobile Liability: covering Code 1 (any auto), or if Contractor has no owned autos, Code 8 (hired) and 9

(non-owned), with a limit no less than $1,000,000 per accident for bodily injury and property damage.

3. Workers' Compensation insurance as required by the State of Ohio, or the state in which the work will be performed, with Statutory Limits, and Employer's Liability Insurance with a limit of no less than $1,000,000 per accident for bodily injury or disease. If Contractor is a sole proprietor, partnership or has no statutory requirement for workers’ compensation, Contractor must provide a letter stating that it is exempt and agreeing to hold the Attorney General harmless from loss or liability for such.

The insurance obligations under this Contract shall be the minimum insurance coverage requirements and/or limits shown in this Contract. Any insurance proceeds in excess of or broader than the minimum required coverage and/or minimum required limits, which are applicable to a given loss, shall be available to the Attorney General. No representation is made that the minimum insurance requirements of this Contract are sufficient to cover the obligations of the Contractor under this Contract.

Pursuant to Ohio Revised Code 2743.02(D), all applicable insurance or other means of recovery shall apply to any claim arising from the Contractor’s activities relating to this Contract on a primary basis. The insurance or self-insurance maintained by the Attorney General shall not contribute to claims made State of Ohio, except where there is negligence on the part of the Attorney General, and any such demands shall be reduced by all collateral recovery sources available to or received by the claimant.

Umbrella or Excess Insurance Policies. Umbrella or excess commercial liability policies may be used in combination with primary policies to satisfy the limit requirements above. Such umbrella or excess commercial liability policies must apply without any gaps in the limits of coverage and be at least as broad as and follow the form of the underlying primary coverage required above.

Notice of Cancellation. Contractor must provide the Attorney General with written notice of cancellation or material change to any insurance policy required above as soon as possible and must use best efforts to notify the Attorney General at least 30 days in advance of such cancellation or material change. Material change shall be defined as any change to the insurance limits, terms or conditions that would limit or alter the Attorney General’s available recovery under any of the policies required above. A lapse in any required insurance coverage during this Contract shall be a breach of this Contract.

Deductibles and Self-Insured Retentions. Deductibles and self-insured retentions must be declared to and approved by the Attorney General. The Attorney General may require the Contractor to provide proof of ability to pay losses and related investigations, claims administration and defense expenses within the retention.

Claims Made Policies. If any of the required policies provide coverage on a claims-made basis:

1. The Retroactive Date must be shown and must be before the date of the Contract or the beginning of contract work.

2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Contract work.

3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a

Retroactive Date prior to the Contract effective date, the Contractor must purchase "extended reporting'' coverage for a minimum of five (5) years after completion of contract work. The Discovery Period must be active during the Extended Reporting Period.

Verification of Coverage. Contractor must furnish the Attorney General with certificates of insurance or copies of the applicable policy language effecting coverage required by this clause. All certificates are to be received and approved by the Attorney General before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. The Attorney General reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.

Subcontractors. Contractor must require and verify that all subcontractors maintain insurance with sufficient limits for the nature of the products or services they are providing, and Contractor shall ensure that the State of Ohio/Attorney General’s Office is an additional insured on commercial general liability insurance required from subcontractors. Contractor will indemnify the Attorney General for damages that exceed a subcontractor’s policy limits.

Special Risks or Circumstances. Attorney General reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.

X. LIMITATION OF LIABILITY. The parties agree as follows:

1. Neither party will be liable for any indirect, incidental or consequential loss or damage of any kind including but not limited to lost profits, even if the parties have been advised, knew, or should have known of the possibility of damages.

2. Notwithstanding any other limitation provisions, the Contractor agrees that the Contractor shall be liable for all direct loss or damages due to the negligence or other tortious conduct of the Contractor under this Contract.

3. Any limitation provisions contained in the documents and materials incorporated by reference into this Contract are considered stricken and of no force and effect.

Y. PRODUCT RECALL. In the event product delivered has been recalled, seized, or embargoed and/or has been determined to be misbranded, adulterated, or in the case of consumable product, found to be unfit for human consumption by the packer, processor, manufacturer or by any Attorney General or federal regulatory agency, the Contractor shall notify the Attorney General within two business days after notice has been given. The Contractor shall, at the option of the Attorney General, either reimburse the purchase price or provide an equivalent replacement product at no additional cost. The Contractor shall be responsible for removal and/or replacement of the affected product within a reasonable time as determined by the Attorney General. At the option of the Attorney General, the Contractor may be required to reimburse storage and handling fees to be calculated from time of delivery and acceptance to actual removal. The Contractor will bear all costs associated with the removal and proper disposal of the affected product. Failure to reimburse the purchase price or provide equivalent replacement product will be considered a default.

Z. F.O.B. DESTINATION/PRE-PAID/ALLOWED. The Contractor must provide Goods under this Contract F.O.B. Destination/Pre-Paid/Allowed. The place of destination will be specified by the Attorney General on the purchase order or other ordering document. Cost of the freight must be borne and paid by the Contractor unless otherwise specified by the Attorney General.

All risk of loss, regardless of the cause, will remain with the Contractor until title to the Goods passes to the Attorney General. Unless otherwise provided in this Contract, the Attorney General will determine whether the Contractor provided each Goods required in this Contract and has fully met all work requirements of this Contract.

Title to any Goods will pass to the Attorney General on Acceptance of the Goods.

AA. RETURNED GOODS.

1. Returned goods, when due to Contractor error (i.e., over-shipment, defective merchandise, unapproved substitution, etc.), shall be returned to the Contractor at the Contractor’s expense. The Contractor shall make arrangements to remove the returned goods from the Attorney General premises within seven (7) calendar days after notification. The Contractor shall not apply any restocking or other charges to the Attorney General. At the option of the Attorney General, replacement items may be accepted and will be shipped within seven (7) calendar days of notification. Failure of the Contractor to arrange for return of the items within the specified time will result in the items being deemed as abandoned property and the Attorney General will dispose of accordingly.

2. For orders of custom manufactured items, the Contractor must provide a production sample of the item to the Attorney General for acceptance. The production sample must be identical to the item to be provided.

The Attorney General will provide written acceptance of the item prior to the Contractor continuing with production. Once delivery and acceptance has been completed and the Attorney General determines for any reason that any remaining quantities will not be used, the agency may request the return of the custom manufactured items. Acceptance of the return of custom manufactured items will be at the option of the Contractor. Failure of the Contractor to provide a production sample and obtain written approval from the Attorney General will result in the Contractor bearing all responsibility and costs associated with the return of these goods.

3. Returned goods of regular catalog stock merchandise, when due to agency error (i.e., over purchase, discontinued use, inventory reduction, etc.) will be accepted by the Contractor if notice is given by the Attorney General within six (6) months of delivery and acceptance. All items to be returned must be unused and in their original containers and in suitable condition for resale. Return of regular stock catalog merchandise, when delivery and acceptance exceed six (6) months will be at the option of the Contractor.

BB. FORCE MAJEURE (EXCUSABLE DELAY). Neither party will be liable for any delay in its performance that arises from causes beyond its or its subcontractor’s control and without its or its subcontractor’s negligence or fault. For purposes of this Section, the term “force majeure event” includes without limitation, the following: Acts of God, such as pestilence, lightning, earthquakes, fires, storms, hurricanes, tornadoes, floods, washouts, droughts, severe weather. Additional circumstances and events include epidemics, explosions, restraining of government and people, war, strikes, and other similar events or causes.

If the Attorney General or the Contractor cannot perform any part of its obligations under this Contract because of force majeure, that party is excused from those obligations, to the extent that performance is prevented by the force majeure event and that party took all commercially reasonable steps to mitigate or avoid the effects of the force majeure event. If there is only a delay in performance, such delay may extend only for that time lost because of the force majeure event. If a party is unable to perform those above-referenced obligations, it must also do the following:

1. Promptly notify the other party, in writing, of any material delay in performance due to a specified force majeure event;

2. Provide detailed information of the force majeure event;

3. Provide a proposed revised performance date to make up for performance delays due to the force majeure event. When applicable, the revised schedule must provide for performance time not to exceed the time lost as a result of the force majeure event.

CC. SUSPENSION/TERMINATION. In the event of suspension or termination, the Attorney General will issue a notice. Any notice of suspension or termination, in full or in part, will be effective as specified in the notice. The Contractor must immediately cease all work, refuse any additional orders, and take all steps necessary to minimize the costs the Contractor will incur related to this Contract as directed by the notice. Suspension or termination of this Contract will not limit the Contractor’s continuing obligations with respect to Goods that the Attorney General paid for or ordered before the date of such suspension or termination or limit the Attorney General’s rights in such.

At the Attorney General’s request, the Contractor must immediately prepare a final report and deliver such report to the Attorney General. The report must detail the work completed and/or the orders received and not processed prior to the time of notice. If applicable, the report must include estimated time for delivery of all orders received but not processed.

1. Contract or Order Suspension.

a. Suspension for Cause. If the Contractor fails to perform any one of the Contractor’s obligations under an order, the Contractor will be in default and the Attorney General may suspend rather than terminate this Contract or an order. In the case of suspension for default, the Attorney General will be entitled to all remedies available in these Terms and Conditions and under law.

b. Suspension for Convenience. In the case of a suspension for the Attorney General’s convenience, Contractor may be entitled to compensation for orders received and accepted before the suspension.

The notice of suspension whether, with or without cause, will be effective immediately, on the Contractor’s receipt of the notice.

2. Contract or Order Termination.

a. Termination for Convenience. The Attorney General may terminate this Contract, or an Attorney

General may terminate an order placed under this Contract, for its convenience after issuing written notice to the Contractor.

b. Termination for Cause. If the Contractor fails to perform any of its obligations under this Contract or an order under this Contract, the Contractor will be in default, and the Attorney General may terminate this Contract or an order in accordance with this Section.

DD. TIME IS OF THE ESSENCE. Time is of the essence in these Terms and Conditions. The Contractor must deliver

Goods as required by the Contract or coordinate an acceptable date and time for delivery with the Attorney General. If the Contractor is not able to or does not provide the Goods to the Attorney General by the date and time set forth in the Terms and Conditions or agreed upon by the parties, the Attorney General may obtain any remedy at law.