Purchasing Standard Terms and Conditions - 01-2025.pdf

STANDARD TERMS & CONDITIONS

Rev. 01/2025 1

I. GLOSSARY

The following definitions are applicable to all components of the Contract. If a conflict exists between these definitions and any definition listed in the specifications or scope of work, the specifications or scope shall prevail.

A. ACCEPTANCE: Approval and retention by ODOT of any products, supplies, services or other Deliverables, delivered to fulfill Contract requirements.

B. AUTHORIZED DEALER/DISTRIBUTOR: The vendor that maintains written legal agreements with manufacturers to act as their agent and provide equipment, products, supplies, or services listed in the RFQ.

The authorized Dealer/Distributor must maintain active and sufficient facilities necessary to perform the Contract, own title to the equipment, products, supplies, or services and maintain available stock on a continuous basis and in sufficient quantity to provide uninterrupted access to the Contract Deliverable.

C. DEFAULT: The omission or failure to perform any obligation under this Contract.

D. DELIVERABLE: Any Contractor-provided products, supplies, services, work or product described in the specifications of the Contract.

E. EQUIPMENT: Items, implements and machinery with a predetermined and considerable usage life.

F. INVOICE: An itemized listing that documents delivery of the commodity or performance of the service described in the order, and the date of the purchase or rendering of the service, or an itemization of the things done, material supplied, or labor furnished, and the sum due pursuant to the contract or obligation.

G. MBE OR EDGE CERTIFIED: MBE means Minority Business Enterprise and EDGE means Encouraging Diversity, Growth and Equity.

H. ODOT OR DEPARTMENT: Ohio Department of Transportation

I. ORDER: A copy of a contract or a statement of the nature of a contemplated expenditure, a description of the property or supplies to be purchased or service to be performed, other than a service performed by officers and regular employees of the state, and per diem of the national guard, and the total sum of the expenditure to be made therefor, if the sum is fixed and ascertained, otherwise the estimated sum thereof, and an authorization to pay for the contemplated expenditure, signed by the person instructed and authorized to pay upon receipt of a proper invoice.

J. PRIME VENDOR: The vendor who, upon being awarded a contract, becomes the prime vendor who is the primary source for providing the goods or services listed in the awarded Contract and the party to whom payment will be made upon delivery of the goods and/or completion of the Contract.

K. PURCHASE: To buy, purchase, installment purchase, rent, lease, lease purchase, or otherwise acquire equipment, products, supplies, or services. "Purchase" also includes all functions that pertain to the obtaining of equipment, materials, supplies, or services, including description of requirements, selection, and solicitation of sources, preparation, and award of contracts, and all phases of contract administration.

L. PRODUCTS: Materials, supplies, merchandise, goods, wares, and foodstuffs.

M. REQUEST FOR QUOTE (RFQ): A solicitation for equipment, products, supplies, or services in which ODOT invites vendors to submit price quotes for the supply of such equipment, products, supplies, or services.

N. SERVICES: The furnishing of labor, time, or effort by a person, not involving the delivery of a specific end product other than a report which, if provided, is merely incidental to the required performance. "Services" does not include services furnished pursuant to employment agreements or collective bargaining agreements.

O. STATE: The State of Ohio which also includes ODOT as applicable.

P. STATE DATA: All data and information provided by, created by, created for, or related to the activities of the State and any information from, to, or related to all persons that conduct business or personal activities with the State, including, but not limited to Sensitive Data. Sensitive Data means any type of data that presents a high or moderate degree of risk if released, disclosed, modified or deleted or disclosed without authorization.

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Sensitive Data includes, but is not limited to:

1. Certain types of personally identifiable information (PII) that is also sensitive, such as medical information, social security numbers, and financial account numbers;

2. Federal Tax Information (FTI) under IRS Publication 1075;

3. Protected Health Information (PHI) under the Health Insurance Portability and Accountability Act (HIPAA);

4. Criminal Justice Information (CJI) under the Federal Bureau of Investigation’s Criminal Justice Information

Services (CJIS) Security Policy and the Law Enforcement Automated Data System (LEADS) Policy; and

5. Other types of information not associated with an individual such as security and infrastructure records, trade secrets, and business bank account information.

Q. SPECIFICATION: Any description of the physical or functional characteristics or of the nature of equipment, products, supplies, or services. It may include a description of any requirements for inspecting, testing, or preparing equipment, products, supplies, or services.

R. SUPPLIES: All property, including but not limited to, equipment, materials, and other tangible assets, but excluding real property or an interest in real property.

S. TIME AND MATERIALS CONTRACT: A contract in which Contractor is paid the following: (1) an hourly rate for labor actually performed; and (2) if applicable and with prior approval by ODOT, for the cost of the materials or supplies actually used by the Contractor. Such rates and costs shall be established through Contractor’s submission of a price sheet, written quote, estimate, or invoice, as approved by ODOT. Hourly rates may include wages, overhead, general and administrative expenses, and reasonable profit. Materials or supplies may include the Contractor’s direct and indirect costs attributable to the work performed.

T. SUBVENDOR: An individual, firm, or corporation to whom the Vendor sublets part of the contract to be performed.

U. VENDOR: The company and/or authorized representative of the company who has signed and is submitting the signed RFQ response and who will be responsible for ensuring performance of the awarded Contract.

II. QUOTE REQUIREMENTS

A. INFORMATION REQUESTED: Vendors shall furnish all information as requested in the RFQ. At the discretion of the Director, additional information, necessary for evaluation of the quote may be attached to the RFQ and shall be properly identified as being part of the quote. ODOT reserves the right to request literature, or other documentation for clarification, although such may not have been set forth in the RFQ. ODOT also reserves the right to require a Vendor to be a registered supplier with the State of Ohio through the OhioPays Portal prior to a contract being awarded. Failure to provide the required information or complete supplier registration with the State of Ohio within seven business days of the award may render the quote invalid.

B. SAMPLES REQUESTED: When requested, samples shall be furnished at the Vendors’ expense and unless otherwise specified, prior to closing of the RFQs. Samples shall be clearly identified by Vendor’s name, the RFQ number, corresponding items in the RFQ and the closing date. ODOT acknowledges that it may receive quotes from multiple vendors and authorized dealers/distributors quoting the same manufacturer's products.

In such situations, samples may be submitted by manufacturers on behalf of multiple vendors or authorized dealers/distributors, provided that such samples shall be accompanied by written documentation, on manufacturer's letterhead, signed by an authorized representative of manufacturer, listing the named dealers/distributors and vendors for whom the samples are provided. Any vendor or authorized dealer/distributor not appearing on this listing and who has failed to furnish requested samples shall be considered non-responsive. Unless otherwise stated, any sample submitted with the quote shall not be deemed to vary from any of the provisions, specifications, or terms and conditions of the RFQ. When requested in writing, samples not destroyed in testing shall be returned at the vendor’s expense. Samples not so requested shall become the property of ODOT. Unsolicited samples which are submitted shall be at the vendor's risk and, shall not be examined or tested, and shall not be considered in the evaluation process.

ODOT reserves the right to request samples although such may not have been set forth in the RFQ.

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C. SPECIFICATIONS: ODOT is authorized to prepare specifications to obtain supplies and services. The purpose of the specification is to describe the supplies or services to be purchased and will serve as a basis for comparison of quotes. The Department may use any form of specification it determines to be in the best interest of the State and that best describes the supplies or services to be purchased. Specifications may be in the form of a design or performance specification, or a combination thereof. If the Department determines that a design, performance, or combination specification is not in the best interest of the State, it may use brand name or equal specifications.

Where a brand name or equal specification is used, use of brand name is for the purpose of describing the base standard of quality, performance and characteristics desired only and is not intended to limit or restrict competition. Substantially equivalent supplies or services to those designated will be considered for award.

ODOT may also use a qualified products list of the federal government or may develop a qualified products list applicable to ODOT. When developing a qualified products list, ODOT shall solicit a sufficient number of suppliers to ensure maximum coverage with providers of the supplies or services. Any supplier, not solicited, may request inclusion on the qualified products list. Potential suppliers will be required to furnish exact samples of the supplies or services to be provided for testing and examination by ODOT. Only those supplies or services that conform to the ODOT’s requirements will be considered for inclusion on a qualified products list.

D. UNIT PRICE GOVERNS: The unit price governs the award unless otherwise specified in the RFQ. The unit price must be entered for each item being quoted. Use of ditto marks, arrows, or other markings in lieu of the actual unit price may be deemed non-responsive. Lot prices listed in the unit price area shall be considered as the unit price unless clearly identified as the lot price. Any request to change or alter the price after closing of the quote shall not be allowed. Vendors should review their pricing carefully, as once a contract is awarded, the Vendor shall be required to deliver the goods or services at the prices quoted. Vendors shall not insert a unit cost of more than two (2) digits to the right of the decimal point. Digit(s) beyond two (2) will be dropped and not used for rounding purposes in the evaluation of the quote or payment thereof.

E. QUOTE FIRM: Once opened, all RFQs are firm and cannot be altered. Once a contract is awarded, the Vendor shall deliver at the prices and terms quoted. ODOT shall receive the benefit of any decrease in price during the guaranteed price period. Unless otherwise stated, all RFQs shall remain valid for a period of sixty (60) calendar days after the RFQ closing date.

F. REJECTION OF ANY/ALL RFQ: The Director of ODOT reserves the right to accept, or reject, any or all RFQs in whole or in part and may determine that any irregularities or deviations from the specifications do not result in the quote being non-responsive, provided however, that the Director of ODOT determines this does not affect the amount of the quote or result in a competitive advantage to the Vendor.

G. DEVIATIONS: Statements or modifications that deviate from the RFQ’s terms, conditions, specifications and requirements (such as altering delivery, changing F.O.B., price list changes, etc.) may render the quote non-responsive if the Director determines that the deviation or modification affects the amount of the quote or results in an unfair competitive advantage for the Vendor.

H. DISQUALIFICATION OF VENDOR: Any of the following reasons may be considered as being sufficient for the disqualification of a Vendor and the rejection of its quote:

1. More than one RFQ for the same work from a parent and subsidiary company, from two or more related subsidiary companies, or an individual, firm, or corporation under the same or different name.

2. Evidence of collusion among Vendors.

3. Quote which are in ODOT's opinion materially unbalanced.

4. Evidence that the Vendor has sublet or sub-vended any portion of the work, supplies, services, labor, or materials without prior written approval from the Department.

5. Evidence that the Vendor is not an authorized dealer/distributor of the manufacturer.

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The quote supplied by a disqualified Vendor shall be rejected, and the disqualification determination will be used to evaluate the responsibility of the Vendor in future RFQs.

I. TIE PROCESS: If two or more quotes offer the same unit price and are determined to be responsive and responsible, the Department will break the tie as follows: during the evaluation process, the Vendors that submitted tie quote will be contacted and given a deadline of two (2) business days to submit a written revised unit price for the affected item or items. If a tie still exists, the Department may repeat this process or look at past or current performance in order to secure the item or items. ODOT will not allow a tie quote situation to otherwise unnecessarily delay a potential award.

J. CREATION OF THE CONTRACT: A contract is created between the Vendor and ODOT when ODOT accepts the quote and an authorized person acknowledges the acceptance in writing. The contract shall become operational only when either a purchase order has been issued or the State of Ohio payment card is presented to the awarded Vendor. The contract shall contain all the terms and conditions of this RFQ as well as the accepted responses in the vendor’s quote, except that no responses may change or alter the terms and conditions of this RFQ. The contract will be construed in accordance with the plain meaning of its language and neither for nor against the drafting party.

III. REGULATORY CONTRACT REQUIREMENTS

A. ANTITRUST. ODOT and the Contractor recognize that, in actual economic practice, overcharges resulting from antitrust violations are usually borne by the State. The Contractor therefore assigns to ODOT 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. ODOT’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 ODOT under this Contract, ODOT will be released from its obligations on the date funding expires. If appropriations are approved, ODOT may continue this Contract past the current biennium by issuing written notice of continuation to the Contractor. Any obligations of ODOT are subject to Section 126.07 of the Ohio Revised Code.

C. CAMPAIGN CONTRIBUTIONS. Unless this Contract was solicited by competitive bid pursuant to Section

125.07 of the Ohio Revised Code, 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. DRUG FREE WORKPLACE. The Contractor agrees to comply with all applicable state and federal laws regarding drug-free workplace and shall make a good faith effort to ensure that all Contractor employees, while working on ODOT property or performing work on behalf of ODOT, will not purchase, transfer, use, be under the influence of, or possess illegal drugs, non-medical cannabis (recreational marijuana), or alcohol, or abuse prescription drugs or medical marijuana in any way.

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I. 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.

Before a contract can be awarded or renewed, an Affirmative Action Plan must be submitted to and approved by the State of Ohio.

J. PROHIBITION OF THE EXPENDITURE OF PUBLIC FUNDS FOR OFFSHORE SERVICES. No State Cabinet Agency, Board or Commission will enter into any contract to purchase services provided outside of the United States or that allows State Data to be sent, taken, accessed, tested, maintained, backed-up, stored, or made available remotely outside (located) of the United States, unless a duly signed waiver from the State has been attained. Notwithstanding any other terms of this Contract, the State reserves the right to recover any funds paid for services the Contractor performs outside of the United States for which it did not receive a waiver. The State does not waive any other rights and remedies provided to the State in the Contract.

Further, no State agency, board, commission, State educational institution, or pension fund will make any purchase from or investment in any Russian institution or company. Notwithstanding any other terms of this Contract, the State reserves the right to recover any funds paid to Contractor for purchases or investments in a Russian institution or company in violation of this paragraph. The provisions of this paragraph will expire when the applicable Executive Order is no longer effective.

The Contractor must complete the Contractor/Subcontractor Affirmation and Disclosure Form affirming the Contractor understands and will meet the requirements of the above prohibition. During the performance of this Contract, if the Contractor changes the location(s) disclosed on the Affirmation and Disclosure Form, Contractor must complete and submit a revised Affirmation and Disclosure Form reflecting such changes.

K. 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.

L. 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 State. Contractor declares that it is engaged as an independent business and has complied with all applicable federal, state, 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, state, 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 State 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 Ordering Agency 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.

M. REGISTRATION WITH THE SECRETARY OF STATE. Contractor certifies that it is one of the following:

1. A company that is properly registered with the Ohio Secretary of State; or

2. A foreign corporation, not incorporated under the laws of the State of Ohio, but is registered with the Ohio

Secretary of State pursuant to Sections 1703.01 to 1703.31 of the Ohio Revised Code, as applicable; or

3. Exempt from the registration requirements of the Ohio Secretary of State.

https://dam.assets.ohio.gov/image/upload/procure.ohio.gov/pdf/StateLocalAgencies/Resources_Forms/Affirmation_and_Disclosure_Form_5-20-24_fillable_form.pdf http://www.opers.org/forms-archive/PEDACKN-Non-Member-Acknowledgment.pdf

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N. TAXES. Pursuant to Section 5739.02 of the Ohio Revised Code, ODOT is exempt from sales tax. Pursuant to

Section 5741.02(C) of the Ohio Revised Code, the State is exempt from use tax.

O. 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 State of Ohio 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.

P. USE OF MBE AND EDGE VENDORS. Section 125.081 of the Ohio Revised Code requires State agencies to set-aside purchases for Minority Business Enterprises (MBE) and Executive Order 2008-13S encourages use of Encouraging Diversity, Growth and Equity (EDGE) businesses. Therefore, the State encourages the Contractor to purchase goods and services from Ohio certified MBE and EDGE vendors.

Q. 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 ODOT. 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 State or provide for a third party to have sole control of a defense or settlement of a claim do not meet the requirements of state law and are considered stricken. Contractor also agrees that, unless specifically agreed to in writing by ODOT, 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 state law and are considered stricken.

R. STATUTE OF LIMITATIONS. Statutes of limitations generally do not apply to actions brought by the State of Ohio and any such provisions in this Contract or in any documents incorporated by reference are considered stricken.

IV. CONTRACT CONSTRUCTION

A. TERM OF CONTRACT. The effective date of the Contract is the effective date stated in the Contract or the date the Contract is fully executed, whichever is later. The Contract will remain in effect until the earliest of:

(1) the ending date stated in the Contract; (2) the Contract is fully performed by both parties; (3) the Contract is canceled or terminated; or (4) the Contract expires at the end of a biennium unless continued by ODOT.

Notwithstanding the foregoing, the expiration or early termination of this Contract will not limit the Contractor’s continuing obligations with respect to Deliverables that the State paid for or ordered before the expiration or termination, or limit ODOT’s rights in such, including any warranty services, licensed material, paid subscriptions, the support or maintenance thereof, or other services.

This Contract may be renewed upon satisfactory performance of activities hereunder, appropriation of funds by the Ohio General Assembly, and at the sole discretion of ODOT. ODOT will issue a notice to the Contractor if ODOT decides to renew this Contract. The Contractor shall not obligate resources in anticipation of a renewal until notice is provided.

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

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B. CONTRACT AMENDMENTS / WAIVER.

1. 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, ODOT 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 ODOT, no terms or conditions included on a Contractor’s quote or ordering document will be valid or enforceable against ODOT 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 ODOT, 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 ODOT employee has the authority to modify, amend, or supplement this Contract through electronic means.

2. WAIVER. The failure of either party at any time to demand strict performance by the other party of any of the terms of this Contract will not be a waiver of those terms or to any other terms of this Contract. Waivers must be in writing to be effective, and either party may at any later time demand strict performance.

C. ASSIGNMENT / DELEGATION. The Contractor must not assign any of its rights nor delegate any of its duties under this Contract without written consent of ODOT. Any assignment or delegation not consented to may be deemed void by ODOT.

D. BINDING EFFECT. Subject to the limitations on assignment provided elsewhere in this Contract, this Contract will be binding upon and inure to the benefit of the respective successors and assigns of ODOT and the Contractor.

E. LANGUAGE CONSTRUCTION. This Contract will be construed in accordance with the plain meaning of its language and neither for nor against the drafting party.

F. DAYS. When this Contract refers to days, it means calendar days, unless it expressly provides otherwise.

G. HEADINGS. The headings in this Contract are for convenience only and will not affect the interpretation of any of the Contract terms and conditions.

H. INJUNCTIVE RELIEF. Nothing in this Contract is intended to limit the State’s right to injunctive relief if such is necessary to protect its interests or to keep it whole.

I. 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.

J. 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.

K. PUBLICITY. The Contractor shall not do the following without prior, written consent from ODOT:

1. Advertise that the Contractor is doing business with ODOT;

2. Use this Contract as a marketing or sales tool; or

3. Affix any advertisement or endorsement, including any logo, graphic, text, sound, video, and company name, to any State-owned property, application, or website, including any website hosted by Contractor or a third party.

L. 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.

M. SUBCONTRACTING. ODOT 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 Contractor may not enter into subcontracts related to the Contract after award without written approval from ODOT. If any change occurs during the term of the Contract, that requires a change to identified subcontractors, the Contractor shall amend its list of subcontractors and request written approval from ODOT. ODOT reserves the right to reject any subcontractor submitted by the Contractor.

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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.

N. SURVIVORSHIP. All sections herein relating to payment, confidentiality, license and ownership, indemnification, maintenance, publicity, warranties and limitations on damages shall survive the termination of this Contract. In addition, to the extent necessary to carry out the purpose of this Contract, all other terms, conditions, representations or warranties contained in this Contract will survive the expiration or termination of this Contract.

O. COUNTERPARTS. This Contract may be executed simultaneously in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

V. ORDER AND PAYMENT PROVISIONS

A. CERTIFICATION OF FUNDS/PURCHASE ORDER REQUIREMENTS. None of the duties or obligations in this Contract are binding on the State, and the Contractor will not begin performance on this Contract, until 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 ODOT.

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 by ODOT, which is certification that the above requirements have been met.

B. CONTRACT ORDERS. ODOT will order supplies or services under this Contract from the Contractor and the Contractor may receive orders by telephone, electronically, in person, payment card (if applicable) or purchase order from authorized employees of ODOT. ODOT will not be responsible for orders placed by unauthorized employees. The Contractor must ensure that any entity placing an order under this Contract has the authority to do so. If Contractor accepts an order from an entity that does not have the authority to make a purchase under this Contract, Contractor will be in breach of this Contract and the order will not be valid under this Contract.

If Contractor’s quote or ordering document contains or incorporates by reference any terms or conditions other than a description of the goods or scope of services and the prices for those goods and/or services, those terms or conditions are excluded from this Contract and are of no effect.

C. INVOICE REQUIREMENTS. The Contractor or dealer, authorized to submit invoices, must submit an invoice to the office designated in the purchase order. The Contractor will only be compensated for the Deliverables accepted by the State. To be a proper invoice, the invoice must include the following:

1. The purchase order number authorizing the delivery of supplies or services;

2. State of Ohio Contract Number (if applicable);

3. Agency Name;

4. Agency Billing Address;

5. Delivery location of supplies or services;

6. Contractor Name;

7. Contractor Address;

8. Contractor’s Unique Invoice Number;

9. Date that services were provided or that supplies were delivered;

10. Itemization of supplies or services provided, including cost;

11. For leases, the invoice must also include the payment number (e.g., 1 of 36);

12. For Time and Materials Contracts, the invoice must reflect labor hours actually worked and, if applicable, supplies used; and

13. Clear statement of total payment expected.

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D. PAYMENT DUE DATE AND PROCESS. Unless otherwise stated in this Contract and in accordance with Section 126.30 of the Ohio Revised Code, payments under this Contract will be due on the 30th calendar day after the date of actual receipt of a proper invoice in the office designated to receive the invoice. The date payment is issued by ODOT will be considered the date payment is made. Payment of an invoice by ODOT will not prejudice ODOT’s right to object to or question that or any other invoice or matter in relation thereto.

ODOT’s preferred method of payment is by electronic funds transfer. However, ODOT may also make payment by State of Ohio payment card or by warrant issued by the Office of Budget and Management. At the time of Contract award, Contractor must be able to accept all forms of payment from ODOT.

E. REIMBURSABLE EXPENSES. ODOT will not pay reimbursable expenses unless specifically identified in the

Contract. The Contractor will assume all expenses that it incurs in the performance of this Contract that are not identified as reimbursable.

F. TRAVEL. Any travel that the Contractor requires to perform its obligations under this Contract will be at the

Contractor’s expense. ODOT will pay for any additional travel that it requests only with prior written approval.

ODOT will pay for all additional travel expenses that it requests in accordance with Section

126.31 of the Ohio Revised Code and Rule 126-1-02 of the Ohio Administrative Code.

VI. LIABILITY PROVISIONS

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

1. The recommendations, guidance, and performance of the Contractor under this Contract will be in accordance with the industry’s professional standards, the requirements of this Contract and without any material defect.

2. No Deliverable will infringe on the intellectual property rights of any third party.

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

4. The Deliverables are merchantable and fit for the particular purpose described in this Contract and will perform substantially in accordance with its user manuals, technical materials, and related writings.

5. The Deliverables comply with all governmental, environmental and safety standards.

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

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

Contractor’s ability to perform under this Contract.

8. The Contractor will observe and abide by all applicable laws and regulations, including those of the State regarding conduct on any premises under ODOT’s control.

9. The Contractor has good and marketable title to any Deliverable delivered under this Contract for which title passes to ODOT.

10. The Contractor has the right and ability to grant the license granted in any Deliverable for which title does not pass to ODOT.

11. The Contractor warrants that the Contractor has not and will not enter into any contracts without written approval of ODOT to perform substantially identical services for ODOT such that the Project duplicates the work done or to be done under the other contracts.

12. 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 ODOT in writing immediately upon the discovery of any breach of the warranties given above, or if any work of the Contractor or any Deliverable 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 Deliverable. The Contractor will also indemnify ODOT 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.

B. INDEMNITY. The Contractor must indemnify ODOT 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 ODOT, its employees, other contractors, or agents.

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Contractor must indemnify ODOT for all liability and expense resulting from the unauthorized disclosure or loss of State Data. Damages resulting from the unauthorized disclosure or loss of State Data shall be considered direct damages under this Contract and include, but are not limited to, the following: (i) expenses for legally-required notification of impacted individuals; (ii) responding to inquiries from such notifications; (iii) government fines and penalties assessed against the State; (iv) costs to the State for investigations, audits or forensic services as applicable related to the disclosure or loss; (v) mitigation measures, including 12 months of credit monitoring and identity theft protection for individuals impacted by a disclosure; (vi) costs to the State to reconstruct data that was lost or to repair any damaged State information technology infrastructure; and

(vii) other such expenses incurred by the State as a result of the unauthorized disclosure or loss of State Data.

Regardless of any limitation on liability of any kind in this Contract, the Contractor will be responsible for acquiring one year’s identity theft protection services on behalf of any individual or entity whose personally identifiable information is compromised while it is in the Contractor’s possession. Contractor’s indemnification obligations under this paragraph apply whether the expenses or costs incurred by the State are performed by State employees or hired contractors. Contractor must also work with the State to directly notify impacted individuals or persons as required by Ohio Revised Code Chapter 1349.

The Contractor must also indemnify, release, protect, and hold ODOT harmless from any claim of infringement of a copyright, patent, trade secret, or similar intellectual property right based on ODOT’s proper use of any Deliverable under this Contract. This obligation of indemnification will not apply where ODOT has modified or misused the Deliverable 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 Deliverable so that the Deliverable is no longer infringing;

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

3. Acquire the right for the State to use the infringing Deliverable as intended; or

4. Remove the infringing Deliverable and refund the fee the State paid for such Deliverable and any other affected Deliverable.

The State agrees to give the Contractor notice of any such claim as soon as reasonably practicable 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.

C. 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. 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. ODOT, 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.

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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 State 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 ODOT. 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 State shall not contribute to claims made due to the Contractor’s negligence, errors, or omissions. No subrogation demands shall be made against ODOT, except where there is negligence on the part of the State, 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 ODOT 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 ODOT 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 ODOT’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 ODOT. ODOT 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 ODOT 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 ODOT 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. ODOT 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 ODOT is an additional insured on commercial general liability insurance required from subcontractors. Contractor will indemnify the State for damages that exceed a subcontractor’s policy limits.

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

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D. 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…