RFP_No.S-10700-00017778_Attachment_A_Sample_Price_Agreement.pdf

ATTACHMENT A

State of Oregon Price Agreement No. PO-10700-000 “XXXXX”

With

[Contractor Name] to provide the following:

Supply of Vehicles, Related Goods and Services

Price Agreement No. “XXXX” (“Price Agreement”) is created as a result of a qualifying and acceptable submission to Solicitation No. S-10700-00017778 and between the State of Oregon (the “State”), acting by and through its Department of Administrative Services – State Procurement Services (“SPS”), on behalf of all Oregon state agencies and ORCPP members (“Authorized Purchaser”) and [Contractor’s name], a [State of Incorporation] Corporation (“Contractor”).

Section 1 –Agreement

1.1 Parties

1.1.1 The only parties to this Price Agreement are SPS and Contractor.

1.1.2 Authorized Purchasers may purchase Goods and Services specified in Exhibit C by issuing ordering instruments creating separate contracts (“Contracts”). The only parties to each of these Contracts are the Authorized Purchaser and Contractor. SPS is an intended beneficiary of each Contract.

1.2 Process

1.2.1 AUTHORIZED PURCHASERS may order Goods or Services during the Term of this Price Agreement using any of the following ordering instruments:

1. SPS-approved Purchase Order form. See Sample as Exhibit A to this Price Agreement.

2. Authorized Purchaser’s standard form

3. State P-card of Oregon Transaction System [“SPOTS”] Card

Each ordering instrument must specify, at a minimum, the following details:

1. Price Agreement No. “XXXX”.

2. The specific Goods or Services and quantity of each item ordered.

3. The net price.

4. The requested delivery schedule.

5. The delivery location(s).

6. The invoicing address.

7. Authorized Purchaser’s authorized representative and relevant contact information including e-mail address.

1.2.2 A Contract created by an ordering instrument consists only of the terms specified or required in this Price Agreement. Additionally, different or conflicting terms and conditions in any ordering instrument or other form used by an Authorized Purchaser or Contractor may not vary the terms of a Price Agreement. Additional, different or conflicting terms and conditions on a purchase order or other form are of no effect.

1.2.3 Authorized Purchaser(s) who are State of Oregon agencies may issue Purchase Orders for any value under this Price Agreement.

1.2.4 Contractor shall accept ordering instruments from AUTHORIZED PURCHASERS complying with the provisions of this Price Agreement until the termination or expiration of this Price Agreement.

1.2.5 An ordering instrument deemed accepted by Contractor unless Contractor rejects the ordering instrument within two (2) business days after received. Contractor may reject an ordering instrument: i) using the same means used to deliver the ordering instrument, or ii) by e-mail, provided the email address is evident on the ordering instrument. Contractor shall specify the reason(s) for rejection.

1.2.6 Accepted ordering instruments establish separate Contracts between AUTHORIZED

PURCHASERS and Contractor and include the terms set forth in Sections 2 and 3. When used in Contracts, “Price Agreement” means specifically Price Agreement No. “XXXX”.

1.2.7 SPS is not obligated or liable under any Contract unless SPS is acting as the

Authorized Purchaser of the Goods or Services.

1.2.8 Nothing in this Price Agreement obligates SPS or AUTHORIZED PURCHASERS to purchase any Goods or Services at any time during the Term of this Price Agreement.

1.2.9 Contractor shall reject an ordering instrument from any entity not identified as an Authorized

Purchaser under this Price Agreement unless an amendment executed prior to the order allowing such entity to purchase materials specifically listed in this Price Agreement.

1.2.10 Contractor shall reject any ordering instrument not meeting the requirements of this Price

Agreement.

1.2.11 SPS reserves the right to add locations to this Price Agreement as they become available by an agency of the State of Oregon.

1.3 Pricing

1.3.1 During the Term of this Agreement, Contractor shall offer Goods to Authorized Purchasers at prices that do not exceed the prices listed in Exhibit C – Contractor Pricing .

1.3.2 Contractor understands and agrees the prices listed for each County are Not-to-Exceed (“NTE”) prices but may negotiate lower prices with an Authorized Purchaser for a specific location within each County. In such cases, the negotiated lower prices only apply to Contracts between Contractor and such Authorized Purchaser.

1.3.3 Contractor shall subtract from prices charged to Authorized Purchasers any unit price decrease achieved or gained by Contractor whether through the manufacturer or otherwise. Contractor shall give Authorized Purchasers the immediate benefit of the decrease. Contractor shall promptly notify the SPS Contract Administrator of the amount and effective date of the decrease.

1.3.4 Either party to this Price Agreement may request a price adjustment for some or all the Goods, subject to the restrictions specified below. Contractor may request unit price increases no more than once in any 12-month period, provided no such requests are made prior to October 1, 2026.

Contractor must submit a request to the Contract Administrator in writing at least 60 days prior to the proposed effective date of the increase. The request must show all proposed increases by line item and include, at a minimum, support documentation from the U.S. Bureau of Labor Statistics Producer Price Index and/or Consumer Price Index and documented increases in costs to Contractor. Other relevant manufacturers or industry data substantiating the increase is encouraged and accepted for consideration. SPS reserves the right in its sole discretion to determine whether to agree to a price increase. SPS reserves the right to require additional documentation or independently verify the basis and validity of any proposed price increase utilizing its internal price review and analysis protocols. SPS may accept or reject the requested increase or offer some lesser amount.

In addition, Contractor may request a price adjustment for some or all the Goods in connection with each extension of the Price Agreement pursuant to Section 1.5. Any such adjustment must have support documentation from the U.S. Bureau of Labor Statistics Producer Price Index and/or Consumer Price Index and documented increases in costs to Contractor. SPS reserves the right in its sole discretion to determine whether to agree to a price increase for an extension period. SPS reserves the right to require additional documentation or independently verify the basis and validity of any proposed price increase utilizing its internal price review and analysis protocols. SPS may accept or reject the requested increase or offer some lesser amount. In the event SPS offers some compromise amount or rejects the requested price increase, Contractor may elect to agree to the proposed extension period under those conditions or allow the Price Agreement to expire. However, Contractor has no right to receive, or claim for failure to receive, a price increase for any extension period.

Notwithstanding the foregoing, no more than one price increase will be allowed during any twelve-month period within the Term of the Price Agreement or extension period. Accordingly, if there has been a price adjustment during the 12-month period preceding the commencement of an extension period, any price adjustment agreed to for such extension period shall not take effect until a period of 12 months from the effective date of such prior adjustment has elapsed.

1.4 Contractor Reporting and Payment Requirements

Contractor is required to submit to SPS quarterly, volume sales reports (“VSR”) based on generated sales through this price agreement. Contractor must pay an administrative fee on each vehicle sold. Fee is calculated using one of two methods, depending on the dollar value of the vehicle sold. Vehicle sell prices of $39,999.99 or less are subject to one percent ( 1%) of the value amount. Vehicle sell prices of $40,000.00 or more are subject to a flat fee of $ 400.00. SPS fully expects to absorb these costs and therefore requires the contractor to ADD the appropriate amount to each vehicle’s net price offer.

They should be included in the price of the delivered vehicle and NOT shown as a separate line item on any given invoice.

1.5 Term of Agreement; Termination

1.5.1 The initial Term of this Price Agreement begins on the latest date signed by all required parties and becomes the Effective Date. Price agreement terminates on the 3rd anniversary of the Effective Date unless it is terminated sooner or extended. Extension increments, if exercised, will be in increments decided 60 days or more before the current term of the agreement expires.

Each price agreement, including extensions, will have a maximum term of 7 years.

1.5.2 Upon termination or expiration of this Price Agreement, Contractor shall not accept new ordering instruments.

1.5.3 Termination of this Price Agreement also terminates any outstanding ordering instrument under which an Authorized Purchaser and Contractor agreed to have Contractor deliver specific quantities of Goods or Services on a pre-determined, future date or schedule. The intent is to terminate Blanket Purchase Order(s) or “BPOs”, if any exist at time of termination.

1.5.4 Except as provided in Section 1.5.3, termination of this Price Agreement does not terminate any right or obligation of a party under a Contract or ordering instrument accepted by Contractor before termination of this Price Agreement.

1.5.5 Parties’ Right to Terminate for Mutual Consent. This Price Agreement allows termination any time by mutual written consent of SPS and Contractor.

1.5.6 SPS Right to Terminate. SPS may, in its sole discretion, terminate this Price Agreement, in whole or in part, for any reason upon 30 Calendar Days’ written notice to Contractor.

1.6 Insurance

Contractor must obtain and maintain all insurance specified in Exhibit B for the Term of this Price Agreement and through the full performance of all Contracts entered into under this Price Agreement.

1.7 Miscellaneous

1.7.1 Choice of Law. The laws of the State of Oregon (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to this Price Agreement, including, without limitation, its validity, interpretation, construction, performance, and enforcement.

1.7.2 Designation of Forum and Consent to Jurisdiction. A party bringing legal action or proceeding against the other arising out of or relating to this Price Agreement shall bring the legal action or proceeding in the Circuit Court of the State of Oregon for Marion County. Each party hereby consents to the exclusive jurisdiction of such court, waives any objection to venue, and waives any claim that such forum is an inconvenient forum.

1.7.3 Amendment(s). No amendment of this Price Agreement is valid unless it is in writing and signed by both SPS and Contractor.

1.7.4 Transfer. Contractor shall not assign, delegate or otherwise transfer any of its rights or obligations under this Price Agreement without first obtaining the written consent of SPS. SPS’ consent to any subcontract (or other delegation of duties) does not relieve Contractor of any of its duties or obligations under this Price Agreement. This Price Agreement is binding upon and inures to the benefit of each of the parties, and, except as otherwise, provided their permitted legal successors and assigns.

1.7.5 Counterparts. This Price Agreement may be executed in two or more counterparts, each of which is original, and all of which, together, deemed the same instrument, notwithstanding that the parties are not signatories to the same counterpart.

1.7.6 Force Majeure. Neither SPS nor Contractor will be held responsible for delay or default caused by fire, riot, acts of God, war, or any other cause not within the control of the party whose performance is interfered with, and which delay or default such party is unable to prevent by the exercise of reasonable diligence. SPS may terminate this Price Agreement upon written notice after determining whether such delay or default will reasonably prevent successful performance of this Price Agreement within a time acceptable to SPS.

In the event of any such delay, Contractor’s obligations shall be suspended to the extent and duration of the cause of the delay. However, Contractor shall make all reasonable efforts to eliminate the cause of any such delay, and upon the cessation of such cause, shall resume performance of Contractor’s obligations with all reasonable diligence. If necessary, the period for performance under this Price Agreement will be extended to enable Contractor to fulfill its obligations hereunder once such cause has been removed.

1.7.7 Entire Agreement. This Price Agreement, together with the attached exhibits, constitutes the entire agreement between the parties and merges all prior and contemporaneous communications with respect to the subject matter.

1.7.8 Notices. Except as otherwise expressly provided in this Price Agreement, any communications between the parties, or notices to be given under this Price Agreement, are effective only if given in writing by personal delivery, email or United States Postal Service, postage prepaid, to the Contract Administrator for Contractor or SPS at the address or number set forth below in Section 4, as applicable, or to such other addresses or numbers as either party may later indicate pursuant to this Section. Any communication or notice via the United States Postal Service is deemed given five (5) days after mailing. Any communication or notice by personal delivery is deemed given immediately upon such delivery. Any communication or notice by email is deemed given when the recipient, by an email sent to the email address for the sender or by a notice given by another method in accordance with this section, acknowledges having received that email, with an automatic “read receipt” not constituting acknowledgment of an email for purposes of this section.

1.7.9 No Third-Party Beneficiaries. SPS and Contractor are the only parties to this Price Agreement;

Authorized Purchasers are intended third party beneficiaries of this Agreement. SPS, Contractor, and Authorized Purchasers are the only parties entitled to enforce the terms of this Agreement. Nothing in this Agreement gives, is intended to give, or will be construed to give or provide, any benefit or right, whether directly, indirectly, or otherwise, to third persons, except Authorized Purchasers, unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Agreement.

1.7.10 Waiver. The failure of SPS to enforce any provision of this Price Agreement or the waiver of any violation or nonperformance of this Price Agreement in one instance does not constitute a waiver by SPS of that or any other provision nor is it a waiver of any subsequent violation or nonperformance. Such failure to enforce waiver, if made, is effective only in the specific instance and for the specific purpose given.

1.7.11 Certification of Compliance with Tax Laws. Contractor has complied with the tax laws of the State and the applicable tax laws of any political subdivision of the State. Contractor shall comply with all tax laws of the State and all applicable tax laws of any political subdivision of the State, for the term of this Price Agreement. For the purposes of this subsection, “tax laws” include: (i) all tax laws of the State, including but not limited to ORS 305.620 and ORS chapters 316, 317 and 318;

(ii) all tax provisions imposed by a political subdivision of the State that applied to Contractor, to Contractor’s property (whether tangible or intangible), operations, receipts, or income, or to Contractor’s performance of, or compensation for, any work performed by Contractor; (iii) all tax provisions imposed by a political subdivision of the State that applied to Goods or Services provided by Contractor; and (iv) all rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions.

Any failure to comply with the provisions of this subsection 1.7.11 constitutes a material default under this Price Agreement. Such default entitles SPS to terminate this Price Agreement and pursue and recover all damages arising from the default or termination of the Price Agreement, and to pursue any or all remedies available under this Price Agreement, at law, or in equity, including but not limited to:

• Termination of this Price Agreement, in whole or in part;

• Exercise of the right of setoff, and withholding of amounts otherwise due and owing to

Contractor, in an amount equal to State’s or Authorized Purchaser’s setoff right, without penalty; and

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

SPS may recover any, and all, damages suffered as the result of Contractor's default under this subsection or under any other provision of this Price Agreement, including but not limited to direct, indirect, incidental and consequential damages, costs of cure, and costs incurred in securing replacement Goods or Services.

1.7.12 Recycled Products: Contractor shall, to the maximum extent economically feasible in the performance of this Agreement, use recycled products where possible. This includes paper, “PETE” and other materials, as defined in ORS 279A.010 [1][gg], [hh] and [ii].

1.7.13 Records Archiving: Contractor shall retain, maintain and keep accessible all records relevant to the this Price Agreement (the “Records”) for a minimum of six (6) years, or such longer period as may be required by applicable law following termination of the Price Agreement, or until the conclusion of any audit, controversy or litigation arising out of or related to the Price Agreement and any Contract, whichever date is later. Financial Records must be kept in accordance with Generally Accepted Accounting Principles (GAAP). During the record-retention period established in this section, Contractor shall permit SPS and the State of Oregon and their duly authorized representatives, and the federal government access to the Records at a reasonable time and place for purposes of examination and copying.

1.7.14 Performance Evaluations: SPS may conduct evaluations of Contractor’s performance during the

Term of this Price Agreement. SPS will compile and maintain completed evaluations, which will become a written record of Contractor’s performance. SPS may also maintain as part of that written record information obtained from Contractor during an exit interview following Price

Agreement termination. SPS may provide copies of any documents in the written record to Contractor and third parties upon request. SPS may use performance evaluations in any way it deems necessary, in its sole discretion, including but not limited to making responsibility determinations and decisions to award contracts.

1.7.15 Reporting. This Price Agreement and Contract(s) with AUTHORIZED PURCHASERS who are state agencies will be reported to the Oregon Department of Revenue. The Department of Revenue may take any and all actions permitted by law relative to the collection of taxes due to the State of Oregon or a political subdivision, including (i) garnishing Contractor’s compensation under this Price Agreement or a Contract and (ii) exercising a right of setoff against Contractor’s compensation under a Contract for any amounts that may be due and unpaid to the State of Oregon or its political subdivisions for which the Department of Revenue collects debts.

1.7.16 Pay Equity Compliance: If selected for award, Bidder shall submit to SPS a true and correct copy of an unexpired Pay Equity Compliance Certificate issued to the Bidder by the Oregon Department of Administrative Services.

For more information on Pay Equity Certification, visit https://www.oregon.gov/das/Procurement/Pages/PayEquity.aspx

1.7.17 Survival: All rights and obligations cease upon termination or expiration of this Price

Agreement, except for the rights and obligations and declarations which expressly or by their nature survive termination of this Price Agreement, including without limitation this Section 1.7.17, and provisions regarding warranties and liabilities, independent Contractor status and taxes and withholding, compensation, Contractor’s representations and warranties, control of defense and settlement, remedies, dispute resolution, order of precedence, maintenance and access to records, notices, severability, successors and assigns, third party beneficiaries, waiver, headings, and integration.

Section 2 – Standard Terms for Contracts under this Price Agreement

2.1 Contract Documents and Order of Precedence: The Contract consists of the ordering instrument and the provisions in Sections 2 and 3 of the Price Agreement. In the event of a conflict between the ordering instrument and provisions in Sections 2 and 3, the provisions in Sections 2 and 3 take precedence.

2.2 Payment: Authorized Purchaser is solely responsible for payment under this Contract.

Contractor shall look solely to Authorized Purchaser for payment of all amounts due under this Contract. Subject to Authorized Purchaser’s acceptance of Goods or Services, payment is due from Authorized Purchaser within 45 calendar days after the date of the invoice.

2.3 Overdue Charges: At Contractor’s option, it may assess overdue account charges to Authorized Purchaser up to a maximum rate of two-thirds of one percent per month (8% per annum).

2.4 Late Delivery: If Goods are not delivered within the terms and time frame cited in the Contract, substitute comparable products may be purchased by the Authorized Purchaser from another source and the Contractor will be required to pay any additional costs incurred by the Authorized Purchaser in doing

so. Late or non-complying delivery may also result in termination of the Contract by the Authorized Purchaser.

https://www.oregon.gov/das/Procurement/Pages/PayEquity.aspx

2.5 Payment Address: Payments by Authorized Purchaser must be sent to the address specified on Contractor’s invoice.

2.6 Invoices: Contractor shall invoice Authorized Purchaser only after valid acceptance of Goods or Services has been confirmed in writing by Authorized Purchaser. Invoices must be sent to the address provided by Authorized Purchaser and must include, at a minimum, the following:

2.7 Prices: Contractor represents all prices for Goods and Services under this Contract are equal to or better than the prices listed in the Price Agreement.

2.8 Cancellation, Inspections and Acceptance: Authorized Purchaser may cancel an order as a whole or in part before the cancelled Goods or Services described in the order are delivered.

Authorized Purchaser has ten (10) calendar days from date of delivery of the entire order within which to inspect and accept or reject the Goods or Services. If Authorized Purchaser rejects the Goods or Services, Authorized Purchaser will provide Contractor with written notice of such rejection. Notice of rejection must include itemization of apparent defects, including but not limited to discrepancies between the Goods or Services and the applicable specifications or warranties (including variance from demonstrations or sample characteristics where demonstrations or samples have been provided), or otherwise nonconforming Goods or Services (including late delivery). If Authorized Purchaser elects to provide Contractor with an opportunity to cure the rejected Goods or Services, notice of rejection must also specify the period in which such cure must be completed.

Authorized Purchaser may elect to have Contractor deliver substitute conforming Goods or Services at no additional cost within 14 calendar days of Contractor’s receipt of notice of rejection or other acceptable timeline, if warranted, and agreed to by both parties.

If Goods or Services are rejected or the acceptance of such Goods or Services is revoked, Contractor shall refund any payments made regarding the rejected Goods or Services and shall, at Contractor’s sole cost and expense, remove the Goods or Services within seven (7) calendar days of Authorized Purchaser’s notice of rejection or revocation of acceptance.

Nothing contained in Section 2.8 precludes Authorized Purchaser from other remedies to which it may be entitled upon rejection, or revocation of acceptance, of Goods or Services.

2.9 Contractor’s Representations and Warranties:

• Employee Status: Contractor warrants that it and its personnel are not “officers,” “employees,” or “agents” of Authorized Purchaser, as those terms are used in ORS 30.265.

• Warranty on Materials, Design & Manufacture: Contractor represents and warrants that all Goods supplied are new, unused, of current production models and free from defects in materials, design and manufacture. Contractor further represents and warrants all Goods comply and meet or exceed all specifications listed in Exhibit C.

• Warranty on Service Standards: Contractor warrants that all Services shall be performed in a good, workman-like manner in accordance with highest standards prevalent in the industry.

• Warranty of Title: Contractor represents and warrants all Goods are free and clear of any liens or encumbrances and that Contractor has full legal title to the Goods. Contractor further warrants no other person, or entity, has any right, title or interest in the Goods, which is superior to, or infringes upon, the rights granted to the Authorized Purchaser upon acceptance of Goods.

• Warranty on Safety and Health Requirements: Contractor represents and warrants that Goods or Services provided under this Contract comply with all applicable federal health and safety standards including, but not limited to, Occupational Safety and Health

Administration (OSHA) and all Oregon safety and health requirements, including but not limited to those of the Oregon Consumer and Business Services Department.

• Manufacturer Warranty: Contractor shall have all manufacturer warranties covering the Goods and component parts, if any, transferred to the Authorized Purchaser and provide warranty documents to Authorized Purchaser at time of delivery at no charge.

• Warranties Cumulative: The warranties set forth in Section 2.8 are in addition to, and not in lieu of, any other warranties provided under the Price Agreement or the Contract.

All warranties provided are cumulative and intended to afford Authorized Purchaser the broadest warranty protection available.

2.10 COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS:

Contractor shall comply with all federal, state and local laws, regulations, and ordinances applicable to this Contract as adopted or amended from time to time.

STATUTORY TERMS: Authorized Purchaser’s performance under this Contract is conditioned upon Contractor’s compliance with the obligations intended for contractors under ORS 279B.220, 279B.225 (if applicable to this Contract), 279B.230 and 279B.235 (if applicable to this Contract), which are incorporated into this Contract by reference. Contractor shall, to the maximum extent economically feasible in the performance of this Contract, use recycled products where possible.

This includes paper, “PETE” and other materials as defined in ORS 279A.010 [1][gg], [hh] and [ii].

NONCOMPLIANT GOODS: In the event of a conflict between the specifications in this Contract and applicable federal or state law, the law prevails. Contractor shall make any modifications required to achieve compliance with applicable law. When Contractor is notified, or becomes aware, of any required modifications, Contractor shall immediately notify SPS and Authorized Purchaser.

RECALLED GOODS, SERVICES OR COMPONENTS: In the event any Goods, Services or component parts are recalled by a regulatory body or the manufacturer or discovered by Contractor not to be following the applicable specifications, Contractor shall immediately notify SPS and Authorized Purchaser of the recall or non-compliance and shall provide copies of the notice or other documentation. Upon notification, Authorized Purchaser may elect to do any of the following:

• Cancel any portion of the ordering instrument.

• Reject Goods or Services.

• Revoke its acceptance of the Goods or Services.

• Require Contractor to complete necessary modifications, where applicable, in a timely manner, at no charge to Authorized Purchaser.

• Terminate the Contract.

In the event of rejection or revocation of acceptance under this subsection, Contractor shall promptly remove the Goods or Services at its sole cost and expense and reimburse Authorized Purchaser for any payments made.

2.11 FOREIGN CONTRACTOR: If the amount of the Contract exceeds ten thousand dollars

($10,000), and if Contractor is not domiciled in or registered to do business in the State, Contractor shall promptly provide to the Oregon Department of Revenue all information required by that department with respect to the Contract. Authorized Purchaser may withhold final payment under the Contract until Contractor has met this requirement.

2.12 TIME IS OF THE ESSENCE: Time is of the essence for performance of Contractor’s obligations under this Contract.

2.13 FORCE MAJEURE: Neither Authorized Purchaser nor Contractor will be held responsible for delay or default caused by fire, riot, acts of God, war, or any other cause which is beyond the party’s reasonable control. Contractor shall make all reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon the cessation of the cause, diligently pursue performance of its obligations under this Contract. Authorized Purchaser may terminate this Contract upon written notice to Contractor after reasonably determining that such delay or default will likely prevent successful performance of the Contract within a time frame that is acceptable to Authorized Purchaser.

2.14 FUNDS AVAILABLE AND AUTHORIZED; PAYMENTS: If Authorized Purchaser is an agency of the State of Oregon or another governmental body, payment obligations under this Contract are conditioned upon Authorized Purchaser’s receiving funding, appropriations, limitations, allotments, or other expenditure authority sufficient to allow Authorized Purchaser, in the exercise of its reasonable administrative discretion, to meet its payment obligations under this Contract. At the time the ordering instrument was issued, Authorized Purchaser had sufficient funds available and authorized to make payments under this Contract.

2.15 INDEPENDENT CONTRACTOR STATUS; RESPONSIBILITY FOR TAXES AND WITHHOLDING:

• Contractor is an independent contractor. Although the Authorized Purchaser reserves the right

(i) to determine (and modify) the delivery schedule for Goods or Services and (ii) to evaluate the quality of completed performance, Authorized Purchaser cannot and will not control the means or manner of Contractor’s performance. Contractor is responsible for determining the appropriate means and manner of performing any obligations required by this Contract.

• Contractor is responsible for all federal and state taxes applicable to compensation or payments paid to Contractor under this Contract and, unless Contractor is subject to backup withholding, Authorized Purchaser will not withhold from such compensation or payments any amount(s) to cover Contractor’s federal or state tax obligations. Contractor is not eligible for any social security, unemployment insurance or workers’ compensation benefits from compensation or payments paid to Contractor under this Contract, except as a self-employed individual.

2.16 INDEMNIFICATION:

• Contractor shall defend, save, hold harmless, and indemnify Authorized Purchaser, the State of Oregon and its officers, employees and agents from and against all claims, suits, actions, proceedings, losses, damages, liabilities, awards and costs of every kind and description (including reasonable attorney’s fees and expenses at trial, on appeal and in connection with any petition for review) (collectively, “claim”) which may be brought or made against any Authorized Purchaser, the State of Oregon or any agencies thereof, or the agents, officials or employees of any of the foregoing, and arising out of or related to (i) any personal injury, death or property damage caused by any alleged act, omission, error, fault, mistake or negligence of Contractor, its employees, agents, related to this Contract, (ii) any act or omission by Contractor that constitutes a material default of this Contract, including without limitation any default of warranty, or (iii) the infringement of any patent, copyright, trade secret or other proprietary right of any third party by delivery or use of the Goods or Services. Authorized Purchaser or the State of Oregon will promptly notify Contractor in writing of any claim of which Authorized Purchaser, or the State becomes aware. Contractor’s obligations under this section do not extend to any claim solely caused by (i) negligent or willful misconduct of Authorized Purchaser, or (ii) Authorized Purchaser’s modification of Goods or Services without Contractor’s approval and in a manner inconsistent with the purpose and proper usage of such Goods or Services.

• The Oregon Attorney General must give written authorization to any legal counsel purporting to act in the name of, or represent the interests of, the State of Oregon or its officers, employees or agents prior to such action or representation. Further, the State of Oregon, acting by and through its Department of Justice, may assume its own defense, including that of its officers, employees and agents, at any time when in the State’s sole discretion it determines that (i) proposed counsel is prohibited from the particular representation contemplated; (ii) proposed counsel is not adequately defending or able to defend the interests of the State of Oregon, its officers, employees or agents; (iii) important governmental interests are at stake; or (iv) the best interests of the State of Oregon are served thereby. Contractor’s obligation to pay for all costs and expenses includes those incurred by the State of Oregon in assuming its own defense and that of its officers, employees, or agents under this section.

2.17 DEFAULT:

BY CONTRACTOR: Contractor is in default under this Contract if:

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

Contractor no longer holds a license or certificate required for Contractor to perform its obligations under this Contract; or Contractor commits any default of any covenant, representation warranty, obligation or certification under this Contract, provided Contractor may cure the default within the period specified in Authorized Purchaser’s notice of default when Authorized Purchaser determines the default is curable by Contractor within a period that is acceptable to Authorized Purchaser.

BY AUTHORIZED PURCHASER: Authorized Purchaser is in default of this Contract if:

Authorized Purchaser fails to pay Contractor any amount pursuant to the terms of this Contract, and Authorized Purchaser fails to cure such failure within twenty (20) business days after delivery of Contractor’s notice of nonpayment or such longer period as Contractor may specify in such notice; or Authorized Purchaser commits any default of any covenant, representation, warranty, or obligation under this Contract and such default is not cured within twenty (20) business days after delivery of Contractor’s notice of default or such longer period as Contractor may specify in such notice.

2.18 DEFAULT REMEDIES:

BY CONTRACTOR: If Authorized Purchaser terminates this Contract, or if Authorized Purchaser is in default under Section 2.17 and whether or not Contractor elects to exercise its right to terminate this Contract under Section 2.19, Contractor’s sole remedy is a claim against Authorized Purchaser for the unpaid purchase price for Goods or Services delivered and accepted by Authorized Purchaser, less previous amounts paid and the amount of any claim(s) which Authorized Purchaser has against Contractor. If previous amounts paid to Contractor exceed the amount due to Contractor under this section, Contractor shall pay any excess to Authorized Purchaser upon written demand.

BY AUTHORIZED PURCHASER: If Contractor is in default under Section 2.17, in addition to the remedies afforded elsewhere in this Contract, Authorized Purchaser may recover all damages suffered as the result of Contractor’s default, including but not limited to direct, indirect, incidental and consequential damages, as provided in ORS 72.7110 to 72.7170.

Authorized Purchaser may, at its option, pursue any or all the remedies available to it under this Contract and at law or in equity, including, but not limited to:

Termination of the Contract as provided in Section 2.19 or Withholding all monies due to invoiced Goods or Services Contractor is obligated but has failed to deliver or perform within any scheduled completion dates or has performed inadequately or defectively;

Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief; and Exercise of its right of setoff and withholding of monies otherwise due and owing in an equal amount to Authorized Purchaser’s setoff without penalty to Authorized Purchaser.

These remedies are cumulative to the extent the remedies are not inconsistent, and Authorized Purchaser may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever.

2.19 TERMINATION:

BY MUTUAL CONSENT: This Contract may be terminated at any time by mutual written consent of Authorized Purchaser and Contractor.

RIGHTS OF AUTHORIZED PURCHASER. Authorized Purchaser may, at its sole discretion, terminate a Contract or other ordering instrument for convenience with thirty (30) calendar days’ written notice. Authorized Purchaser may terminate a Contract or other ordering instrument immediately upon notice to Contractor, or at such later date as Authorized Purchaser may establish in such notice, upon the occurrence of any of the following events:

(a) Authorized Purchaser fails to receive funding, appropriations, limitations, allotments, or other expenditure authority sufficient to allow Authorized Purchaser, in the exercise of its reasonable administrative discretion, to meet its payment obligations under this Contract;

(b) federal or state laws, regulations, or guidelines are modified or interpreted in such a way to prohibit either the purchase of the Goods or Services by Authorized Purchaser under the Price Agreement, or Authorized Purchaser’s payment for such Goods or Services from the planned funding sources; or

(c) Contractor is in default under this Contract under Section 2.17.

Upon receipt of written notice of termination, Contractor shall stop performance under this Contract if and as directed by Authorized Purchaser.

RIGHTS OF CONTRACTOR: Contractor may terminate a Contract with a minimum twenty (20) calendar-days written notice to Authorized Purchaser, if Authorized Purchaser is in default of the subject Contract as described in Section 2.17.

2.20 ACCESS TO RECORDS: Contractor shall retain, maintain and keep accessible all records relevant to this Contract (the “Records”) for a minimum of six (6) years. Longer periods may apply if or such longer if required by law following expiration, termination of Contract or until the conclusion of any audit, controversy or litigation arising out of, or related to, the Contract, whichever date is later. Financial Records must be kept in accordance with Generally Accepted Accounting Principles (GAAP). During the record-retention period established in this section, Contractor shall permit SPS, Authorized Purchaser, duly authorized representatives and the federal government access to the Records at a reasonable time and place for purposes of examination and copying.

2.21 NOTICES: Except as otherwise expressly provided in this Contract, any communications between the parties, or notices given under this Contract, are effective only if given in writing by personal delivery, facsimile, email or United States Postal Service, postage prepaid, to the party’s authorized representative. For Authorized Purchaser, the authorized representative and the address or number for notices or communications to given to that authorized representative are as identified in the ordering instrument or as later indicated by Authorized Purchaser pursuant to this section.

For Contractor, the authorized representative and the address or number for notices or communications to given to that authorized representative are as identified in the Price Agreement or as later indicated by Contractor pursuant to this section. Any communication or notice via the United States Postal Service deemed given five (5) days after mailing. Any communication or notice by personal delivery deemed given immediately upon such delivery. Any communication or notice by email deemed given when the recipient, by an email sent to the email address for the sender or by a notice given by another method in accordance with this section, acknowledges having received that email, with an automatic “read receipt” not constituting acknowledgment of an email for purposes of this section.

2.22 ORDERING INSTRUMENTS; ACKNOWLEDGEMENTS: The parties acknowledge and agree, other than designation of quantities, types of Goods or Services, destination, dates and dates and scheduled delivery of other performances, purchase orders are for the convenience of the parties to initiate and confirm order of Goods or Services under this Contract. No other terms or conditions are of any force, effect or binding upon the parties.

2.23 GOVERNING LAW: This Contract is governed and construed in accordance with the laws of the

State of Oregon without regard to principles of conflicts of law.

2.24 VENUE; CONSENT TO JURISDICTION:

2.24.1 STATE CONTRACT VENUE; CONSENT TO JURISDICTION: Any claim, action, suit or proceeding (collectively, “Claim”) between an Authorized Purchaser that is an agency of the State of Oregon and Contractor that arises from or relates to this Contract shall be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon; provided, however, if a Claim must be brought in a federal forum, then unless otherwise prohibited by law it shall be brought and conducted solely and exclusively within the United States District Court for the State of Oregon. Contractor hereby consents to the in personam jurisdiction of said courts and waives any objection to venue in such courts and waives any claim that such forums are inconvenient. Nothing herein may be construed as a waiver of the State of Oregon’s sovereign or governmental immunity, whether derived from the Eleventh Amendment to the United States Constitution or otherwise, or of any defenses to Claims or jurisdiction based thereon.

2.24.2 ORCPP CONTRACT VENUE; CONSENT TO JURISDICTION: Any Claims between Contractor and an Authorized Purchaser other than an agency of the State of Oregon that arise from or relate to this Contract order must be brought and conducted solely and exclusively within the Circuit Court of the county in which such Authorized Purchaser resides, or at the Authorized Purchaser’s option, within such other county as the Authorized Purchaser is entitled under the laws of the relevant jurisdiction to bring or defend Claims. If any such Claim must be brought in a federal forum, then unless otherwise prohibited by law it must be brought and conducted solely and exclusively within the United States District Court for the District in which such Authorized Purchaser resides.

Contractor hereby consents to the in personam jurisdiction of said courts and waives any objection to venue in such courts and waives any claim that such forums are inconvenient. Nothing herein may be construed as a waiver of Authorized Purchaser’s sovereign or governmental immunity, if any, whether derived from the Eleventh Amendment to the United States Constitution or otherwise, or of any defenses to Claims or jurisdiction based thereon.

2.25 SURVIVAL: All rights and obligations cease upon termination or expiration of this Contract, except for the rights and obligations and declarations which expressly or by their nature survive termination of this Contract, including without limitation this Section 2.25, and provisions regarding warranties and liabilities, independent Contractor status and taxes and withholding, compensation, Contractor’s representations and warranties, control of defense and settlement, remedies, dispute resolution, order of precedence, maintenance and access to records, notices, severability, successors and assigns, third party beneficiaries, waiver, headings, and integration.

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

2.27 ASSIGNMENTS, SUBCONTRACTS AND SUCCESSORS: Contractor shall not assign, sell, transfer, or subcontract rights, or delegate responsibilities under this Contract, as a whole or in part, without the prior written consent of Authorized Purchaser. Further, no such written consent relieves Contractor of any obligations under the Contract, and any assignee, transferee, or delegate will be considered the agent of Contractor. The provisions of this Contract are binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

2.28 MERGER CLAUSE, AMENDMENT and WAIVER: This Contract constitutes the entire agreement between Contractor and Authorized Purchaser on the subject matter of this Contract. There are no understandings, agreements, or representations, oral or written, not specified in this Contract on the subject matter. No amendment of this Contract is valid unless it is in writing and signed by the parties. No waiver or consent is effective unless in writing and signed by the party against whom it is asserted.

Waivers and consents are effective only in the specific instance and for the specific purpose given. The failure of Authorized Purchaser to enforce any provision of this Contract is not a waiver by Authorized Purchaser of that or any other provision.

2.29 CERTIFICATION OF COMPLIANCE WITH TAX LAWS: Contractor has complied with the tax laws of the State and the applicable tax laws of any political subdivision of the State. Contractor shall, for the term of this Contract, comply with all tax laws of the State and all applicable tax laws of any political subdivision of the State. For the purposes of this section, “tax laws” includes: (i) all tax laws of the State, including but not limited to ORS 305.620 and ORS chapters 316, 317, and 318; (ii) any tax provisions imposed by a political subdivision of the State that applied to Contractor, to Contractor’s property (whether tangible or intangible), operations, receipts, or income, or to Contractor’s performance of or compensation for any work performed by Contractor; (iii) any tax provisions imposed by a political subdivision of the State that applied to Goods or Services provided by Contractor; and (iv) any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions.

Any failure to comply with the provisions of this Section 2.29 constitutes a material default under this Contract. Such default entitles Authorized Purchaser to terminate this Contract and pursue and recover all damages arising from the default or termination of the Contract, and to pursue any or all remedies available under this Contract, at law, or in equity, including but not limited to:

1. Termination of this Contract, in whole or in part.

2. Exercise of the right of setoff, and withholding of amounts otherwise due and owing to

Contractor, in an amount equal to Authorized Purchaser’s setoff right, without penalty;

and

3. Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief. Authorized Purchaser may recover any, and all, damages suffered as the result of Contractor's default under this Contract, including but not limited to direct, indirect, incidental and consequential damages, costs of cure, and costs incurred in securing replacement Goods or Services.

2.30 INTENDED BENEFICIARY. SPS is an intended beneficiary of this Contract. The parties to this Contract may modify the ordering instrument or terminate this Contract without the consent of SPS.

2.31 ASSIGNMENT OF ANTITRUST RIGHTS. Contractor irrevocably assigns to the State of Oregon any claim for relief or cause of action which Contractor now has or which may accrue to Contractor in the future by reason of any violation of 15 U.S.C. § 1-15 or ORS 646.725 or ORS 646.730, in connection with any Goods or Services provided to Contractor for the purpose of carrying out Contractor's obligations under this Contract, including, at the State's option, the right to control any such litigation on such claim for relief or cause of action. Contractor shall require any subcontractors hired to perform any of Contractor's duties under this Contract to irrevocably assign to the State of Oregon, as third party beneficiary, any right, title or interest that has accrued or which may accrue in the future by reason of any violation of 15 U.S.C.