S-10700-00000372 Oregon sample TCs Final.pdf

Sample Oregon Participating Addendum

NASPO ValuePoint

PARTICIPATING ADDENDUM

(“ADDENDUM”)

UNMANNED AERIAL VEHICLE (DRONE) SERVICES

Lead by the State of Virginia

Master Agreement #: ______

Contractor: _______________ (Contractor)

Participating State: STATE OF OREGON, acting by and through the Department of Administrative Services, Procurement Services (“DAS PS”)

Master Agreement Terms and Conditions:

1. Scope: This Addendum covers the acquisition of Unmanned Aerial Vehicle (Drone)

Services and is for use by state agencies and other entities located in the State of Oregon, as authorized by that State’s statutes to utilize State contracts with the prior approval of the State’s Chief Procurement Official.

The following Goods and Services are included in this Addendum:

• All Goods and Services and accessories listed in the Master Agreement, as set forth on the Contractor page of the NASPO ValuePoint website.

This Addendum establishes an agreement to agree between Contractor and DAS PS pursuant to ORS 279B.140. The Goods and Services offered under the Master Agreement that are available under this Addendum are described above. This Addendum contains additional terms and conditions specifically applicable to individual Contracts between Contractor and Purchasing Agencies. In the event of a conflict between the terms and conditions of this Addendum and the Master Agreement, the following order of precedence applies:

(a) This Addendum, less its exhibits;

(b) Exhibit No. 1 of the Addendum (State Specific Terms and Conditions);

(c) Exhibit No. 6 of the Addendum (Security Requirements):

(d) Exhibit No. 2 of the Addendum (Insurance);

(e) the Master Agreement and its exhibits in the order set forth therein;

(e) Exhibit No. 3 of the Addendum (Contractor Tax Certification);

(g) Exhibit No. 5 (Vendor Collected Administrative Fee (VCAF)/Volume Sales Report (VSR); and

(h) Exhibit No. 4 of this Addendum (Order form)

2. Participation: The State of Oregon is a member of NASPO ValuePoint. The State, by and through the Department of Administrative Services, Enterprise Goods and Services, Procurement Services (“DAS PS”), on behalf of the State of Oregon and its agencies and the Oregon Cooperative Procurement Program (“ORCPP”) members (collectively “Purchasing Agencies” as defined in Exhibit No. 1), has elected to participate in the Master Agreement, subject to the terms and conditions of this Participating Addendum (“Addendum” or “Participating Addendum”). This Addendum is effective when all necessary approvals have been obtained and signed by the parties (“Effective Date”).

This NASPO ValuePoint Master Agreement may be used by Purchasing Agencies within the State of Oregon (“Participating State” or “Oregon”).

Issues of interpretation and eligibility for participation are solely within the authority of the State Chief Procurement Official.

3. Primary Contacts: The primary contact individuals for this Participating Addendum are as follows (or their named successors):

Contractor

Name Address

Telephone Fax

E-mail

Oregon, Contract Administrator

Name Shirley A. Smith State of Oregon, Department of Administrative Services, Procurement Services

Address 1255 SE Ferry Street, Salem, OR 97301 Telephone 971-718-7428

Fax 503-373-1626 E-mail Shirey.Smith@oregon.gov

4. Participating State Modifications Or Additions To The Master Agreement:

These modifications or additions apply only to actions and relationships within the Participating State.

Participating State must check one of the boxes below.

[ ] No changes to the terms and conditions of the Master Agreement are required.

[X] See Exhibits No. 1 - 6, including Changes to Master Agreement State-Specific Constitutional, Statutory and Other Requirements, attached hereto for additional provisions, modifying or supplementing the Master Agreement terms and conditions, along with the following changes:

5. Purchasing Agency - Contractor Selection:

This Addendum is not exclusive, Purchasing Agencies may acquire the Goods and Services from other Oregon Participating Addendum awarded contractors. DAS PS anticipates awarding four (4) Participating Addenda under the solicitation, Purchasing Agencies who are mailto:Greg.F.Smith@oregon.gov

State Agencies must follow the selection process below in order to award a Contract to one of the contractors.

Purchasing Agencies that are not State Agencies may select the Contractor of the Purchasing Agency’s choice in compliance with applicable statute and rules.

5.1 Contractor Selection Process, Large Purchases (over $10,000). From time to time, Purchasing Agencies that are State Agencies, may purchase Goods and Services from Contractor or other contractors and shall use one of the following three selection processes for all purchases over $10,000:

1) Highest Ranked Awardee of RFP #E194-79435 for Service Zone #10:

Purchasing Agency may issue purchase orders or contracts for Goods and Services to the Awardee who received the highest total points in RFP #E194-79435 for Service Zone #10.

OR

2) Highest Ranked Awardee for Service Zone #10 in Pricing Catalog Comparison: Purchasing Agency, on an annual basis (beginning upon the Effective Date of the Addendum and then on each anniversary date thereafter) may make a selection to be effective for the entire contract year period, as follows:

(a) Purchasing Agency may create its own pricing catalog comprised of most used Goods and Services;

(b) Purchasing Agency may then define the criteria most important to it in the selection of a provider, such as: price, functionality, accounting/invoicing issues, use, availability, past performance;

(c) Purchasing Agency shall request quotes from each of the providers for the upcoming contract year period;

(d) Purchasing Agency shall then evaluate and score the pricing catalog from each provider; and

(e) Purchasing Agency shall acquire the Goods and Services from the highest ranking provider for Service Zone #10 from its pricing catalog scoring.

OR

3) Cost Comparison: Purchasing Agency may conduct a goods and service specific comparison based upon price.

5.2 Contractor Selection Process, Small Purchases ($10,000 or under). For purchases with a value of $10,000 or under, Purchasing Agencies that are State Agencies may select the Contractor of the Purchasing Agency’s choice in compliance with applicable statute and rule.

6. Lease Agreements: “Reserved”.

7. Subcontractors: All contactors, dealers, and resellers authorized in the State of Oregon, as shown on the dedicated Contractor (cooperative contract) website http://www.naspovaluepoint.org/#/home/contracts, are approved to provide sales and service support to participants in the NASPO ValuePoint Master Agreement. The cCntractor’s dealer http://www.naspovaluepoint.org/#/home/contracts participation will be in accordance with the terms and conditions set forth in the aforementioned Master Agreement.

8. Orders: Any order placed by a Participating Entity or Purchasing Agency for a service available from this Oregon Participating Addendum shall be deemed to be a sale under (and governed by the prices and other terms and conditions) of the Master Agreement unless the parties to the order agree in writing that another contract or agreement applies to such order.

9. Tax Compliance: As set forth on Exhibit No. 3, Contractor has complied with the tax laws of this State and the applicable tax laws of any political subdivision of this State. Contractor shall, throughout the duration of this Addendum and any extensions, comply with all tax laws of this State and all applicable tax laws of any political subdivision of this State. For the purposes of this Section, “tax laws” includes: (i) All tax laws of this State, including but not limited to ORS 305.620 and ORS chapters 316, 317, and 318; Any tax provisions imposed by a political subdivision of this State that applied to Contractor, to Contractor’s property, 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 this State that applied to Contractor, or to goods, services, or property, whether tangible or intangible, 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 violation of this Section 9 constitutes a material breach of this Addendum and any contract issued under this Addendum. Further, any violation of Contractor's warranty set forth in Exhibit No. 3 also shall constitute a material breach of this Addendum and any Contract issued under this Addendum. Any violation shall entitle DAS PS or Purchasing Agency, as applicable, to terminate this Addendum or the applicable Contract, to pursue and recover any and all damages that arise from the breach and the termination of this Addendum or the applicable Contract, and to pursue any or all of the remedies available under this Addendum, a Contract, at law, or in equity, including but not limited to:

• Termination of this Addendum or the applicable Contract, 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 Purchasing Agency's setoff right, without penalty; and

• Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief. DAS PS or Purchasing Agency may recover any and all damages suffered as the result of Contractor's breach of this Addendum or the applicable Contract, including but not limited to direct, indirect, incidental and consequential damages, costs of cure, and costs incurred in securing replacement Goods or Services.

These remedies are cumulative to the extent the remedies are not inconsistent, and DAS PS or Purchasing Agency may pursue any remedy or remedies singly, collectively, successively, or in any order whatsoever.

10. Participating Addendum Integration: This Addendum and the Master Agreement and their exhibits and attachments, set forth the entire agreement between Contractor and Participating State with respect to the subject matter. There are no understandings, agreements, or representations, oral or written, not specified herein. Any attempt to modify or add or incorporate terms and conditions inconsistent with, and contrary to, the terms and conditions of this Addendum and the Master Agreement through a Contract or other document is null and void and hereby rejected. The terms and conditions of this Addendum and the Master Agreement shall prevail and govern in case of any attempted modifications or inconsistent terms

11. Non-Discrimination in Employment: Contractor certifies that Contractor has a written policy and practice that meets the requirements, described in ORS 279A.112, of preventing sexual harassment, sexual assault, and discrimination against employees who are members of a protected class. Contractor agrees, as a material term of the Participating Addendum, to maintain the policy and practice in force during the entire term of the Addendum.

IN WITNESS WHEREOF, the parties have executed this Addendum as of the date of execution by both parties below.

Participating State/Entity:

Contractor:

Signature:

Signature:

Name: Shirley A. Smith

Name:

Title: State Procurement Analyst

Title:

Date: Date:

Approved Pursuant to ORS 291.047 By: _________________ Date: ______________ Sr. Assistant Attorney General

[Additional signatures may be added if required by the Participating Entity] For questions on executing a participating addendum, please contact:

NASPO ValuePoint

Cooperative Development Coordinator:

Telephone:

Email:

[Please email fully executed PDF copy of this document to

PA@naspovaluepoint.org to support documentation of participation and posting in appropriate data bases.] mailto:PA@naspovaluepoint.org

EXHIBIT NO. 1

Changes to Master Agreement State-Specific Constitutional, Statutory and Other Requirements

1. Definitions. The following terms have the meanings set forth below. Capitalized terms not defined in this Addendum have the meaning ascribed to them in the Master Agreement and its exhibits.

“Contract” means the agreement between Purchasing Agency and Contractor formed by the Purchasing Agency’s issuance of a Order that incorporates by reference the terms and conditions of the Master Agreement and this Addendum.

“DAS PS” means the State of Oregon acting by and through the Department of Administrative Services, Procurement Services.

“ORCPP” means the Oregon Cooperative Purchasing Program. ORCPP members include agencies and organizations within the State of Oregon that are authorized to purchase the Goods and Services available under a price agreement or master agreement entered into by the State.

“Master Agreement” means the State of Virginia Master Agreement #_____ between Contractor and the State of Virginia, on behalf of the member states of the NASPO ValuePoint Cooperative Purchasing Program, and its attachments, which together with this Addendum sets forth terms, conditions and requirements for purchase by Purchasing Agencies of the Goods and Services described therein.

“Order” means the purchase order or other ordering instrument submitted to Contractor by an Purchasing Agency that incorporates this Addendum by reference and specifies the quantity and type of goods or services that Contractor will provide to the Purchasing Agency under the terms of the Master Agreement and this Addendum.

“Personal Information” means:

(a) (A) A consumer’s first name or first initial and last name in combination with any one or more of the following data elements, if encryption, redaction or other methods have not rendered the data elements unusable or if the data elements are encrypted and the encryption key has been acquired:

(i) A consumer’s Social Security number;

(ii) A consumer’s driver license number or state identification card number issued by the Department of Transportation;

(iii) A consumer’s passport number or other identification number issued by the United States;

(iv) A consumer’s financial account number, credit card number or debit card number, in combination with any required security code, access code or password that would permit access to a consumer’s financial account, or any other information or combination of information that a person reasonably knows or should know would permit access to the consumer’s financial account;

(v) Data from automatic measurements of a consumer’s physical characteristics, such as an image of a fingerprint, retina or iris, that are used to authenticate the consumer’s identity in the course of a financial transaction or other transaction;

(vi) A consumer’s health insurance policy number or health insurance subscriber identification number in combination with any other unique identifier that a health insurer uses to identify the consumer; or

(vii) Any information about a consumer’s medical history or mental or physical condition or about a health care professional’s medical diagnosis or treatment of the consumer.

(B) A user name or other means of identifying a consumer for the purpose of permitting access to the consumer’s account, together with any other method necessary to authenticate the user name or means of identification.

(C) Any of the data elements or any combination of the data elements described in subparagraph (A) or (B) of this paragraph without the consumer’s user name, or the consumer’s first name or first initial and last name, if:

(i) Encryption, redaction or other methods have not rendered the data element or combination of data elements unusable; and

(ii) The data element or combination of data elements would enable a person to commit identity theft against a consumer.

(b) “Personal information” does not include information in a federal, state or local government record, other than a Social Security number, that is lawfully made available to the public. See the Oregon Consumer Information Protection Act, ORS 646A.602(12)

“Purchasing Agency” means an agency of the State of Oregon or any ORCPP member that submits a Order to Contractor.

“Purchasing Agency Data” means information created and information stored by Purchasing Agency using the Goods or Services under the Addendum, and information created and collected by Contractor regarding Purchasing Agency and others using the Goods or Services under this Addendum, including Personal Information.

“State”, for the purposes of this Participating Addendum, means the State of Oregon.

2. Orders.

2.1 Orders. Purchasing Agencies may use their own forms for Orders. State agencies may also use the general State-approved Order referencing the Master Agreement Number. To the extent that the terms of any form differ from the terms of this Addendum, the terms of this Addendum supersede such contrary terms. Each Order from an Purchasing Agency that is not a State agency must contain, on the front page, the following language:

THIS PURCHASE IS PLACED AGAINST THE STATE OF VIRGINIA

MASTER AGREEMENT NO. ____ PARTICIPATING ADDENDUM

ENTERED INTO BY THE STATE OF OREGON, CONTRACT NO.

____ . THE TERMS AND CONDITIONS OF THE MASTER

AGREEMENT AND THE ASSOCIATED PARTICIPATING

ADDENDUM APPLY TO THIS PURCHASE AND SUPERSEDE ALL

CONFLICTING TERMS AND CONDITIONS, EXPRESS OR IMPLIED.

2.2 Effect of Orders. The State is only liable for purchases made by State of Oregon agencies that issue Orders. Other Purchasing Agencies are responsible for any purchases under Orders they issue. The State expressly disclaims any liability for purchases made by non-State agency Purchasing Agencies or any other entity.

2.3 Verification of Purchasing Agencies. Contractor is responsible for verifying that it provides Goods and Services under this Addendum only to Purchasing Agencies.

Contractor may verify that a particular entity is an ORCPP member on-line at http://www.oregon.gov/das/Procurement/Pages/Orcppmember.aspx or by using the Oregon Procurement Information Network (ORPIN) at http://orpin.oregon.gov/open.dll/welcome.

2.4 Purchasing Agencies that are agencies of the State of Oregon under DAS PS procurement authority may issue Orders under this Addendum for an unlimited dollar amount without further delegation of procurement authority from DAS PS.

Notwithstanding the foregoing DAS PS delegation, Purchasing Agencies that are agencies of the State of Oregon must obtain all other necessary approvals, including but not limited to legal sufficiency approval, as may be required.

3. Payment Provisions. All payments are subject to ORS 293.462.

4. Funds available and authorized/non-appropriation. The State of Oregon’s and its agencies’ payment obligations under this Addendum are conditioned upon Purchasing Agency’s receiving funding, appropriations, limitations, allotments, or other expenditure authority sufficient to allow Purchasing Agency, in the exercise of its reasonable administrative discretion, to meet its payment obligations under any Contract issued under this Addendum. Contractor is not entitled to receive payment under this Addendum or any Contract from any part of Oregon state government other than Purchasing Agency.

Nothing in this Addendum or Contract is to be construed as permitting any violation of Article XI, section 7 of the Oregon Constitution or any other law regulating liabilities or monetary obligations of the State of Oregon. Purchasing Agency represents that it has sufficient appropriations and limitation for the current biennium to make payments under any Contract issued under this Addendum.

5. Volume Sales Reports (VSRs) / Vendor Collected Administrative Fee (VCAF)

5.1 Volume Sales Reports (VSRs):

http://www.oregon.gov/das/Procurement/Pages/Orcppmember.aspx http://orpin.oregon.gov/open.dll/welcome

5.1.1 Pursuant to the process defined by DAS PS found at:

https://www.oregon.gov/das/Procurement/Pages/Supplier.aspx, Contractor shall submit a Volume Sales Report (VSR) to DAS PS on a quarterly basis; the quarterly report is due no later than thirty (30) calendar days from the end of the quarter. (For purposes of this Agreement, quarters end March 31, June 30, September 30 and December 31.) Upon written notice from DAS PS, Contractor shall submit the VSR on a monthly basis no later than fifteen (15) business days from the end of the preceding month, as directed by DAS PS. The VSR will contain:

• Complete and accurate details of all receipts (sales and refunds) for the reported period; and

• Such other information as DAS PS may reasonably request.

Contractor is responsible for timely reporting and shall submit a VSR whether or not there are sales. When no sales have been recorded for the reporting period, a report must be submitted stating “No Sales for the Reporting Period.”

5.1.2 Data Medium and Delivery Medium: Contractor shall provide VSRs in MS Excel (.xls) format. VSRs must be submitted by e-mail. Delivered print outs of VSRs are not acceptable. Hard copies of VSRs on CDs are only acceptable if the size of the file precludes transmission by email. Approval from the Contract Administrator must be obtained for deviations from these requirements.

5.1.3 Receipt/Acceptance: The first VSR submitted by the Contractor must be submitted to the DAS PS Contract Administrator for review and approval. Approved first VSRs and subsequent VSRs must be submitted to VCAF.REPORTING@oregon.gov. A separate section follows describing the administrative charge if it is applicable. The Contract Administrator's receipt or acceptance of any of the VSRs furnished pursuant to this Addendum shall not preclude DAS PS from challenging the validity thereof at any time.

5.1.4 DAS PS reserves the right to terminate this Addendum if volume sales reports are not received as scheduled on in the prescribed format.

5.2 Vendor Collected Administrative Fee (VCAF):

5.2.1 Pursuant to the process defined by DAS PS and published at https://www.oregon.gov/das/Procurement/Pages/Supplier.aspx, Contractor shall submit a Vendor Collected Administrative Fee (VCAF), as directed by DAS PS. The VCAF is a charge equal to Two Percent (2.0%) of Contractor’s Gross total sales, less any credits, made to Purchasing Agencies during the reporting period.

5.2.2 Contractor may not reflect the VCAF fee as a separate line item charge to Purchasing Agencies. Contractor’s prices must reflect all Contractor’s charges to Purchasing Agencies.

Contractor is responsible for timely payment of the VCAF, regardless of entity that actually reports or makes VCAF payment to DAS PS. The form of payment must be https://www.oregon.gov/das/Procurement/Pages/Supplier.aspx mailto:VCAF.REPORTING@oregon.gov https://www.oregon.gov/das/Procurement/Pages/Supplier.aspx specifically approved by the Contract Administrator.

Late payments from Contractor will accrue interest at a rate of 18% per annum or the maximum rate permitted by law, whichever is less, until such overdue amount shall have been paid in full.

5.2.3 Contractors may not reflect the VCAF fee as a separate line item charge to Purchasing Agencies. Contractor’s proposed prices shall reflect all Contractor’s charges to Purchasing Agencies. For the purposes of this Addendum, quarters end March 31, June 30, September 30, and December 31. DAS PS will invoice the Contractor for the VCAF on a State generated invoice from the information submitted on the VSR.

Contractor is responsible for timely reporting and payment, regardless of entity that actually reports or makes VCAF payment to DAS PS.

5.2.3.1 Payment Format: The fee shall be in the form of a check remitted to:

State of Oregon Department of Administrative Services Attn: Shared Financial Services/PS 155 Cottage Street NE Salem, Oregon 97301

Any other form of payment must be specifically approved by the Contract Administrator.

5.2.3.2 Interest: Any payments Contractor makes or causes to be made to DAS PS after the due date as indicated on the invoice shall accrue interest at a rate of 18% per annum or the maximum rate permitted by law, whichever is less, until such overdue amount shall have been paid in full. DAS PS' right to interest on late payments shall not preclude DAS PS from exercising any of its other rights or remedies pursuant to this Addendum or otherwise with regards to Contractor's failure to make timely remittances.

5.3 Audit: DAS PS may, upon reasonable request during regular business hours, by itself or by a person authorized by it, audit Contractor’s records and other pertinent data, to determine and verify the figures reported in any VSRs furnished by Contractor. In the event that any such audit reveals underpayment of administrative fees, Contractor shall immediately pay the amount of deficiency, together with interest. If the audit reveals that an underpayment exists, Contractor shall pay the cost of the audit.

5.4 Limitation of Liability: Contractor acknowledges and agrees that the State shall bear no liability on Contracts entered into for purchases by non-State Agencies, which liability the State expressly disclaims. With regard to non-State Agencies, Contractor agrees to look solely to the respective contracting party for any rights and remedies Contractor may have at law or in equity arising out of the sale and purchase of Contractor's Goods or Services and the resulting contractual relationship, if any, with each such contracting party.

6. Warranties. Purchasing Agencies are entitled to the warranties, rights, remedies, and benefits under the Master Agreement and this Addendum for any purchases made by such Purchasing Agencies pursuant to Orders. Without limiting the generality of the warranty provisions of the Master Agreement, Contractor represents and warrants to Purchasing Agency that:

6.1 Contractor has the power and authority to enter into and perform this Addendum and that this Addendum, when executed and delivered, will be a valid and binding obligation of Contractor enforceable in accordance with its terms;

6.2 Goods will be new, unused, current production models, where applicable, and will be free from defects in materials, design and manufacture for manufacturer’s standard warranty period. Where specifications have been made a part of the RFP, Contractor further warrants that all Goods conform to the specifications and meet or exceed all quality and safety standards set in the RFP;

6.3 all Services to be performed under this Addendum will be performed in accordance with the highest applicable professional or industry standards, and that only workmanship of the first quality shall be employed in the performance of this Addendum;

6.4 Contractor shall transfer to Purchasing Agency all manufacturer warranties covering Goods or Services, if any at time of delivery at no charge, and

6.5 all Goods or Services, if any, are free and clear of any liens or encumbrances, and that Contractor has full legal title to such Goods or Services, and that no other person has any right, title or interest in the Goods or Services which is superior to or infringe upon the rights granted to Purchasing Agency hereunder.

The warranties set forth in this section are in addition to, and not in lieu of, any other warranties provided in the Master Agreement. All warranties provided in this Addendum are cumulative and will be interpreted expansively so as to afford Purchasing Agency the broadest warranty protection available.

7. Indemnities.

7.1 General Indemnity. Contractor will defend, save, hold harmless and indemnify the Purchasing Agency and the State of Oregon and their agencies, subdivisions, officers, employees and agents from and against all claims, suits, actions, losses, damages, liabilities, costs and expenses of any nature whatsoever resulting from, arising out of or relating to the activities of Contractor or its officers, employees, subcontractors or agents under the Addendum.

7.2 Infringement Indemnity. Contractor will, at Contractor’s sole expense, defend, save, hold harmless and indemnify Purchasing Agencies and the State of Oregon and their agencies, subdivisions, officers, employees and agents from and against any and all costs, damages, attorneys’ fees, and any and all costs incurred in any settlement negotiation or final settlement agreement resulting from, relating to, or arising out of a claim that any aspect of the goods or services furnished under a Order infringes a patent, utility model, industrial design, copyright, mask work, trademark, trade dress, or any other legally cognizable intellectual property right of any third party (an “Infringement Claim”).

7.3 Participation. Control of Defense and Settlement. Contractor’s obligation to indemnify Purchasing Agency as set forth in Sections 7.1 and 7.2 is conditioned on Purchasing Agency providing to Contractor prompt notification of any claim or potential claim of which Purchasing Agency becomes aware that may be the subject of those Sections. Contractor shall have control of the defense and settlement of any claim that is subject to Section 7.1 or Section 7.2; however, neither Contractor nor any attorney engaged by Contractor shall defend the claim in the name of the State of Oregon or any Purchasing Agency of the State of Oregon, nor purport to act as legal representative of the State of Oregon or any of its agencies, without the approval of the Attorney General, nor shall Contractor settle any claim on behalf of the State of Oregon without the approval of the Attorney General. The State of Oregon may, at its election and expense, assume its own defense and settlement in the event that the State of Oregon determines that Contractor is prohibited from defending the State of Oregon, is not adequately defending the State of Oregon’s interests, or that an important governmental principle is at issue and the State of Oregon desires to assume its own defense.

7.4 Remedies. If any goods or services furnished by Contractor are, in Contractor’s opinion, likely to become the subject of an Infringement Claim, or if an Purchasing Agency is prevented from exercising its rights under this Addendum based on any Infringement Claim or court order arising from any Infringement Claim, then Contractor may, at its option and expense, procure for the Purchasing Agency the right to continue using the allegedly infringing goods or services, or replace or modify the goods or services so that they become non-infringing; provided that the replacement or modified good or service meets the specifications set forth in the applicable Order to the satisfaction of the Purchasing Agency. If the foregoing remedies are not available, then Purchasing Agency will return the allegedly infringing goods or terminate the allegedly infringing services, and Contractor will refund Purchasing Agency’s payments, in full, for the allegedly infringing goods or services.

8. Term and Termination of Participating Addendum.

8.1 Term. This Addendum remains in effect until the earlier of (a) the expiration or termination of the Master Agreement, or (b) termination of this Addendum in accordance with its terms.

8.2 Termination. DAS PS may terminate this Addendum, in whole or in part, at any time upon thirty (30) days prior notice to Contractor. In addition, DAS PS may terminate this Addendum, in whole or in part, immediately upon notice to Contractor, or at such later date as DAS PS may establish in such notice, for any reason, or upon the occurrence of any of the following events:

8.2.1 State fails to receive funding, or appropriations, limitations or other expenditure authority at levels sufficient to pay for the goods to be purchased under the Addendum;

or

8.2.2 Federal or state laws, regulations or guidelines are modified or interpreted in such a way that either the purchase of goods under this Addendum is prohibited or the State is prohibited from paying for such goods from the planned funding source.

Upon receipt of written notice of termination, Contractor will stop performance under all Orders as directed by State.

8.3 Termination under any provision of this Addendum does not extinguish or prejudice State's or an Purchasing Agency's right to enforce this Addendum or a Order with respect to Contractor's breach of any warranty or any defect in or default of Contractor's performance that has not been cured, including any right of the State or an Purchasing Agency to indemnification by Contractor. If this Addendum or a Order is so terminated, the State or an Purchasing Agency will pay Contractor in accordance with the terms of this Addendum for goods delivered and accepted by the Purchasing Agency.

9. Termination of Individual Orders.

9.1 Individual Orders may be terminated at any time by written consent of Purchasing Agency and Contractor or Purchasing Agency may, at its sole discretion, terminate individual Orders, in whole or in part, upon 30 days written notice to Contractor.

9.2 Purchasing Agency may terminate individual Orders, in whole or in part, immediately upon notice to Contractor, or at such later date as Purchasing Agency may establish in such notice, upon the occurrence of any of the following events:

9.2.1 Purchasing Agency fails to receive funding, or appropriations, limitations or other expenditure authority at levels sufficient to pay for the goods or services to be purchased under the Order;

9.2.2 Federal or State laws, regulations or guidelines are modified or interpreted in such a way that either the purchase of goods or services under the Order is prohibited or Purchasing Agency is prohibited from paying for such goods or services from the planned funding source; or

9.2.3 Contractor commits any material breach of this Addendum or a Order

9.3 Upon receipt of written notice of termination, Contractor will stop performance under the Order as directed by Purchasing Agency.

9.4 Termination of a Order does not extinguish or prejudice Purchasing Agency's right to enforce the Order with respect to Contractor's breach of any warranty or any defect in or default of Contractor's performance that has not been cured, including any right of

Purchasing Agency to indemnification by Contractor. In addition, termination of a Order does not extinguish or prejudice Purchasing Agency’s right to enforce the warranty, indemnification, governing law, venue and consent to jurisdiction provisions of this Addendum. If a Order is so terminated, Purchasing Agency will pay Contractor in accordance with the terms of this Addendum for goods or services delivered and accepted by Purchasing Agency.

10. Compliance with Applicable Law. Contractor will comply with all federal, state and local laws, rules, regulations, executive orders and ordinances applicable to the Work under this Contract, and an Purchasing Agency’s performance under a Order is conditioned on Contractor’s compliance with the provisions of ORS 279B.220, 279B.235, 279B.230, and 279B.270. In addition, Contractor warrants good and services provided under this Addendum will comply with all federal Occupational Safety and Health Administration (OSHA) requirements and with all Oregon safety and health requirements, including those of the State Workers’ Compensation Division. Contractor also agrees to comply with (a) Title VI of the Civil Rights Act of 1964, (b) Section v of the Rehabilitation Act of 1973, (c) the Americans with Disabilities Act of 1990 and ORS 659.425, (d) all regulations and administrative rules established pursuant to the foregoing laws and (e) all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations.

11. Confidentiality; Non-disclosure Agreements. In addition to the provisions in Attachment B, Section 22 of the Master Agreement, Contractor shall, upon Purchasing Agency’s request, provide its policies and procedures for safeguarding Confidential Information to Purchasing Agency for Purchasing Agency’s review. Such policies must address information conveyed in oral, written, and electronic format and include procedures for how Contractor will respond when a violation or possible violation occurs.

In addition, upon Purchasing Agency’s request, Contractor shall obtain executed non-disclosure agreements from Contractor’s employees, agents, and subcontractors performing Services under this Addendum or any Order.

12. Application of Public Records Law. Contractor acknowledges that any disclosures Contractor makes to Purchasing Agency under this Addendum are subject to application of the Oregon Public Records Law, including but not limited to ORS 192.311

– 192.478, the provisions for the Custody and Maintenance of Public Records, ORS

192.005 – 192.710, and of ORS 646.461 - 646.475. The non-disclosure of documents or of any portion of a document submitted by Contractor to Purchasing Agency may depend upon official or judicial determinations made pursuant to the foregoing laws. Contractor will be notified prior to Purchasing Agency’s release of documents to Entities other than participating agencies or other State agencies. Contractor shall be exclusively responsible for defending Contractor’s position concerning the confidentiality of the requested documents, at its own expense,

13. Recycled Products. Contractor will use, to the maximum extent economically feasible in the performance of this Contract, recycled paper (as defined in ORS

279A.010(1)(gg)), recycled PETE products (as defined in ORS 279A.010(1)(hh), and other recycled plastic resin products and recycled products (as “recycled product” is defined in ORS 279A.010(1)(ii).

14. Notices. Except as otherwise provided in a Order, any formal communications between the parties to or notices to be given under a Order will be given in writing by personal delivery of a facsimile transmission or the notice or mailing the notice, postage prepaid, at the address or number set forth on the Order. Any communication so addressed and mailed will be deemed to have been received five (5) calendar days after mailing. Any communication delivered by facsimile will be deemed to be given when a confirming report for the transmission is generated by the transmitting machine. To be effective against the receiving party, such facsimile transmission must be confirmed by telephone notice to the receiving party’s authorized representative, as set forth in the Order. Any communication or notice by personal delivery will be deemed to be given when actually received by the appropriate authorized representative.

As between Contractor and State with respect to this Addendum, the Primary Contacts of Contractor and State are set forth above.

15. Governing Law. This Addendum and resulting Contracts are governed by and construed in accordance with the laws of the State of Oregon, without regard to principles of conflicts of laws.

16. Jurisdiction and Venue. Any claim, action, suit or proceeding (collectively, “Claim”) between State or any other agency or department of the State of Oregon, and Contractor, that arises from or relates to this Addendum or a Order under this Addendum, will be brought and conducted solely and exclusively in the Circuit Court of Marion County for the State of Oregon; provided, however, if a Claim must be brought in a federal forum, then it will be brought and conducted solely and exclusively in the United States District Court of the District of Oregon. CONTRACTOR, BY EXECUTION OF THIS ADDENDUM

OR ACCEPTANCE OF A PURCHASE ORDER SUBMITTED PURSUANT TO THIS

ADDENDUM HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF SAID

COURTS. Nothing in this section will be construed as a waiver of the State of Oregon’s sovereign immunity with respect to any Claim, whether brought under State or Federal law, or in State or Federal Court or the consent to jurisdiction of any court.

Any Claims between Contractor and an Purchasing Agency other than the State of Oregon or State agency that arise from or are related to individual Orders or this Addendum will be brought and conducted solely and exclusively within the Circuit Court of the county in the State of Oregon in which such Purchasing Agency resides or has its principal office, or at Purchasing Agency’s option, within such other county as Purchasing Agency will be entitled to proceed under the venue laws of Oregon to bring or defend Claims. If any such Claim must be brought in a federal forum, then it will be brought and conducted solely and exclusively within the United States District Court for the District of Oregon.

17. Foreign Contractor. If Contractor is not domiciled in or registered to do business in the State of Oregon as of the effective date of this Addendum, Contractor will promptly provide to the Oregon Department of Revenue all information required by that Department relative to the Contract. An Purchasing Agency may withhold final payment under a Order until Contractor has provided the Oregon Department of Revenue with the required information.

18. Merger Clause; Waiver. This Addendum, including the Master Agreement and the exhibits attached to this Addendum, constitutes the entire agreement between the parties on the subject matter hereof, and supersede all prior agreements, oral or written.

There are no understandings, agreements, or representations, oral or written, between these parties that are not specified in this Addendum. No waiver, consent, modification or change of terms of this Addendum binds either party unless in writing and signed by both parties and all necessary State approvals have been obtained. Such waiver, consent, modification or change, if made is effective only in the specific instance and for the specific purpose given. The failure of State to enforce any provision of this Addendum does not constitute a waiver by the State of that or any other provision.

19. Independent Contractor. Contractor shall act at all times as an independent contractor and not as an agent or employee of Purchasing Agency. Contractor has no right or authority to incur or create any obligation for or legally bind Purchasing Agency in any way. Contractor is not an "officer", "employee", or "agent" of Purchasing Agency (or any other agency, office, or department of the State of Oregon), as those terms are used in ORS 30.265, and shall not make representations to third parties to the contrary.

Neither party shall make any statements, representations, or commitments of any kind or to take any action binding on the other except as provided for herein or authorized in writing by the party to be bound.

20. Access to Records. Contractor will maintain all fiscal records relating to Orders in accordance with generally accepted accounting principles and will maintain any other records relating to Orders in such a manner as to clearly document Contractor's performance thereunder. The Purchasing Agency, the State and its agencies, the Oregon Secretary of State Audits Division and their duly authorized representatives will have access to such fiscal records and to all other books, documents, papers, plans and writings of Contractor which relate to this Addendum to perform examination and audits and make excerpts and transcripts. To the extent provided by law, the federal government will be entitled to the same access as the State of Oregon and Purchasing Agencies. Contractor will retain and keep accessible all such fiscal records, books, documents, papers, plans, and writings for a minimum of six years, or such longer period as may be required by applicable law following final payment and termination of this Addendum, or until the conclusion of any audit, controversy or litigation arising out of or related to this Addendum, whichever date is later.

21. Assignment. Contractor shall not assign, transfer, or sublet rights, or delegate responsibilities under this Addendum, in whole or in part, without the prior written approval of DAS PS.

22. Severability. If any term or provision of this Addendum is declared by a court of competent jurisdiction to be illegal or in conflict with any law, 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 Addendum did not contain the particular term or provision held to be invalid.

23. Survival. Any terms of this Addendum, which by their nature are intended to survive termination or expiration including but not limited to warranty, indemnification, access to records, governing law, venue, consent to jurisdiction, termination and remedies provisions survive the termination or expiration of this Addendum.

24. Insurance. Within ten (10) days of the Effective Date, Contractor must provide insurance as set forth on Exhibit No. 2. No Orders may be placed or accepted until proof is provided that these requirements have been met.

25. Anticipated Amendments. The parties may need to amend this Addendum to modify selected terms, conditions, and price(s). This Addendum maybe modified by written document only.

EXHIBIT NO. 2

INSURANCE

Contractor shall obtain at Contractor’s expense the insurance specified in this Exhibit No. 2 prior to performing under this Addendum and shall maintain it in full force and at its own expense throughout the duration of this Addendum and all warranty periods.

Contractor shall obtain the following insurance from insurance companies or entities that are authorized to transact the business of insurance and issue coverage in State and that are acceptable to DAS PS. Coverage shall be primary and non-contributory with any other insurance and self-insurance. Contractor shall pay for all deductibles, self-insured retention and self- insurance, if any.

WORKERS’ COMPENSATION & EMPLOYERS’ LIABILITY

All employers, including Contractor, shall provide workers’ compensation insurance as required by applicable workers’ compensation laws for persons performing work under this Addendum including Employers’ Liability Insurance with limits not less than $500,000 each accident. Contractor shall require and ensure that each of its subcontractors complies with these requirements.

COMMERCIAL GENERAL LIABILITY:

Required by DAS PS Not required by DAS PS.

Commercial General Liability Insurance covering bodily injury, death and property damage in a form and with coverage that are satisfactory to the State. This insurance shall include personal injury liability, products and completed operations, and contractual liability coverage. Coverage shall be written on an occurrence basis in an amount of not less than $1,000,000.00 per occurrence. Annual aggregate limit shall not be less than $2,000,000.00.

AUTOMOBILE LIABILITY INSURANCE:

Required by DAS PS Not required by DAS PS.

Automobile Liability Insurance covering all owned, non-owned, or hired vehicles with a combined single limit of not less than $1,000,000.00 for bodily injury and property damage.

PROFESSIONAL LIABILITY:

Required by DAS PS Not required by DAS PS.

Professional Liability insurance covering any damages caused by an error, omission or any negligent acts related to the services to be provided under this Addendum in an amount not less than $ per occurrence. Annual aggregate limit shall not be less than $.

If coverage is on a claims made basis, then either an extended reporting period of not less than 24 months shall be included in the Professional Liability insurance coverage, or the Contractor shall provide Tail Coverage as stated below.

ADDITIONAL INSURED:

The Commercial General Liability insurance and Automobile Liability insurance required under this Addendum shall include the State of Oregon, its officers, employees and agents as Additional Insureds but only with respect to Contractor's activities to be performed under this Addendum.

TAIL COVERAGE:

If any of the required insurance is on a claims made basis and does not include an extended reporting period of at least 24 months, Contractor shall maintain either tail coverage or continuous claims made liability coverage, provided the effective date of the continuous claims made coverage is on or before the effective date of this Addendum, for a minimum of 24 months following the later of (i) Contractor’s completion and DAS PS’s acceptance of all Services required under this Addendum, or, (ii) The expiration of all warranty periods provided under this Addendum.

CERTIFICATE(S) AND PROOF OF INSURANCE:

Contractor shall provide to DAS PS Certificate(s) of Insurance for all required insurance before delivering any Goods and performing any Services required under this Addendum. The Certificate(s) shall list the State of Oregon, its officers, employees and agents as a Certificate holder and as Additional Insured, specify that Contractor shall pay for all deductibles, self-insured retention and self-insurance, if any, that all coverage shall be primary and non-contributory with any other insurance and self-insurance, and confirm that either an extended reporting period of at least 24 months is provided on all claims made policies or that tail coverage is provided. As proof of insurance DAS PS has the right to request copies of insurance policies relating to the insurance requirements in this Addendum.

NOTICE OF CHANGE OR CANCELLATION:

The contractor or its insurer must provide at least 30 days’ written notice to DAS PS before cancellation of, material change to, potential exhaustion of aggregate limits of, or non-renewal of the required insurance coverage(s).

INSURANCE REQUIREMENT REVIEW:

Contractor agrees to periodic review of insurance requirements by DAS PS under this Addendum and to provide updated requirements as mutually agreed upon by Contractor and DAS PS.

EXHIBIT NO. 3

CONTRACTOR TAX CERTIFICATION

The individual signing on behalf of Contractor hereby certifies and swears under penalty of perjury to the best of the individual’s knowledge that:

1. The number shown on this form is Contractor's correct taxpayer identification;

Federal Tax Number ______________________ Oregon Tax Number ______________________

2. Contractor is not subject to backup withholding because:

(i) Contractor is exempt from backup withholding,

(ii) Contractor has not been notified by the IRS that Contractor is subject to backup withholding as a result of a failure to report…