S-25900-00009579 RFPAttA~2.pdf

ATTACHEMENT A ‐ SAMPLE CONTRACT

BLANKET PURCHASE ORDER [BPO NUMBER]

THIRD‐PARTY EMPLOYER OF RECORD SERVICES

TABLE OF CONTENTS

RECITALS

BLANKET PURCHASE ORDER TERMS AND CONDITIONS

2.1 PURPOSE OF BPO

2.2 DEFINITIONS

2.3 EFFECTIVE DATE AND TERM

2.4 BPO DOCUMENTS

2.5 FIRM OFFER ESTABLISHED; PRICING CHANGES

2.6 TERMINATION OF BLANKET PURCHASE ORDER

2.7 ORDERING INSTRUMENTS FOR SERVICES

2.8 PAYMENT

2.9 PRODUCTS AND SERVICES; PRICING

2.10 INSURANCE REQUIREMENTS

2.11 MISCELLANEOUS

2.12 REPRESENTATIONS AND WARRANTIES

2.13 BPO DEFAULT

2.14 REMEDIES FOR DEFAULT

2.15 TERMINATION

2.16 CONTRACTOR’S COMPLIANCE WITH TAX LAWS

2.17 INDEMNITY

2.18 GOVERNING LAW

2.19 VENUE AND CONSENT TO JURISDICTION

2.20 BPO CONTRACT ADMINISTRATORS

2.21 AMENDMENT

2.22 NONDISCRIMINATION IN EMPLOYMENT

2.23 PAY EQUITY

2.24 OREGON FALSE CLAIMS ACT

2.25 INTEGRATION

PURCHASE ORDER TERMS AND CONDITIONS

3.1 NON-EXCLUSIVE CONTRACT

3.2 COMPENSATION

3.3 FUNDS AVAILABLE AND AUTHORIZED

3.4 INVOICING AND PAYMENT

3.5 PERFORMANCE, DELIVERY AND ACCEPTANCE

3.6 CONTRACTOR’S PERSONNEL

3.7 CONFIDENTIALITY / NON-DISCLOSURE

3.8 INDEPENDENT CONTRACTOR; TAXES AND WITHHOLDING

3.9 REPRESENTATIONS AND WARRANTIES

3.10 OWNERSHIP AND LICENSES

3.11 INDEMNITY

3.12 ASSIGNMENT OF ANTITRUST RIGHTS

3.13 SUSPENSION; TERMINATION

3.14 CONTRACT BREACH

3.15 REMEDIES FOR DEFAULT

3.16 COMPLIANCE WITH APPLICABLE LAW

3.17 CONTRACTOR’S COMPLIANCE WITH TAX LAWS

3.18 GOVERNING LAW

3.19 CLAIM VENUE AND CONSENT TO JURISDICTION

3.20 INSURANCE REQUIREMENTS

3.21 RECORDS MAINTENANCE; ACCESS

3.22 INTENDED BENEFICIARIES

3.23 FOREIGN CONTRACTOR

3.24 FORCE MAJEURE

3.25 SURVIVAL

3.26 TIME IS OF THE ESSENCE

3.27 NOTICE

3.28 SEVERABILITY

3.29 COUNTERPARTS

3.30 AMENDMENT; CHANGE ORDERS

3.31 NONDISCRIMINATION IN EMPLOYMENT

3.32 INTEGRATION; WAIVER

3.33 REPORTING

AUTHORIZED SIGNATURES

This contract or Blanket Purchase Order (“BPO”) is between the State of Oregon (“State”) acting by and through its Department of Public Safety Standards and Training (“DPSST”) on behalf of the Oregon-Idaho High Intensity Drug Trafficking Area (“OR-ID HIDTA”) and _________________, (“Contractor”) for Third Party Employer of Record (“EOR”) Services.

RECITALS

A) DPSST desires to engage Contractor through this BPO to make available to DPSST services, as described on Exhibit A (“Services”).

B) On ____________, DPSST issued RFP #S-25900-00009579 to provide authority to directly award contracts to Contractor and other providers of the Products and Services.

C) Contractor desires to perform the Services for DPSST and OR-ID HIDTA under the authority afforded in ORS 181A.410(2).

BLANKET PURCHASE ORDER TERMS AND CONDITIONS

DPSST and Contractor agree as follows:

2.1 Purpose of BPO. This BPO establishes terms and conditions applicable to Contractor and DPSST in connection with the Services, including but not limited to:

the form of the ordering instruments to be used by DPSST and Contractor to enter contracts for Services, purchase order(s) (“PO”);

the terms and conditions applicable to POs;

the process through which Contracts will be created; and the pricing applicable to POs.

DPSST and Contractor will enter into binding and enforceable contracts for Services only by execution of PO’s, substantially in the form attached hereto as Exhibit B.

Each PO will specify the Products to be delivered or Services to be performed, the associated deliverables to be delivered, and will incorporate the terms and conditions in section 3 as applicable to the PO.

2.2 Definitions. In addition to any other terms defined elsewhere in this BPO, the following defined terms apply:

2.2.1 “Blanket Purchase Order” means a Contract between DPSST and the Contractor for Services at agreed upon terms and pricing for use by DPSST on behalf of OR-ID HIDTA. Previously known as an Agency Price Agreement.

2.2.2 “Business Day” means any day Monday through Friday, 8:00 a.m. to 5:00 p.m., Pacific Time, excluding State of Oregon holidays and business closure days.

2.2.3 “Calendar Day” means any day on the Western calendar.

2.2.4 “Contract” means any Purchase Order or other agreed upon ordering instrument issued under this BPO.

2.2.5 “Deliverables” means all Products and items that Contractor is required to provide to DPSST under a PO as part of the Services, including Work Product.

2.2.6 “Services” means furnishing of labor as specified within this Contract and incorporated attachments.

2.2.7 “Work Product” means every invention, discovery, work of authorship, trade secret, or other tangible or intangible item and all intellectual property rights therein that Contractor is required to deliver to DPSST pursuant to the Services.

2.3 Effective Date and Term. This BPO is effective on the later of (i) ______, or (ii) the date that it has been executed by DPSST and Contractor and has been approved as required by applicable law (“Effective Date”). Unless terminated or extended, this BPO expires on December 31, 2026, (“BPO term”). DPSST and Contractor may extend this BPO by written agreement. BPO expiration or termination does not extinguish or prejudice DPSST’s right to enforce this BPO with respect to any Contractor breach or any default or defect in Contractor performance that has not been cured.

2.4 BPO Documents. This BPO includes the BPO and its exhibits which are attached and incorporated by reference. If a conflict, inconsistency, or ambiguity exists among any portion of this BPO and any other documents, then the issue must be interpreted in the following order of precedence:

2.4.1 This BPO less all exhibits;

2.4.2 Exhibit A, Description of Services and Pricing;

2.4.3 Exhibit B, Sample Purchase Order Form; and,

2.4.4 Exhibit C, Insurance Requirements.

2.5 Firm Offer Established; Pricing Changes.

2.5.1 Firm Offer Established. This BPO constitutes a firm offer by Contractor regardless of whether any PO for Services is executed. This BPO is enforceable as a firm offer pursuant to ORS 279B.140 for the BPO term specified in section 2.3, and all pricing in Exhibit A is valid until the BPO expires or is terminated, unless the pricing is changed according to subsection 2.5.2.

Notwithstanding ORS 72.2050, obligations under this BPO are not revocable by Contractor.

2.5.2 Pricing Changes. Contractor shall keep pricing specified in Exhibit A fixed for at least the first 12 full months of this BPO. Thereafter, DPSST and Contractor may adjust pricing no more than once annually by BPO amendment. Contractor shall submit all pricing increase requests to DPSST in writing and provide substantiating evidence that each request is based on demonstrable market changes impacting the cost of the Services. Pricing changes will apply to PO’s and amendments to PO’s entered on and after the effective date of the pricing change.

2.6 Termination of Blanket Purchase Order.

2.6.1 Parties’ Right to Terminate by Mutual Consent.

This BPO may be terminated at any time by mutual written consent of DPSST and Contractor.

2.6.2 DPSST Right to Terminate for Convenience.

DPSST may, in its sole discretion, terminate this BPO, in whole or in part, for any reason upon 30 Calendar Days written notice to Contractor.

2.6.3 Effect of Termination.

2.6.3.1 Once this BPO is terminated, Contractor shall not accept new Purchase Orders.

2.6.3.2 Termination of this BPO does not terminate the rights or obligations of any party to a PO executed before termination of this BPO.

2.7 Ordering Instruments for Services.

2.7.1 Ordering Instrument Form. DPSST must use a PO form substantially similar to the form attached as Exhibits B.

2.7.2 Ordering Instrument Negotiation. Prior to issuing a PO, DPSST and Contractor may negotiate the Products or Services to be included in the PO from the Description of Products and Services set forth in Exhibit A, including but not limited to the cost of the Products and Services. DPSST and Contractor may negotiate a fixed price or maximum amount payable for the Services under the PO based on the pricing specified in Exhibit A. Contractor’s pricing under any resulting PO shall not exceed the pricing specified in Exhibit A.

2.7.3 Ordering Instrument Content. To order Services, DPSST must submit a PO to the selected contractor that specifies all of the following:

2.7.3.1 Language stating that the PO is submitted under this BPO, the BPO number, and incorporating all terms and conditions of this BPO;

2.7.3.2 Clear description of the required Services and associated deliverables;

2.7.3.3 Rates and maximum amount payable for the Services (including travel and other expenses);

2.7.3.4 Required delivery schedule for the Services; and

2.7.3.5 Invoicing address.

2.7.4 Ordering Instrument Rejection. Contractor shall reject PO’s that do not comply with the requirements of this BPO.

2.7.5 Ordering Instrument Creation. Each fully executed PO creates a separate contract between DPSST and Contractor that is enforceable according to its terms and is independent of all other executed PO’s. Each PO consists only of the terms specified for POs in this BPO and no other terms, regardless of source. OR-ID HIDTA is an intended beneficiary under each PO between DPSST and Contractor.

2.8 Payment.

DPSST will pay Contractor for Products or Services and associated deliverables according to the payment methodology specified in the applicable PO. DPSST will pay Contractor only for Services that Contractor has delivered or completed, and OR-ID HIDTA has accepted.

2.9 Products and Services; Pricing.

2.9.1 Attached hereto as Exhibit A is a list of the Products and Services and applicable price available pursuant to this BPO.

2.9.2 Contractor and DPSST may agree to lower prices for Services. Those lower prices apply only to applicable PO between Contractor and Agency.

2.9.2.1 Price Decrease. DPSST shall be given the immediate benefit of any price decrease Contractor offers to any other customer. Contractor shall promptly notify DPSST of the amount and effective date of each decrease. This decrease applies to orders placed on or after the effective date of the decrease. Invoices must reflect prices in effect on the date DPSST’s PO was issued.

2.9.2.2 Should such decreased prices again increase during the term of the BPO, including extensions, DPSST shall honor the increase if acceptable documentation verifying the increase is submitted to DPSST. DPSST shall determine what constitutes acceptable documentation.

2.9.2.3 Contractor shall subtract from prices charged to DPSST any unit price decrease that has been achieved or gained by Contractor. Contractor shall give DPSST the immediate benefit of the decrease. Contractor shall promptly notify the DPSST Contract Administrator of the amount and effective date of the decrease.

2.10 Insurance Requirements. Contractor shall obtain insurance coverage as specified in Exhibit C and shall maintain the insurance throughout the term of this BPO and all POs.

2.11 Miscellaneous.

2.11.1 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 BPO, including, without limitation, its validity, interpretation, construction, performance, and enforcement.

2.11.2 Designation of Forum and Consent to Jurisdiction. Any party bringing a legal action or proceeding against any other party arising out of or relating to this BPO shall bring the legal action or proceeding in the Circuit Court of the State of Oregon, 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.

2.11.3 Amendments. No amendment to this BPO is valid unless it is in writing and signed by the parties.

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

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

2.11.6 Force Majeure. Neither party is responsible for delay or default caused by an event beyond the control of the party whose performance is interfered with, and, which by the exercise of reasonable diligence, the party is unable to prevent. Agency may terminate this BPO upon written notice after determining such delay or default will reasonably prevent successful performance of this BPO.

In the event of any such delay, Contractor’s obligations are suspended to the extent of and for the duration of such causes. However, Contractor shall take all good faith 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 BPO will be extended to enable Contractor, once such causes have been removed, to fulfill its obligations hereunder.

2.11.7 Entire Agreement. This BPO, 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.

2.11.8 Notices. Except as otherwise expressly provided in this BPO, any notices sent between the parties under this BPO are effective only if in writing and addressed to the Contract Administrators at the addresses set forth in section 2.2 below. A party may change its Contract Administrator upon written notice to the other party. The following methods of delivery between the parties may be used: Personal delivery, email or United States Postal Service (“USPS”) with postage prepaid.

For confirmation of delivery to the recipient, sender guidelines are as follows:

When choosing personal delivery, parties may consider their communication or notice received immediately. When choosing email, parties may consider their communication received upon reply to email by the recipient. However, if using email, the use of “read receipt” is not a valid form of delivery confirmation. When choosing to use USPS, parties may consider their communication received five Calendar Days after the date of the mailing.

2.11.9 Intended Beneficiaries. Other than is stated in section 2.7.5 above: Agency and Contractor are the only parties to this BPO and are the only parties entitled to enforce its terms. Nothing in this BPO 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 unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this BPO.

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

2.11.11 Certification of Compliance with Tax Laws. By signature on this BPO, Contractor certifies that it 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 BPO and any PO and any extensions thereof, 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, 318 and 319; (ii) Any tax provisions imposed by a political subdivision of this state that apply 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 apply 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 failure to comply with the provisions of this subsection 2.11.11 constitutes a material breach of this BPO and any PO. Any failure to comply entitles Agency to terminate this BPO or PO, to pursue and recover any and all damages that arise from the breach and the termination of this BPO or PO, and to pursue any or all of the remedies available under this BPO or PO, at law, or in equity, including but not limited to:

Termination of this BPO or PO 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 Agency’s setoff right, without penalty; and

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

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

2.11.13 Contractor shall retain, maintain, and keep accessible all records relevant to this BPO (the “Records”) for a minimum of six years, or such longer period as may be required by applicable law following expiration or termination of the BPO, or until the conclusion of any audit, controversy or litigation arising out of or related to the PO, whichever date is later. Financial Records will be kept in accordance with Generally Accepted Accounting Principles (GAAP).

During the record-retention period established in this Section, Contractor shall permit Agency, its duly authorized representatives, and the federal government access to the Records at a reasonable time and place for purposes of examination and copying.

2.12 Representations and Warranties. Contractor represents and warrants to DPSST that:

2.12.1 Contractor is not an “officer,” “employee,” or “agent” of DPSST, as those terms are used in ORS 30.265;

2.12.2 Contractor fully understands and will perform its obligations under this BPO;

2.12.3 Contractor is qualified to do business in the State of Oregon and will remain qualified throughout the BPO term;

2.12.4 Contractor is not in arrears in the payment of any monies due and owing the State of Oregon, or any department or agency thereof, including but not limited to the payment of taxes and employee benefits, and will not become so during the BPO;

2.12.5 Contractor has no undisclosed liquidated and delinquent debt owed to the State or any agency, board, commission, department, or division of the state;

2.12.6 Contractor will comply with all federal, state, and local laws, ordinances, rules, regulations, and executive orders, as may be adopted, or modified from time to time and as applicable to its performance under this BPO;

2.12.7 Contractor is not in violation of, charged with, nor, to the best of Contractor’s knowledge, under any investigation with respect to violation of any provision of any federal, state or local law, ordinance or regulation or any other requirement or order of any governmental or regulatory body or court or arbitrator applicable to provision of the Services, and Contractor’s provision of the Services shall not violate any such law, ordinance, regulation or order;

2.12.8 Contractor’s performance under this BPO to the best of Contractor's knowledge creates no potential or actual conflict of interest, as defined by ORS 244, for either Contractor or any Contractor personnel that will perform the Services under this BPO;

2.12.9 Contractor represents and warrants that the personnel providing services under this BPO are employees of Contractor; that Contractor withholds applicable income taxes from the pay of its employees; that Contractor pays workers’ compensation insurance premiums arising from the employment of its employees under this BPO; that Contractor makes all other applicable tax and related payments arising from that employment (including without limitation social security tax payments); and that Contractor provides employee benefits to its employees, including without limitation health insurance benefits, vacation benefits, and retirement benefits;

2.12.10 Contractor (to the best of Contractor’s knowledge), for a period of no fewer than six calendar years preceding the Effective Date, faithfully has complied with:

2.12.10.1 All tax laws of this state, including but not limited to ORS 305.380(4), ORS 305.620, and ORS chapters 316, 317, and 318;

2.12.10.2 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;

2.12.10.3 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

2.12.10.4 Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions.

2.12.11 Contractor possesses and will maintain at its own expense all required licenses, certifications, and permits necessary to deliver Services under this BPO and all POs;

2.12.12 Contractor has the power and authority to enter into and perform this BPO and all POs;

2.12.13 This BPO, when executed and delivered, is a valid and binding obligation of Contractor enforceable according to its terms;

2.12.14 Contractor has the skill and knowledge possessed by well-informed members of its trade or profession and Contractor will apply that skill and knowledge with care and diligence so Contractor and Contractor’s employees and any authorized subcontractors perform the Services described in this BPO in accordance with the highest standards prevalent in the industry or business most closely involved in providing the Services and Contractor shall, at all times during the term of this BPO and any PO, be qualified, professionally competent, and duly licensed to perform the Services;

2.12.15 The Products will materially conform to acceptance criteria set forth in the BPO and the PO, including the Statement of Work and any documentation provided by Contractor, and are free from error or defect that materially impairs their use, and be free from material defects in materials, workmanship, or design;

2.12.16 The Services are free of what are commonly defined as viruses, backdoors, worms, spyware, malware, and other malicious code that will hamper performance of the software, collect unlawful personally identifiable information on users, or prevent the software from performing as required under the terms and conditions of this BPO or a PO. Notwithstanding the foregoing, this representation and warranty do not include a disabling device that limits, suspends, or ends use of the Products or Services expressly permitted by the terms and conditions by the license under which it was provided: and

2.12.17 When used as authorized by this BPO or any PO, no Work Product infringes nor will DPSST or OR-ID HIDTA’s use, duplication or transfer of the Work Product infringe any copyright, patent, trade secret or other proprietary right of any third party.

The warranties set forth in this section 2.12 are in addition to, and not in lieu of, any other warranties provided in this BPO or in any PO.

2.13 BPO Default. Contractor is in default of this BPO if:

2.13.1 Contractor fails to honor pricing at least at or lower than the pricing specified in Exhibit A; or

2.13.2 Contractor has undisclosed liquidated and delinquent debt owed to the State of Oregon or any agency, board, commission, department, or division of the State; or

2.13.3 Contractor violates or fails to perform any covenant, representation, warranty, obligation, or certification under this BPO.

Before Contractor can be found in default of this BPO, DPSST shall first deliver a notice of default to Contractor. The notice must describe the specific nature of the default, cite the specific provisions of this BPO that have been violated, indicate whether the default can be cured, and specify the time period in which the default must be cured, if cure is permitted.

2.14 Remedies for Default. If Contractor is in default under section 2.13, DPSST may, at its option, pursue any or all remedies available to it under this BPO and at law or in equity, including without limitation, termination of this BPO pursuant to section 2.15 or pursuing a claim for damages, or undertaking collection by administrative offset, or garnishment if applicable, of all monies due for Services and Deliverables to recover liquidated and delinquent debt owed to the State of Oregon or any department or agency of the state. (offsets or garnishment may be initiated after the Contractor has been given notice if required by law)

2.15 Termination.

2.15.1 Mutual Termination. The parties may terminate this BPO upon the date specified in written agreement.

2.15.2 DPSST’s Right to Terminate. DPSST may, at its sole discretion, terminate this BPO as follows:

2.15.2.1 DPSST may terminate this BPO upon 30 calendar days’ prior written notice to Contractor or any later date as specified in the written notice; or

2.15.2.2 DPSST may terminate this BPO immediately if federal or state laws, rules, regulations, executive orders, or guidelines are modified in such a way that would prohibit any party’s performance under this BPO.

2.15.3 DPSST’s Right to Terminate for Cause. In addition to any other rights and remedies DPSST may have under this BPO, DPSST may terminate this BPO, in whole or in part, immediately upon written notice to Contractor of Contractor’s default under section 2.13.

2.15.4 Effect of BPO Termination or Expiration. Upon termination or expiration of this BPO, Contractor shall continue to provide the Products or Services and meet its obligations under all effective Contracts issued prior to BPO termination or expiration, unless such PO is otherwise terminated pursuant to its terms. The termination or expiration of this BPO will be without prejudice to the rights of the parties accrued up to the date of such termination or expiration.

2.16 Contractor’s Compliance with Tax Laws. Contractor must, throughout the term of this BPO 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” include all the provisions described in subsection 2.12.10.1 through 2.12.10.4 of this BPO.

2.16.1 Any violation of this subsection 2.16.1 constitutes a material breach of this BPO. Further, any violation of Contractor’s warranty in subsection 12.10.10 of this BPO, that Contractor has complied with the tax laws of this state and the applicable tax laws of any political subdivision of this state, also constitutes a material breach of this BPO. Any violation shall entitle DPSST to terminate this BPO, to pursue and recover any and all damages that arise from the breach and the termination of this BPO, and to pursue any or all of the remedies available under this BPO, at law, or in equity, including but not limited to:

2.16.1.1 Termination of this BPO, in whole or in part;

2.16.1.2 Exercise of the right of setoff, or garnishment, if applicable, and withholding of amounts otherwise due and owing to Contractor, in an amount equal to state’s setoff right, without penalty; and

2.16.1.3 Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief. DPSST shall be entitled to recover any and all damages suffered as the result of Contractor's breach of this BPO.

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

2.17 Indemnity. Contractor shall defend, save, hold harmless, and indemnify the State of Oregon, DPSST, and/or OR-ID HIDTA, and their officers, employees, and agents from and against all third party claims, suits, actions, losses, damages, liabilities, statutory penalties, costs, and expenses of any nature whatsoever, including personal injury, death, damage to real property, and damage to tangible or intangible personal property resulting from, arising out of, or relating to the intentional, reckless or negligent acts or omissions of Contractor or its officers, employees, subcontractors, or agents under this BPO or any PO including:

2.17.1 Any claim that Contractor, a subcontractor, Contractor’s staff, or a subcontractor’s staff are employees of the state or DPSST for any reason; and

2.17.2 Any claim against the state or OR-ID HIDTA, which, if true, would constitute a breach by Contractor of any of the representations, warranties, or covenants set forth in this BPO.

Without limiting the generality of the foregoing, Contractor will have no obligation to indemnify the State of Oregon, DPSST, and/or OR-ID HIDTA from and against any claims, suits, actions, losses, damages, liabilities, costs, and expenses attributable solely to the acts or omissions of DPSST or its officers, employees, or agents.

2.18 Governing Law. This BPO is governed by and construed according to the laws of the State of Oregon without regard to principles of conflict of laws.

2.19 Venue and Consent to Jurisdiction. Any claim, action, suit, or proceeding (collectively, “Claim”) between DPSST and/or OR-ID HIDTA and Contractor that arises from or relates to this BPO must be brought and conducted solely and exclusively within the Circuit Court of Marion County, State of Oregon; provided, however, if a Claim must be brought in a federal forum, then it must be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. CONTRACTOR, BY EXECUTION OF THIS BPO, HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF THE COURTS REFERENCED IN THIS SECTION 2.19. In no event may this section be construed as (i) a waiver by the State of Oregon of any form of defense or immunity, whether sovereign immunity, governmental immunity, immunity based on the eleventh amendment to the Constitution of the United States or otherwise, from any claim, or (ii) consent by the State of Oregon to the jurisdiction of any court.

2.20 BPO Contract Administrators. The BPO Contract Administrators for DPSST and for Contractor are the individuals identified in this section 2.20 or any other individual identified in writing as the BPO Administrator to the other party.

DPSST BPO Contract Administrator: Contractor BPO Contract Administrator:

Ned Walls, OR-ID HIDTA Deputy Director [name, address, contact information] 2110 Mission St SE, Suite 210 (503)569-1631 ned.walls@dpsst.oregon.gov

2.21 Amendment. This BPO may be amended, modified, or supplemented only by a written amendment signed by DPSST and Contractor. Any amendment that provides for additional Products or Services, goods, or other services may only provide for Products, Services, goods, or services directly related to the scope of Products and Services, goods, and services described in the procurement documents, and no amendment will be effective until all requisite signatures and approvals are obtained. Either DPSST or Contractor may request a change to this BPO, including all Exhibits hereto, by submitting a written proposal describing the desired change to the other party.

2.22 Nondiscrimination 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 BPO, to maintain the policy and practice in force during the entire BPO term.

2.23 Pay Equity. As required by ORS 279B.235, Contractor shall comply with ORS 652.220 and not unlawfully discriminate against any of its employees in the payment of wages or other compensation for work of comparable character on the basis of an employee’s membership in a protected class. “Protected class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability, or age. Contractor’s compliance with this section is a material term of this BPO, and Contractor’s failure to comply constitutes a breach entitling Agency to terminate this BPO or any Contract for cause.

Further, Contractor may not prohibit any of its employees from discussing the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person.

Contractor shall not retaliate against an employee who discusses the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person.

2.24 Oregon False Claims Act. Contractor acknowledges the Oregon False Claims Act, ORS 180.750 to 180.785, applies to any action by Contractor pertaining to this BPO and any Contract, including the procurement process relating to this BPO, which constitutes a "claim" (as defined by ORS 180.750(1)). By its execution of this BPO, Contractor certifies the truthfulness, completeness, and accuracy of any statement or claim it has made, it makes, it may make, or causes to be made that pertains to this BPO or any PO. In addition to other penalties that may be applicable, Contractor further acknowledges that if it makes, or causes to be made, a false claim or performs a prohibited act under the Oregon False Claims Act, the Oregon Attorney General may enforce the liabilities and penalties provided by the Oregon False Claims Act against Contractor. Contractor understands and agrees that any remedy that may be available under the Oregon False Claims Act is in addition to any other remedy available to the State or Agency under this BPO or any PO or any other provision of law.

2.25 Integration. This BPO and attached Exhibits constitute the entire agreement between the parties on the subject matter hereof. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this BPO.

PURCHASE ORDER TERMS AND CONDITIONS

These PO Terms and Conditions apply to all POs issued under this BPO.

3.1 Non‐Exclusive Contract. Contractor acknowledges and agrees that by executing this PO, DPSST is not granting to Contractor the exclusive right to perform the Services, or any other services, for DPSST. DPSST reserves the right to:

3.1.1 Enter into a purchase order with other entities to provide DPSST and/or OR-ID HIDTA with services that are the same or similar to those provided to Contractor under this BPO; and

3.1.2 Perform any or all the Services itself.

3.2 Compensation. Following Contractor’s delivery or completion, and OR-ID HIDTA’s acceptance of the Services, DPSST will pay Contractor as specified in this BPO, based on the pricing established in Exhibit A. Contractor represents that all pricing for Services under this BPO is equal to or better than the pricing specified in the BPO.

3.3 Funds Available and Authorized. Contractor will not be compensated for Products delivered or Services performed under this BPO by any other agency or department of the State of Oregon other than DPSST. DPSST believes it has sufficient funds currently available and authorized for expenditure to make payments under this BPO within DPSST’s biennial appropriation or limitation. Contractor understands and agrees that DPSST’s payments under this BPO are contingent on DPSST receiving appropriations, limitations, or other expenditure authority sufficient to allow DPSST, in the exercise of its reasonable administrative discretion, to continue to make payments under this BPO.

3.4 Invoicing and Payment

3.4.1 Invoices. Contractor shall submit invoices for accepted Products or completed and accepted Services or Deliverables according to the payment schedule as set forth . Contractor shall submit invoices to DPSST as designated in the PO. Contractor shall include the BPO number and applicable PO number on all invoices. Contractor also shall include a description of all Services performed, or Deliverables delivered, applicable pricing, total amount invoiced and the address for payment.

3.4.2 Payment. DPSST shall pay all undisputed amounts within 30 days from receipt of each invoice determined to be correct following DPSST’s review under subsection 3.4.3 Contractor may assess late payment charges only to the extent permitted by ORS 293.462.

3.4.3 Invoice Review / Dispute Process. DPSST will review each invoice and will either approve payment of the amount invoiced or notify Contractor of any errors or disputed charges. DPSST may withhold payment of any amounts that are disputed.

If an error or dispute arises concerning the amount charged in an invoice, DPSST will notify Contractor of the disputed charge. Upon notification of dispute, Contractor shall submit to DPSST all documentation DPSST requires to substantiate the amount charged.

DPSST, in its sole discretion, will determine if the supporting documentation provides sufficient substantiation for the disputed charges. If DPSST determines that the supporting documentation is sufficient, DPSST will notify Contractor and pay Contractor the amount charged in the invoice. If DPSST determines the supporting documentation supports payment of an amount less than originally invoiced, DPSST will notify Contractor of the amount DPSST believes is due under the invoice, and DPSST will pay the invoice in that lesser amount.

3.5 Performance, Delivery and Acceptance.

3.5.1 Responsibilities of Contractor. Contractor shall perform the Services in accordance with the standards and methodologies set forth in the Statement of Work and this PO. Contractor shall cooperate with DPSST and its designated third parties by providing access and information on applicable architecture, design, operating environment, interfaces and operating parameters as necessary.

3.5.2 Delivery and Review of Deliverables. Unless otherwise agreed, within 10 Business Days following Contractor’s delivery of Services or Deliverables, or both, DPSST will review the Services and Deliverables to determine whether the Services and Deliverables meet the PO requirements. If DPSST determines that the Services and Deliverables meet the PO requirements, DPSST will notify Contractor of DPSST’s acceptance.

If DPSST determines that the Services or Deliverables, or both, do not meet the PO requirements, DPSST will notify Contractor of DPSST’s rejection. Within 10 Business Days following Contractor’s receipt of DPSST’s rejection notice, Contractor shall revise and redeliver to DPSST the rejected Services or Deliverables at Contractor’s sole expense to ensure that the Services or Deliverables meet the PO requirements as determined by DPSST. DPSST will thereafter review of the revised Services or Deliverables and notify Contractor of DPSST’s acceptance or rejection within 10 Business Days following DPSST’s receipt of Contractor’s revised Services or Deliverables. This process is an iterative process.

Contractor’s failure to deliver Services or Deliverables that meet the specifications and performance standards after DPSST’s second review may constitute a default by Contractor, if DPSST chooses not to allow Contractor any further attempts to revise and redeliver the Services or Deliverables, or both. Upon such default, Contractor shall refund to DPSST all amounts paid by DPSST for the Deliverables or the Services related to such Deliverables. All such refunds are in addition to, and not in lieu of, any other remedies DPSST may have for Contractor’s default.

3.5.3 Business Continuity Management and Disaster Recovery. Contractor shall deliver, maintain, and upgrade as necessary, Business Continuity Management and Disaster Recovery Plan and Procedures for the Products and Services, acceptable to DPSST. In the event of a disaster, Contractor shall comply with the provisions of and deliver the Products or Service according to the Business Continuity Management and Disaster Recovery Plan and Procedures.

3.5.4 Performance Metrics and Service Level Guarantees. In its provision of the Products and Services, Contractor shall meet the performance metrics and service level guarantees set forth in the PO. Contractor shall provide, maintain, and upgrade any hardware and related equipment, and software provided by Contractor and required for delivery and operation of the Products and Services. If Contractor fails to meet a performance standard, Contractor shall

(i) investigate, assemble and preserve pertinent information with respect to, and report on the causes of, the failure, including performing a root cause analysis of the failure; (ii) advise DPSST, as and to the extent requested by DPSST, of the status of remedial efforts being undertaken with respect to such failure; (iii) minimize the impact of and correct the problem and begin meeting the performance standard; and (iv) take appropriate preventive measures so that the failure does not recur.

Contractor shall pay the damages or issue service credits as agreed to in this BPO if Contractor fails to provide the Services as and when required by this BPO or fails to meet the performance metrics and service level guarantees specified in this BPO. This section does not limit DPSST’s rights with respect to the events upon which DPSST may rely as a basis for termination of this BPO for cause.

3.5.5 Responsibilities of DPSST. If this BPO requires DPSST and/or OR-ID HIDTA to provide any information or resources, and DPSST and/or OR-ID HIDTA fails to provide the requisite quality or quantity of such resources, or fails to provide such resources in a timely manner for a period that does not exceed 10 Calendar Days, Contractor’s sole remedy is an extension of the applicable delivery dates corresponding to the delay. If DPSST and/or OR-ID HIDTA’s failure to provide such resources exceeds 10 Calendar Days, and Contractor can show to the reasonable satisfaction of DPSST that DPSST and/or OR-ID HIDTA’s failure has resulted in an unavoidable increase in the cost of the Services required for the Statement of Work, then Contractor will be entitled to recover from DPSST the reasonable amount of such increased costs. Contractor's right to delay applicable delivery dates or recover for increased costs may be exercised only if Contractor provides DPSST with reasonable notice of DPSST and/or OR-ID HIDTA’s failure and Contractor uses commercially reasonable efforts to perform notwithstanding DPSST and/or OR-ID HIDTA’s failure to perform.

3.6 Contractor’s Personnel.

3.6.1 Key Persons. Contractor’s Key Persons are identified on BPO Exhibit A or PO. Contractor acknowledges and agrees that a significant reason DPSST selected Contractor is because of the special qualifications of each Key Person. DPSST is engaging the expertise, experience, judgment, and personal attention of such Key Persons. Neither Contractor nor any Key Person shall delegate performance of the duties and obligations of such Key Person under this PO to any other employee, agent, or subcontractor of Contractor unless DPSST provides prior written consent to such delegation. Contractor shall not reassign or transfer a Key Person to other duties or positions so that the Key Person is no longer available to provide DPSST with that Key Person’s services unless DPSST provides prior written consent to the reassignment or transfer, or the reassignment or transfer is required based on the termination of employment, illness, death, disability, or other similar cause.

If Contractor requests DPSST’s consent to a delegation, reassignment, transfer, or other replacement of a Key Person, DPSST may meet with the Key Person and review the qualifications of the proposed substitute personnel before providing its consent or rejecting such replacement. Any such replacement shall have substantially equivalent or better qualifications than the Key Person being replaced. Contractor shall not charge DPSST, and DPSST will not pay, for any replacement Key Person while that Key Person acquires the necessary skills and knowledge to continue the Services. Such period of non-charge will be agreed upon by the parties, but not extend for more than 28 Calendar Days. All replacement personnel approved by DPSST are deemed Key Persons and this PO is deemed amended to include those Key Persons.

3.6.2 Subcontracts. Contractor shall not enter into any subcontracts for any of the Services without DPSST’s prior written consent. In addition to any other provisions DPSST may require, Contractor shall include in any permitted subcontracts a requirement that the subcontractor be bound by sections 3.4, 3.5, 3.7, 3.8, 3.10, 3.11, 3.13, 3.16, 3.19, 3.31, and 3.32 of this PO as if the subcontractor were the Contractor. DPSST’s consent to any subcontractor shall not relieve Contractor of any of its duties or obligations.

3.6.3 Successors and Assigns. Contractor shall not assign or transfer any of its interest herein without DPSST’s prior written consent. This PO is binding upon and shall inure to the benefit of DPSST and Contractor, and their respective successors and permitted assigns.

3.6.4 Cooperation. Contractor understands and agrees that, as part of this BPO, Contractor may be required to work with other DPSST contractors who may be working on this or similar projects. DPSST and Contractor acknowledge and agree that this cooperation is essential to the mutual goal of both parties for accurate and valuable use by DPSST. Contractor shall create and maintain a cooperative working relationship between and among DPSST and other entities and their respective representatives involved in representing DPSST’s priorities at the federal and statewide levels, to further the interests of DPSST to result in the Services begin successfully completed on time and within budget.

In the event of a conflict between contractors who must cooperate, contractors shall notify the DPSST’s Contract Administrator and abide by DPSST’s directions.

3.6.5 DPSST Facilities and Networks; Access and Security. DPSST shall permit Contractor and Contractor personnel access to DPSST facilities and networks, provided Contractor’s Services necessitate the Contractor and Contractor personnel obtain access to said facilities and networks and the Contractor and Contractor personnel comply with all DPSST security and access policies, rules, procedures, and regulations for access to DPSST’s facilities and networks.

3.7 Confidentiality / Non‐Disclosure.

3.7.1 Information. Each party acknowledges that it and its employees or agents may, in the course of performing its responsibilities under this BPO, be exposed to or acquire information that is confidential to the other party or the other party’s clients. Any and all information of any form obtained by one party or its employees or agents in the performance of this BPO is confidential information of the other party (“Confidential Information”). The parties shall treat any reports or other documents or items (including software) which result from the use of the Confidential Information by the recipient of such information with respect to confidentiality in the same manner as the Confidential Information. Confidential Information does not include information that (i) is or becomes (other than by disclosure by the party acquiring such information) publicly known or is contained in a publicly available document; (ii) is furnished by the party disclosing such information to others without restrictions similar to those imposed by this BPO; (iii) is rightfully in the receiving party’s possession without the obligation of nondisclosure prior to the time of its disclosure under this BPO; (iv) is obtained from a source other than the discloser without the obligation of confidentiality, (v) is disclosed with the written consent of the disclosing party, or; (vi) is independently developed by employees or agents of the receiving party who can be shown to have had no access to the Confidential Information.

3.7.2 Duties of Care. The recipient of Confidential Information shall hold Confidential Information in strict confidence, using at least the same degree of care that it uses in maintaining the confidentiality of its own Confidential Information. The recipient shall not copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give or disclose Confidential Information to third parties or use Confidential Information for any purposes whatsoever other than required by law or otherwise as contemplated by this BPO or reasonably related thereto, including without limitation the use by DPSST and/or OR-ID HIDTA contractors who need to access or use the Confidential Information for any valid business purpose, and to advise each of its employees and contractors of their obligations to keep Confidential Information confidential.

3.7.3 Prevention of Unauthorized Use or Disclosure. Each party shall use commercially reasonable efforts to assist the other in identifying and preventing any unauthorized use or disclosure of any Confidential Information.