Sample Contract-RHSDustCollection.pdf

DOUGLAS COUNTY SCHOOL DISTRICT NO. 4

DRAFT CONTRACT

This Services Agreement (“Agreement”) is entered into by and between the Douglas County School District No. 4-Roseburg (“District”), and Contractor(“Contractor”) and is effective as of the Effective Date (defined below).

RECITALS

A. District desires to engage a Contractor to provide Goods and Services for Roseburg

High School Woodshop Dust Collection System as set forth in the Statement of Work to enable District to achieve specific business and District mission objectives defined in this Agreement. To that end, District issued RFP 21-701 RHS Woodshop Dust Collection System.

B. Contractor is the successful Proposer to the RFP and District desires to engage

Contractor to perform the Services.

C. Contractor desires to provide the Goods and Services for District.

AGREEMENT

In consideration of the foregoing recitals and the mutual terms and conditions set forth below, District and Contractor agree as follows:

1. DEFINITIONS.

“Acceptance” means written confirmation by District that Contractor has completed a Deliverable according to the Acceptance Criteria and accepted for purposes of interim payment. The term is distinct from “Final Acceptance”

“Acceptance Criteria” means the criteria for accepting Deliverables required by this Agreement, including but not limited to all specifications and requirements in the Statement of Work, and the Performance Warranties set forth in Section 8.2.

“Agreement” means all terms and conditions herein and all Exhibits attached hereto.

“District Intellectual Property” means any intellectual property that is owned by District.

District Intellectual Property includes any derivative works and compilations of any District Intellectual Property.

“Authorized Representative” means a person representing a party to this Agreement who is authorized to make commitments and decisions on behalf of the party regarding the performance of this Agreement. Contractor’s Authorized Representative is the person so identified in Exhibit E. District’s Authorized Representative is the person so identified in Exhibit F.

“Business Days” means Monday through Friday, 7:30 a.m. to 4:30 p.m., Pacific Time, excluding State of Oregon holidays.

“Change Order” means a form of Agreement amendment pursuant to Article 17 that makes changes or modifications to the Statement of Work within the Scope of this Agreement

“Confidential Information” is defined in Section 7.1.

“Contractor Intellectual Property” means any intellectual property that is owned by Contractor and contained in or necessary for the use of the Deliverables. Contractor Intellectual Property includes Documentation, and derivative works and compilations of any Contractor Intellectual Property.

“Deliverables” means all Services and Work Product Contractor is required to deliver to District under this Agreement.

“Delivery Schedule” means that attribute of the Statement of Work setting forth the completion date of each Milestone and the delivery date for each Deliverable.

“Documentation” means all documents, including documents that are Deliverables described in the Statement of Work and includes, but is not limited to, any and all operator’s and user’s manuals, training materials, guides, commentary, listings, requirements traceability matrices and other materials that are to be delivered by Contractor under this Agreement.

“DOJ” means the Oregon Department of Justice.

“Effective Date” means the date on which this Agreement is fully executed and approved according to applicable laws, rules and regulations.

“Final Acceptance” is defined in Section 2.3.4.

“Intellectual Property Rights” is defined in Section 10.2.

“Key Persons” means Contractor’s Authorized Representative, the Project Manager and all other Contractor personnel designated in Exhibit E.

“Maximum Not-To-Exceed Compensation” is defined in Section 5.1.

“Milestone” means a specific group of Tasks or Deliverables identified as a Milestone in the Statement of Work.

“Project Manager” means Contractor’s representative who manages the processes and coordinates the Services with District’s Authorized Representative to ensure delivery of the Deliverables and completion of Milestones. Contractor’s Project Manager is the person so identified in Exhibit E.

“Proposal” means Contractor’s proposal in response to the RFP.

“RFP” means the Request for Proposals 21-701.

“Schedule of Deliverables” means that attribute of the SOW that describes each Task, and Deliverable, measurable attributes of each Deliverable and Milestone with identification of the goods, services, and activities that are associated with them, and a planned completion date for each Milestone and Deliverable.

“Services” means all effort to be expended by Contractor as set forth in the Statement of Work.

"Services Retention Amount" is defined in Section 5.3.1.

“Statement of Work” (SOW) means the document that describes the Goods and Services to be provided by Contractor including the Tasks, Deliverables and Milestones, the measurable attributes of each Deliverable, identification of the Deliverables and Services that are associated with each Task, and a completion date for each Milestone and Deliverable, the Payment Schedule for each Deliverable and Milestone, and any other items as agreed by the parties including Amendments pursuant to section 17.15, all attached hereto as Exhibit A.

“Task” means a segment of the Services to be provided by Contractor under this Agreement.

“Third Party Intellectual Property” means any intellectual property owned by parties other than District or Contractor and contained in or necessary for the use, or optimal use, of the Deliverables. Third Party Intellectual Property includes COTS Software owned by

Third Parties, and derivative works and compilations of any Third-Party Intellectual Property “Warranty Period” means the period that begins upon execution of this Agreement and ends 30 calendar days after the date of Final Acceptance.

"Work Product” means every invention, modification, discovery, design, development, customization, configuration, improvement, process, software program, work of authorship, documentation, formula, datum, technique, know-how, secret, or intellectual property right whatsoever or any interest therein (whether patentable or not patentable or registerable under copyright or similar statutes or subject to analogous protection) that is specifically made, conceived, discovered, or reduced to practice by Contractor or Contractor’s subcontractors or agents (either alone or with others) pursuant to the Agreement. Notwithstanding anything in the immediately preceding sentence to the contrary, Work Product does not include any District Intellectual Property, Contractor Intellectual Property or Third Party Intellectual Property.

2. SCOPE OF SERVICES

2.1. Performance and Delivery

2.1.1. Responsibilities of Contractor. Contractor shall provide the Goods and

Services and deliver the Deliverables according to this Contract including the Acceptance Criteria and the Statement of Work

2.2. If this Agreement requires District to provide any resources, and District fails to provide the requisite quality or quantity of such resources or fails to provide such resources in a timely manner but for a period not to exceed 30 days, Contractor's sole remedy shall be an extension of the applicable delivery dates corresponding to the delay caused by District's failure. If District's failure to provide such resources exceeds [30 thirty] days and Contractor can show to the reasonable satisfaction of District, that the District's failure has resulted in an unavoidable increase in the cost of the Services required for the Statement of Work then Contractor shall be entitled to recover from District the reasonable amount of such increased costs. Contractor's right to delay applicable delivery dates may be exercised only if Contractor provides District with reasonable notice of District's failure and Contractor uses Commercially Reasonable Efforts to perform notwithstanding District's failure to perform.

2.3. Delivery and Review of Deliverables

2.3.1. Contractor shall deliver Deliverables and complete Milestones as set forth in the Statement of Work by no later than the date or dates set for delivery in the Statement of Work. Delivery dates, both critical and non-critical, are set forth in the Statement of Work and are subject to District performing its responsibilities in a timely manner.

2.3.2. Contractor shall provide written notice to District upon delivery of a completed Deliverable to District. By no later than (i) [15 days] after receipt of such notice, or (ii) the date set forth in the Delivery Schedule for District’s review, District shall determine whether the Deliverable meets Acceptance Criteria set forth in the Agreement including the Statement of Work. If

District determines that the Deliverable meets, in all material respects, Acceptance Criteria, District shall notify Contractor of District’s Acceptance.

District’s acceptance of any Deliverable will not be construed as a waiver of District’s rights under this Agreement for any defect that was not discovered, or reasonably could have been discovered by District in reviewing such Deliverable.

2.3.3. If the District determines that a Deliverable does not meet, in all material respects, the Acceptance Criteria District shall notify Contractor in writing of District’s rejection of the Deliverable and describe in reasonable detail in such notice the District’s basis for rejection of the Deliverable. Upon receipt of notice of non-acceptance, Contractor shall, within a 15-day period, modify or improve the Deliverable at Contractor’s sole expense so that the Deliverable meets, in all material respects, Acceptance Criteria, and notify the District in writing that it has completed such modifications or improvements and re-tender the Deliverable to District. District shall thereafter review the modified or improved Deliverable within 15-days of receipt of the Contractor's delivery of the Deliverable. Failure of the Deliverable to meet in all material respects, the Acceptance Criteria after the second set of Acceptance Tests shall constitute a default by Contractor.

In the event of such default, District may either (i) notify Contractor of such default and instruct Contractor to modify or improve the Deliverables as set forth in this section 2.3.3, or (ii) notify Contractor of such default and instruct Contractor to cease work on the Deliverable, in which case Contractor shall refund to District all amounts paid by District related to such Deliverable.

Such refund shall be in addition to, and not in lieu of, any other remedies District may have for Contractor’s default.

2.3.4. Final Acceptance. Final Acceptance means the District has accepted all Agreement Deliverables and Change Orders in accord with this Article 2.

3. CONTRACTOR’S PERSONNEL.

3.1. Project Manager. Contractor shall designate one of the Key Persons as

Project Manager for the Services. The Project Manager shall be familiar with District’s business objectives of this Agreement. The Project Manager will participate with District in periodic review sessions and will provide at District’s request detailed progress reports that identify completed tasks and the status of the remaining Services as set forth in the Statement of Work.

3.2. Contractor’s Employees and Subcontractors. Contractor shall not use subcontractors to perform the Services unless specifically authorized to do so by District. Contractor represents that any employees assigned to perform the Services, and any authorized subcontractors performing the Services shall perform the Services in accordance with the warranties set forth in Article 8 of this Agreement

3.3. Key Persons. Contractor acknowledges and agrees that District selected Contractor, and is entering into this Agreement, because of the special qualifications of Contractor's Key Persons identified in Exhibit E. Contractor's Key Persons shall not delegate performance of their powers and responsibilities they are required to provide under this Agreement to another Contractor employee(s) without first obtaining the written consent of the District. Further, Contractor shall not re-assign or transfer the Key Persons to other duties or positions such that the Key Persons are no longer available to provide the District with their expertise, experience, judgment, and personal attention, without first obtaining the District's prior written consent to such re-assignment or transfer, which District shall not unreasonably withhold or delay. Notwithstanding the foregoing, Contractor may replace Key Persons without District’s consent in the event any Key Persons are no longer available due to death, illness, or termination of employment with Contractor. In the event Contractor requests that the District approve a re-assignment or transfer of the Key Persons, or if Contractor must replace Key Persons due to death, illness or termination of employment with the Contractor, the District shall have the right to interview, review the qualifications of, and approve or disapprove the proposed replacement(s) for the Key Persons. Any such replacement shall have substantially equivalent or better qualifications than the Key Person being replaced.

4. TERM.

This Agreement shall be effective on the Effective Date, and shall terminate on the later of the expiration of the Warranty Period, including any time period necessary to cure defects discovered during the Warranty Period

5. COMPENSATION.

5.1. Maximum Payment Amount. Notwithstanding any other provision of this

Contract to the contrary, the maximum, not-to-exceed compensation that District will pay to Contractor is $_____________ (the “Maximum Not-To-Exceed Compensation”), which includes payment for any allowable expenses for which Contractor may request reimbursement under this Contract.

5.2. Payment of Fixed Prices. Subject to the requirements of Sections 5.3 and 5.5, District shall pay to Contractor the fixed price for each Deliverable completed, delivered to and Accepted by District according to the Statement of Work.

5.3. . Retention. District shall be permitted to holdback an amount of not more than ten percent (10%) of all amounts invoiced and payable. District shall pay the then accrued Services Retention Amount to Contractor within thirty (30) days following Final Acceptance.

5.4. Expenses. District will not pay or reimburse any expenses incurred by

Contractor during the completion of the Services except as authorized in the

Statement Work Any such authorized expenses shall comply with the Oregon Travel Policy.

5.5. Invoices. District shall pay Contractor not more than once each month upon

Contractor’s submission of a detailed invoice that sets forth the Services performed and Deliverables accepted by District. Such invoices shall comply with the requirements of Sections 5.2, 5.3, and 5.4 and shall identify the Deliverables completed and Accepted by District for which Contractor seeks compensation and shall itemize and explain all authorized expenses for which reimbursement is claimed. The invoices also shall include the total amount invoiced to date by Contractor prior to the current invoice. Contractor shall submit invoices to District’s Authorized Representative. District will have the right to review each such invoice for compliance with the requirements of this Section 5.5 and any other relevant provisions of this Agreement. All payments to Contractor are subject to ORS 293.462.

5.6. Limit on Payments. Contractor shall not submit invoices for, and District shall not pay, any amount in excess of the Maximum Not-To-Exceed Compensation.

If this maximum amount is increased by amendment of this Agreement, pursuant to Section 17.15, the amendment must be fully effective before Contractor performs Services or delivers goods subject to the amendment. No payment will be made for any Services performed or goods delivered before the Effective Date or after termination of this Agreement.

6. OWNERSHIP RIGHTS.

6.1. Contractor Intellectual Property. Contractor retains ownership of all Contractor Intellectual Property that Contractor delivers to District pursuant to the Services performed under this Agreement. Contractor grants District a license to Contractor Intellectual Property as set forth in Exhibit G.

6.2. Work Product. Contractor owns all Work Product. Contractor grants District a perpetual non-exclusive, irrevocable, royalty-free, world-wide license to use, copy, display, distribute, transmit and prepare derivative works of Work Product, and to authorize others to do the same on District’s behalf.

6.3. Third Party Intellectual Property Unless otherwise specified in Exhibit A that

District, on its own, will acquire and obtain a license to Third Party Intellectual Property, Contractor shall secure on District’s behalf, in the name of District and subject to District’s approval, a license to Third Party Intellectual Property sufficient to fulfill the business objectives, requirements and specifications identified in this Agreement.

6.4. District Intellectual Property; Data and Background Information. District owns all District Intellectual Property and District data and background information provided to Contractor pursuant to this Agreement. District grants Contractor a non-exclusive, royalty-free, world-wide license to use, copy, display, distribute, transmit and prepare derivative works of District Intellectual Property and District data and background information only to fulfill the purposes of this Agreement.

District’s license to Contractor is limited by the term of the Agreement and the confidentiality obligations of this Agreement.

6.5. No Rights. Except as expressly set forth in this Agreement, nothing in this

Agreement shall be construed as granting to or conferring upon Contractor any right, title, or interest in any intellectual property that is now owned or subsequently owned by District. Except as expressly set forth in this Agreement, nothing in this Agreement shall be construed as granting to or conferring upon District any right, title, or interest in any Contractor Intellectual Property that is now owned or subsequently owned by Contractor.

6.6. Competing Services. Subject to the provisions of this Article 6, and

Contractor’s obligations with respect to Confidential Information, as defined in Article 7 nothing in this Agreement shall preclude or limit in any way the right of Contractor to: (i) provide the services similar to those contemplated in this Agreement, or, consulting or other services of any kind or nature whatsoever to any individual or entity as Contractor in its sole discretion deems appropriate, or

(ii) develop for Contractor or for others, deliverables or other materials that are competitive with those produced as a result of the Services provided hereunder, irrespective of their similarity to the Deliverables. Each party shall be free to utilize any concepts, processes, know-how, techniques, improvements, or other methods it may develop during performance under this Agreement free of any use restriction or payment obligation to the other.

6.7. Neither party grants the other the right to use its trademarks, trade names, service marks or other designations in any promotion or publication without prior written consent. Each party grants only the licenses and rights specified in this Agreement.

7. CONFIDENTIALITY AND NON-DISCLOSURE.

7.1. Confidential Information. Contractor acknowledges that it and its employees or agents may, in the course of performing the Services under this Agreement, be exposed to or acquire information that is confidential to District or District’s clients. Any and all information of any form obtained by Contractor or its employees or agents in the performance of this Agreement shall be deemed to be confidential information of District (“Confidential Information”). Any reports or other documents or items (including software) which result from the use of the Confidential Information by Contractor shall be treated in the same manner as the Confidential Information. Confidential Information shall be deemed not to include information that (a) is or becomes (other than by disclosure by Contractor) publicly known or is contained in a publicly available document; (b) is furnished by District to others without restrictions similar to those imposed by this Agreement; (c) is rightfully in Contractor’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Agreement; (d) is obtained from a source other than District without the obligation of confidentiality, (e) is disclosed with the written consent of District, or; (f) is independently developed by employees or agents of Contractor who can be shown to have had no access to the Confidential Information.

7.2. Non-Disclosure. Contractor agrees to hold Confidential Information in strict confidence, using at least the same degree of care that Contractor uses in maintaining the confidentiality of its own confidential information, and not to copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information to third parties (other than its subcontractors) or use Confidential Information for any purposes whatsoever other than the provision of services to District hereunder, and to advise each of its employees and agents of their obligations to keep Confidential Information confidential. Contractor shall use its commercially reasonable efforts to assist District in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limitation of the foregoing, Contractor shall advise District immediately in the event Contractor learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and Contractor will at its expense cooperate with District in seeking injunctive or other equitable relief in the name of District or Contractor against any such person. Contractor agrees that, except as directed by District, Contractor will not at any time during or after the term of this Agreement disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this Agreement, and that upon termination of this Agreement or at District’s request, Contractor will turn over to District all documents, papers, and other matter in Contractor's possession that embody Confidential Information.

7.3. Identity Theft. In the performance of the Agreement or Purchase Order

Agreement, Contractor may have possession or access to documents, records or items that contain “Personal Information” as that term is used in ORS 646A.602(11), including Social Security numbers. Personal Information is a type of Confidential Information that is highly sensitive and subject to additional protection. Therefore, prior to the receipt of, and during the period in which Contractor has possession of or access to, any Personal Information, Contractor shall have in place, a formal written information security program that provides safeguards to protect Personal Information from loss, theft, and disclosure to unauthorized persons, as required by the Oregon Consumer Identity Theft Protection Act, ORS 646A.600-646A.628.

7.3.1. In addition to and without limiting the generality of Sections 7.1 and 7.2, Contractor shall not breach or permit breach of the security of any Personal Information that is contained in any document, record, compilation of information or other item to which Contractor receives access, possession, custody or control under this Agreement. Contractor shall not disclose, or otherwise permit access of any nature, to any unauthorized person, of any such Personal Information. Contractor shall not use, distribute or dispose of any Personal Information other than expressly permitted by DAS, the Authorized Purchaser, required by applicable law, or required by an order of a tribunal having competent jurisdiction.

7.3.2. Contractor shall promptly report to the Authorized Purchaser any breach of security, use, disclosure, theft, loss, or other unauthorized access of any document, record, compilation of information or other item that contains Personal Information to which the Contractor receives access, possession, custody or control in the performance of this Agreement or Purchase Order

7.3.3. Contractor shall require the compliance of its employees and agents with this section

7.4. Security Policies / Non-Disclosure Agreement. Contractor at all times shall comply with District’s security policies which will be made available to Contractor upon request. Contractor shall upon District’s request provide a written non disclosure agreement and obtain such from Contractor’s employees or subcontractors performing Services under this Agreement.

7.5. Injunctive Relief. Contractor acknowledges that breach of this Article 7, including disclosure of any Confidential Information, will cause irreparable injury to District that is inadequately compensable in damages. Accordingly, District may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available. Contractor acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of District and are reasonable in scope and content.

7.6. Publicity. Contractor agrees that news releases and other publicity relating to the subject of this Agreement will be made only with the prior written consent of District.

8. CONTRACTOR’S REPRESENTATIONS AND WARRANTIES.

8.1. Contractor’s General Representations and Warranties. Contractor represents and warrants to District that:

8.1.1. Contractor has the power and authority to enter into and perform this

Agreement;

8.1.2. This Agreement, when executed and delivered, will be a valid and binding obligation of Contractor enforceable according to its terms;

8.1.3. Contractor will, at all times during the term of this Agreement, be qualified to do business in the State of Oregon, professionally competent and duly licensed to perform the Services;

8.1.4. 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.

8.1.5. Contractor’s performance under this Agreement 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 Agreement.

8.1.6. The Contractor Data and Tax Certification in the form attached hereto as

Exhibit C and the Certification Statement For Independent Contractor in the form attached hereto as Exhibit D, if applicable, are true and accurate as of the Effective Date, and Contractor will notify District in writing if any such data or certifications change during the term of this Agreement such that the attached Exhibits C or D, if applicable, are no longer true and accurate;

8.2. Contractor’s Performance Warranties. Contractor represents and warrants to

District that

8.2.1. (1)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 Agreement in accordance the highest standards prevalent in the industry or business most closely involved in providing the Services that Contractor is providing to District pursuant to this Agreement, and (2) following the date of completion of the Services, the Work Product and the Deliverables will conform to the Statement of Work and the Acceptance Criteria. Contractor specifically warrants that as to any Deliverable hereunder such Deliverable shall (a) be free from material errors caused by Contractor's failure to fulfill its obligations under this Agreement, and

(b) materially conform to all requirements and specifications contained in the Statement of Work and the Acceptance Criteria

8.2.2. Through the expiration of the Warranty Period, all Deliverables delivered and Services provided by Contractor to District, shall materially conform to the Acceptance Criteria set forth in this Agreement, including the Statement of Work and any Documentation provided by Contractor, shall be free from error or defect that materially impairs their use, and shall be free from defects in materials, workmanship and design.

8.2.3. Except as otherwise set forth in this Agreement, any subcontractors performing work for Contractor under this Agreement have assigned all of their rights in the Deliverables to Contractor or District and no third party has any right, title or interest in any Deliverables supplied to District under this

8.2.4. Contractor represent and warrants that it will maintain, operate and enforce, prior to the receipt of, and during the period in which Contractor has possession of or access to, any Personal Information, an active and effective information security program that at minimum complies with the requirements of the Oregon Identity Theft Protection Act (ORS 646A. 122

et. Seq.) to preserve the security and confidentiality of all Personal Information that is contained in any document, record, and compilation of information or other item to which Contractor receives access, possession, custody or control.

8.2.5. Warranties Cumulative. Contractor’s warranties provided in this Article 8 are in addition to and not in lieu of any other warranties provided in this Agreement, including any in the Proposal. All warranties provided for in this Agreement shall be cumulative, shall be deemed consistent and not in conflict, are intended to be given full force and effect and to be interpreted expansively to give the broadest warranty protection to District.

8.3. WARRANTIES EXCLUSIVE; DISCLAIMERS. THE WARRANTIES SET

FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL

OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, AND

CONTRACTOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES,

INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR

FITNESS FOR A PARTICULAR PURPOSE. CONTRACTOR DOES NOT

WARRANT THAT THE DISTRICT” SUSE OF THE PRODUCTS WILL BE

UNINTERRUPTED OR ERROR FREE

8.4. The warranties stated above will not apply to the extent that there has been misuse accident, modification, unsuitable physical or operating environment, operation in other than the specified operating environment, improper maintenance by District or a third party, or failure or damage caused by a product for which Contractor is not responsible.

9. LIMITATION OF LIABILITY.

9.1. EXCEPT FOR LIABILITY ARISING OUT OF OR RELATED TO (i) SECTION 10.1, (ii) SECTION 10.2, (iii) ARTICLE 7 OR (iii) CLAIMS FOR PERSONAL

INJURY, INCLUDING DEATH, OR DAMAGE TO REAL PROPERTY OR

TANGIBLE PERSONAL PROPERTY ARISING FROM THE NEGLIGENCE,

RECKLESS CONDUCT OR INTENTIONAL ACTS OF CONTRACTOR, ITS

OFFICERS, EMPLOYEES OR AGENTS, CONTRACTOR'S LIABILITY FOR

DAMAGES TO THE STATE FOR ANY CAUSE WHATSOEVER SHALL BE

LIMITED TO ONE AND ONE TIMES THE MAXIMUM-NOT-TO-EXCEED

AMOUNT OF THE AGREEMENT.

9.2. EXCEPT FOR LIABILITY TO THIRD PERSONS ARISING OUT OF OR

RELATED TO (i) SECTION 10.1, (ii) SECTION 10.2, (iii) ARTICLE 7 OR (iv)

CLAIMS FOR PERSONAL INJURY, INCLUDING DEATH, OR DAMAGE TO

REAL PROPERTY OR TANGIBLE PERSONAL PROPERTY ARISING FROM

THE NEGLIGENCE, RECKLESS CONDUCT OR INTENTIONAL ACTS OF

CONTRACTOR, ITS OFFICERS, EMPLOYEES OR AGENTS NEITHER PARTY

BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA,

PUNITIVE, INDIRECT, EXEMPLARY CONSEQUENTIAL OR INCIDENTAL

DAMAGES.

10. INDEMNITIES.

10.1. General Indemnity. Contractor shall defend, save, hold harmless, and indemnify the Douglas County School District No. 4 and their officers, employees and agents from and against all third party claims, suits, actions, losses, damages, liabilities, statutory penalties costs, and expenses for personal injury, including death, damage to real property and damage to tangible 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 Agreement; provided that Contractor shall have no obligation to indemnify Douglas County School District No. 4 from and against any claims, suits, actions, losses, damages, liabilities, costs and expenses attributable solely to the acts or omissions of District or the State of Oregon, and their officers, employees or agents.

10.2. IP Indemnity. In addition to and without limiting the generality of Section 10.1, Contractor expressly agrees to, indemnify, defend and hold the State of Oregon and its agencies, subdivisions, officers, directors, employees and agents harmless from any and all third party claims, suits, actions, losses, damages, liabilities, costs and expenses of any nature whatsoever resulting from, arising out of or relating to any claims that the Deliverables or use thereof infringe or violate any patent, copyright, trade secret, trademark, trade dress, mask work, utility design, or other proprietary right (collectively, “Intellectual Property Rights”) of any third party. If Contractor believes at any time that the Deliverables infringe a third party’s Intellectual Property Rights, Contractor may upon receipt of District’s prior written consent, which District shall not unreasonably withhold, (i) replace an infringing item with a non-infringing item that meets or exceeds the performance and functionality of the replaced item; or

(ii) obtain for District the right to continue to use the infringing item; or (iii) modify the infringing item to be non-infringing, provided that, following any replacement or modification made pursuant to the foregoing, the Deliverables continue to meet the requirements, specifications and Acceptance Criteria of this Agreement.. Contractor’s failure or inability to accomplish any of the foregoing shall be deemed a material breach of this Agreement, and District may pursue any rights and remedies available to it under this Agreement, including termination.

10.3. Control of Defense and Settlement. Contractor’s obligation to indemnify

District as set forth in Sections 10.1 and 10.2 is conditioned on District providing to Contractor prompt notification of any claim or potential claim of which District 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 10.1 or Section 10..2; however, neither Contractor nor any attorney engaged by Contractor shall defend the claim in the name of the State of Oregon or any District 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.

10.4. Damages to State Property and Employees. Contractor shall be liable for all claims, suits, actions, losses, damages, liabilities, costs and expenses for personal injury, including death, damage to real property and damage to tangible personal property of the State of Oregon or any of its employees 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 Agreement.

10.5. Insurance. Contractor shall provide insurance as required by Exhibit B.

11. Events of Default.

11.1. Default by Contractor. Contractor shall be in default under this Agreement if:

11.1.1. Contractor institutes or has instituted against it insolvency, receivership or bankruptcy proceedings which are not dismissed within 60 days of their commencement, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis; or

11.1.2. Contractor no longer holds a license or certificate that is required for

Contractor to perform the Services and Contractor has not obtained such license or certificate within thirty (30) business days after delivery of District’s notice or such longer period as District may specify in such notice;

or

11.1.3. Contractor commits any material breach of any covenant, warranty, obligation or certification under this Agreement, fails to perform the Services in conformance with the specifications and warranties provided herein, or clearly manifests an intent not to perform future obligations under this Agreement, and such breach or default is not cured, or such manifestation of an intent not to perform is not corrected by reasonable written assurances of performance within thirty (30) business days after delivery of District’s notice or such longer period as District may specify in such notice.

11.2. Default by District. District shall be in default under this Agreement if:

11.2.1. District fails to pay Contractor any amount pursuant to the terms of this

Agreement, and District fails to cure such failure within thirty (30) business days after delivery of Contractor’s notice or such longer period as Contractor may specify in such notice; or

11.2.2. District commits any material breach or default of any covenant, warranty, or obligation under this Agreement, fails to perform its commitments hereunder within the time specified or any extension thereof, and District fails to cure such failure within thirty (30) business days after delivery of Contractor’s notice or such longer period as Contractor may specify in such notice.

12. Remedies for Default.

12.1. District’s Remedies. In the event Contractor is in default under Section 11.1, District may, at its option, pursue any or all of the remedies available to it under this Agreement and at law or in equity, which include, without limitation:

12.1.1. termination of this Agreement under Section 13.2;

12.1.2. withholding all monies due for Services that Contractor is obligated but has failed to perform within thirty (30) days after District has notified Contractor of the nature of Contractor’s default;

12.1.3. initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief;

12.1.4. exercise of its right of setoff.

12.2. Remedies Cumulative These District remedies are cumulative to the extent the remedies are not inconsistent, and District may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever. If it is determined for any reason that Contractor was not in default under Section 11.1, the rights and obligations of the parties shall be the same as if this Agreement was terminated pursuant to Section 13.1.

12.3. Contractor’s Remedies. In the event District terminates the Agreement for convenience under Section 13.1, or in the event District is in default under Section 11.2 and whether or not Contractor elects to exercise its right to terminate the Agreement under Section 13.3, Contractor’s sole monetary remedy shall be a claim for (i) any unpaid invoices for Deliverables completed and accepted; and, (ii) for incomplete Deliverables an amount calculated by determining the percentage of Services completed on each unpaid Deliverable and applying that percentage to the price for the Deliverable set forth in the Statement of work, not to exceed amount for the Deliverable set forth in the Statement of Work, and authorized expenses incurred. If previous amounts paid to Contractor exceed the amount due to Contractor under this Section 12.3, Contractor shall pay any excess to District upon written demand.

13. Termination.

13.1. District’s Right to Terminate. District may, at its sole discretion, terminate this

Agreement, as follows:

13.1.1. District may terminate this Agreement, for its convenience upon thirty

(30) days’ prior written notice to Contractor.

13.1.2. District may terminate this Agreement if District fails to receive funding, appropriations, limitations or other expenditure authority at levels sufficient to pay for Contractor’s services;

13.1.3. District may terminate this Agreement if Federal or state laws, regulations, or guidelines are modified or interpreted in such a way that the performance of the Services under this Agreement is prohibited or District is prohibited from paying for such Services from the planned funding source;

13.1.4. District’s Right to Terminate for Cause. In addition to any other rights and remedies District may have under this Agreement, District may terminate this Agreement, in whole or in part, immediately upon Contractor’s default under Section 11.1.

13.2. Contractor’s Right to Terminate for Cause. Contractor may terminate this

Agreement upon District’s default under Section 11.2:

13.3. Return of Property. Upon termination of this Agreement for any reason whatsoever, Contractor shall immediately deliver to District all of District’s property (including without limitation District’s Confidential Information or any

Deliverables for which District has made payment in whole or in part) that are in the possession or under the control of Contractor in whatever stage of development and form of recordation such District property is expressed or embodied at that time. Any property or Deliverable returned or delivered to District pursuant to this Section shall be provided without the warranties set forth in Section 8.2, unless District has accepted the Deliverable pursuant to Section 2.3.

14. INDEPENDENT CONTRACTOR; TAXES AND WITHHOLDING.

14.1. Independent Contractor. Contractor shall perform all Services as an independent contractor. Although District reserves the right (a) to determine (and modify) the delivery schedule for the Services and (b) to evaluate the quality of the completed performance, District cannot and will not control the means or manner of Contractor’s performance. Contractor is responsible for determining the appropriate means and manner of performing the Services.

14.2. Declaration and Certification. Contractor by execution of this Agreement declares and certifies that (i) its performance of the Services creates no potential or actual conflict of interest as defined by ORS Chapter 244, for Contractor or any Contractor personnel who will perform Services under this Agreement, and

(ii) in the event that Contractor or its personnel are either employed by or performing services for the federal government, that no rules or regulations of the District for which Contractor or its personnel work or are employed prohibit Contractor or its personnel from providing the Services under this Agreement.

Contractor also declares and certifies by execution of this Agreement that it is not an “officer,” “employee,” or “agent” of District, as those terms are used in

ORS 30.265.

14.3. Responsible for Taxes. Contractor shall be responsible for all federal and state taxes applicable to compensation and other payments paid to Contractor under this Agreement and, unless Contractor is subject to backup withholding, District will not withhold from such compensation and payments any amount to cover Contractor’s federal or state tax obligations. Contractor is not eligible for any social security, unemployment insurance, or workers’ compensation benefits from compensation or payments paid to Contractor under this Agreement, except as a self-employed individual.

15. COMPLIANCE WITH APPLICABLE LAW. Compliance with Law Generally.

Contractor shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to the Agreement. Without limiting the generality of the foregoing, Contractor expressly agrees to comply with the following laws, regulations and executive orders to the extent they are applicable to the Agreement:

(i) Titles VI and VII of the Civil Rights Act of 1964, as amended; (ii) Sections 503 and 504 of the Rehabilitation Act of 1973, as amended; (iii) the Americans with Disabilities Act of 1990, as amended; (iv) Executive Order 11246, as amended; (v) the Health Insurance Portability and Accountability Act of 1996; (vi) the Age Discrimination in Employment Act of 1967, as amended, and the Age Discrimination Act of 1975, as amended; (vii) the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended; (viii) ORS Chapter 659, as amended; (ix) all regulations and administrative rules established pursuant to the foregoing laws; and (x) all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations. These laws, regulations and executive orders are incorporated by reference herein to the extent that they are applicable to the Agreement and required by law to be so incorporated. District’s performance under the Agreement is conditioned upon Contractor's compliance with the obligations of Contractors under ORS 279B.220, 279B.230 and 279B.235, which are incorporated by reference herein.

16. DISPUTE RESOLUTION.

16.1. Litigation. Any claim, action, suit, or proceeding (collectively, “Claim”) between District (or any other District or department of the State of Oregon) and Contractor that arises from or relates to this Agreement shall be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon; provided, however, if a Claim must be brought in a federal forum, then it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. In no event shall this section be construed as 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 from the jurisdiction of any court. CONTRACTOR

BY EXECUTION OF THIS AGREEMENT HEREBY CONSENTS TO THE IN

PERSONAM JURISDICTION OF THE COURTS REFERENCED IN THIS

SECTION 16.1.

16.2. Governing Law. This Agreement shall be governed by and construed according to the laws of the State of Oregon without regard to principles of conflict of laws.

17. MISCELLANEOUS PROVISIONS.

17.1. Order of Precedence. This Agreement consists of the following documents that are listed in descending order of precedence: (a) the terms and conditions of this Agreement, less it’s Exhibits; (b) Exhibit H; (c) the Statement of Work, Exhibit A, and; (d) Exhibit G; and Exhibits B, C, D, and E. The aforementioned Exhibits are by this reference incorporated in the Agreement.

17.2. Recycling. Recycling. Contractor shall, to the maximum extent economically feasible in the performance of the Agreement, use recycled paper (as defined in ORS 279A.010 (1) (ee)), recycled PETE products (as defined in ORS 279A.010

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

17.3. Subcontracts and Assignment. Contractor shall not enter into any subcontracts for any of the Services required by this Agreement or assign or transfer any of its interest in this Agreement without District’s prior written consent. Any proposed use of a subcontractor which is located outside the United States or use of subcontract labor or facilities located outside the United States must be called to the specific attention of District. District’s consent to any assignment or subcontract shall be timely and not unreasonably withheld.

District consent to assignment or subcontract does not relieve Contractor of any of its duties or obligations under this Agreement. The assignment of this Agreement, in whole or in part to a successor organization by merger or acquisition does not require the consent of the other. Contractor is also permitted to assign its rights to payments without obtaining District’s consent.

17.4. Successors and Assigns. The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns, if any.

17.5. No Third-Party Beneficiaries. District and Contractor are the only parties to this Agreement and are the only parties entitled to enforce its terms. Nothing in this Agreement gives, is intended to give, or shall 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 Agreement.

17.6. Funds Available and Authorized. Contractor shall not be compensated for

Services performed under this Agreement by any other District or department of the State of Oregon. District believes it has sufficient funds currently available and authorized for expenditure to finance the costs of this Agreement within District’s biennial appropriation or limitation. Contractor understands and agrees that District’s payment of amounts under this Agreement is contingent on District receiving appropriations, limitations, or other expenditure authority sufficient to allow District, in the exercise of its reasonable administrative discretion, to continue to make…