SERVICES PO Terms and Conditions~17.pdf

STATE OF OREGON – SERVICES TERMS AND CONDITIONS

1. ACCEPTANCE OF DELIVERED SERVICES: If Agency rejects the Services, then Agency shall give Contractor a written notice of the reasons for the rejection and the method for curing, if any.

2. PAYMENT: (a) Contractor shall send invoices to Agency at Agency’s address, including details and at a frequency as agreed upon with Agency.

Contractor’s invoice shall include at a minimum: the Contract number; Services performed, Service dates, what was delivered, the rates (as applicable), the total amount due, and the payment address. (b) Agency shall pay Contractor, in accordance with the Compensation and Payment Methodology, for Services delivered under this Contract and accepted by Agency. Contractor shall look solely to Agency for payment. Contractor shall not be compensated by anyone else. (c) Contractor agrees that Agency’s payment is contingent on Agency receiving enough funding and other expenditure authority to allow the payment. (d) Contractor’s claims to Agency for overdue payments on invoices are subject to ORS 293.462.

3. INSURANCE: Contractor shall obtain and maintain the following insurance coverage:

• Workers’ Compensation: Contractor shall comply with ORS 656.017 and provide workers’ compensation coverage for subject workers, unless exempt under ORS 656.126(2). Contractor shall ensure that its Subcontractors, if any, comply with these requirements.

• Commercial General Liability: Contractor shall provide and maintain insurance covering bodily injury and property damage, written on an occurrence basis in an amount of not less than $1,000,000 per occurrence. The policy(ies) must name the State of Oregon as additional insured.

4. TERMINATION: The parties may terminate this Contract at any time by mutual written consent. Agency may terminate this Contract for its convenience upon written notice to Contractor. Agency or Contractor may terminate this Contract immediately or at a later designated date upon written notice to the other party, if the other party is in breach. Contractor shall stop performance under this Contract as directed by Agency in any written notice of termination delivered to Contractor.

5. RECOVERY OF OVERPAYMENTS: IF BILLINGS UNDER THIS CONTRACT, OR UNDER ANY OTHER CONTRACT BETWEEN CONTRACTOR AND AGENCY, RESULT IN PAYMENTS TO CONTRACTOR TO WHICH CONTRACTOR IS NOT ENTITLED, AGENCY, AFTER GIVING WRITTEN NOTIFICATION TO CONTRACTOR, MAY WITHHOLD SUCH AMOUNTS FROM PAYMENTS DUE TO CONTRACTOR.

6. INDEMNIFICATION: CONTRACTOR SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND (SUBJECT TO ORS CHAPTER 180) THE STATE OF OREGON AND ITS AGENCIES, AND THEIR DIVISIONS, OFFICERS, EMPLOYEES, AGENTS AND MEMBERS, FROM ALL CLAIMS, SUITS OR ACTIONS OF ANY NATURE ARISING OUT OF OR RELATED TO THE ACTIVITIES OF CONTRACTOR, OR ITS OFFICERS, SUBCONTRACTORS, AGENTS OR EMPLOYEES UNDER THIS CONTRACT.

7. GOVERNING LAW, JURISDICTION, AND VENUE: This Contract is governed by Oregon law, without regard to principles of conflicts of law. Any claim, action, suit, or proceeding between the State of Oregon and the Contractor that relates to this Contract (“Claim”) shall be heard exclusively in the Circuit Court of Marion County for the State of Oregon. If the Claim must be brought in a federal forum, then it shall be heard exclusively in the US District Court for the District of Oregon. In no way will this Section or any other provision of this Contract be construed as a waiver by the State of Oregon of any form of defense, sovereign immunity, governmental immunity, immunity based on the Eleventh Amendment to the US Constitution, or other immunity, from any Claim or from the jurisdiction of any court. Contractor consents to the in personam jurisdiction of these courts.

8. FORCE MAJEURE: No party is responsible for delay or default caused by an event beyond its reasonable control. The Agency may terminate this Contract without Contractor liability upon written notice after determining the delay or default reasonably prevents performance of this Contract.

9. SUBCONTRACTS; ASSIGNMENT; SUCCESSORS: Contractor shall not assign, transfer, or subcontract rights or responsibilities under this Contract in whole or in part, without the prior written approval of the Agency. This Contract’s provisions are binding upon and inure to the benefit of the parties to the Contract and their respective successors and assigns.

10. ACCESS TO RECORDS: Contractor shall maintain all accounting records relating to this Contract according to GAAP. Contractor shall retain its accounting records and any other records relating to Contractor’s performance (“Records”) for six (6) years from termination or as otherwise required.

Contractor shall grant the State of Oregon and its agencies, the Secretary of State Audits Division, the federal government, and their duly authorized representatives’ access to the Records, including reviewing, auditing, copying, and making transcripts.

11. COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS: Contractor shall comply with all federal, state and local laws, regulations, executive orders, and ordinances applicable to the Contract or to the performance of the Services, as such laws, regulations, executive orders, and ordinances may be adopted, amended, or repealed from time to time. These laws, regulations, executive orders and ordinances are incorporated by reference herein to the extent that they are applicable to this Contract and required by law to be so incorporated. Agency’s performance under this Contract is conditioned upon Contractor's compliance with the provisions of ORS 279B.220, 279B.225, 279B.230, 279B.235 and 279B.270, which are incorporated by reference herein. Contractor shall, to the maximum extent economically feasible in the performance of this Contract, use recycled paper (as defined in ORS 279A.010(1)(gg)), recycled PETE products (as defined in ORS 279A.010(1)(hh)), and other recycled products (as "recycled product" is defined in ORS 279A.010(1)(ii)).

12. OWNERSHIP OF WORK PRODUCT: Every invention, discovery, work of authorship and other tangible or intangible item that Contractor is required to deliver to Agency under this Contract (collectively, “Work Product”) shall be the exclusive property of Agency. Agency and Contractor agree that all Work Product is “work made for hire” of which Agency is the author within the meaning of the United States Copyright Act. If for any reason any Work Product is not “work made for hire,” Contractor hereby irrevocably assigns to Agency any and all of its rights, title, and interest in all such Work Product, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Upon Agency's reasonable request, Contractor shall acquire such further rights and execute such further documents and instruments as are necessary to fully vest such rights in Agency.

Contractor forever waives any and all rights relating to the Work Product , including without limitation, any and all rights arising under 17 U.S.C. §106A or any other rights of identification of authorship or rights of approval, restriction or limitation on use or subsequent modifications.

13. AMENDMENTS; WAIVER: All amendments to this Contract must be in writing, signed by the both parties. The Agency’s failure to enforce any provision of this Contract is not a waiver or relinquishment by the Agency of its rights to such performance in the future or to enforce any other provisions.

14. SEVERABILITY: If a court of competent jurisdiction declares any provision of this Contract to be illegal or in conflict with law, the parties intend that the validity of the remaining terms and provisions not be affected, and that the rights and obligations of the parties be construed and enforced as if the Contract did not contain the particular terms of provision held to be invalid.

15. AWARD TO FOREIGN CONTRACTOR: If Contractor is not registered to do business or has no office in the State of Oregon, Contractor shall promptly provide to the Oregon Department of Revenue and the Secretary of State Corporation Division all information required by those agencies relative to this Contract. The Agency may withhold final payment under this Contract until Contractor has met this requirement.

16. INDEPENDENT CONTRACTOR: Contractor is not an officer, employee, or agent of the State of Oregon as those terms are used in ORS 30.265 or otherwise. If Contractor is currently performing work for the State of Oregon or the federal government, Contractor by performance of this Contract, represents and warrants that Contractor’s Services to be performed under this Contract create no potential or actual conflict of interest as defined by ORS Chapter 244 and that no statutes, rules or regulations of the State of Oregon or federal agency for which Contractor currently performs work would prohibit Contractor’s performance under this Contract. If compensation under this Contract is to be charged against federal funds, Contractor certifies that it is not currently employed by the federal government. Contractor is responsible for all federal and state taxes applicable to compensation paid to Contractor under this Contract, and unless Contractor is subject to backup withholding, Agency will not withhold from such compensation any amounts to cover Contractor’s federal or state tax obligations. Contractor is not eligible for any social security, unemployment insurance or worker’s compensation benefits from compensation paid to Contractor under this Contract, except as a self-employed individual. Contractor shall perform all Services as an independent contractor.

Agency reserves the right (i) to determine and modify the delivery schedule for the Services and (ii) to evaluate the quality of the Services and any Work Product, but Agency may not 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. Contractor is an independent contractor as defined in ORS 670.600.

17. BREACH: (a) Contractor breaches this Contract if Contractor: (i) ceases doing business on a regular basis, including but not limited to ceasing to do business on a regular basis as a result of insolvency, receivership, bankruptcy proceedings, or an assignment for the benefit of creditors; (ii) no longer holds a required license or certificate for Contractor’s performance; or (iii) commits any material breach under this Contract, and Contractor fails to cure any such breach as Agency may specify in the notice of breach. (b) Agency breaches this Contract if Agency: (i) fails to pay Contractor any amount owed under this Contract; or (ii) commits any material breach under this Contract, and Agency fails to cure any such breach as Contractor may specify in the notice of breach.

18. AGENCY REMEDIES: If Contractor is in breach under Section 17(a), Agency may, at its option, pursue any or all of the remedies available to it under this Contract and at law or in equity, including, but not limited to: (a) termination of this Contract under Section 4, (b) reducing or withholding payment for Services or Work Product that Contractor has failed to deliver within any scheduled completion dates or has performed inadequately or defectively, (c) requiring Contractor to perform, at Contractor’s expense, additional work necessary to perform the Statement of Work or meet performance standards, (d) suspending Contractor’s performance of the Services, (e) initiation of an action or proceeding for damages, specific performance, or declaratory or injunctive relief, or (f) exercise of its right of recovery of overpayments under Section 5 of this Contract or set-off, or both. These remedies are cumulative to the extent the remedies are not inconsistent, and Agency may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever.

19. CONTRACTOR REMEDIES: (a) If Agency is in breach under Section 17(b), and whether or not Contractor elects to exercise its right to terminate the Contract under Section3, Contractor's sole monetary remedy shall be (i) with respect to Services compensable at a stated rate, a claim for unpaid invoices, time worked within any limits set forth in this Contract but not yet invoiced, authorized expenses incurred and interest within the limits permitted under ORS 293.462, and (ii) with respect to deliverable-based Services, a claim for the sum designated for completing the deliverable multiplied by the percentage of work completed and accepted by Agency, less previous amounts paid and any claim(s) that Agency has against Contractor.

20. INTENDED BENEFICIARIES: State and Contractor are the only parties to this Contract and the only parties entitled to enforce the Contract.

21. INFORMATION PRIVACY/SECURITY/ACCESS: If the Services performed under this Contract require Contractor or, when allowed, its subcontractor(s), to have access to or use of any Agency computer system or other Agency Information Asset or Network and Information System for which Agency imposes security requirements, and Agency grants Contractor or its subcontractor(s) access to such Agency Information Assets or Network and Information Systems, Contractor shall comply, and require all subcontractor(s) to which Agency has granted such access to comply, with OAR 407-014-0300 through OAR 407-014-0320, as such rules may be revised from time to time. For purposes of this section, “Information Asset” and “Network and Information System” have the meaning set forth in OAR 407-014- 0305, as such rule may be revised from time to time.

22. MERGER CLAUSE/COUNTERPARTS: This Contract constitutes the entire agreement between the parties on the subject matter hereof. There are no understandings, agreements, or representation, oral or written, not specified herein, regarding this Contract. Any amendments to this Contract may be executed in several counterparts, all of which when taken together shall constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Each copy of an amendment so executed shall constitute an original.

23. FUNDS AVAILABLE AND AUTHORIZED: Contractor shall not be compensated for Services performed under this Contract by any other agency of the State of Oregon or the federal government. Agency certifies that it has sufficient funds currently authorized for expenditure to finance the costs of this Contract within Agency's current biennial appropriation or limitation. Contractor understands and agrees that Agency's payment for Services performed is contingent on Agency receiving appropriations, limitations, allotments and other expenditure authority sufficient to allow Agency, in the exercise of its reasonable administrative discretion, to continue to make payments under this Contract.

24. REPRESENTATIONS AND WARRANTIES: Contractor represents and warrants to Agency that: (a) Contractor has the power and authority to enter into and perform this Contract, (b) this is a valid and binding obligation of Contractor enforceable in accordance with its terms, (c) Contractor has the skill and knowledge possessed by well-informed members of its industry, trade or profession and Contractor will apply that skill and knowledge with care and diligence to perform the Services in a professional manner and in accordance with the highest standards prevalent in Contractor's industry, trade or profession

(d) Contractor shall, at all times during the term of this Contract, be qualified, professionally competent, and duly licensed to perform the Services, and

(e) Contractor prepared its proposal related to this Contract, if any, independently from all other proposers, and without collusion, fraud, or other dishonesty. The warranties set forth in this section are in addition to, and not in lieu of, any other warranties provided.

25. NOTICES: Except as otherwise expressly provided in this Contract, any notices to be given hereunder shall be given in writing by personal delivery, facsimile, or mailing the same, postage prepaid to Contractor or Agency at the address or number set forth in this Contract, or to such other addresses or numbers as either party may indicate pursuant to this section. Any notice so addressed and mailed by regular mail shall be deemed received and effective five days after the date of mailing.

Any notice delivered by facsimile shall be deemed received and effective on the day the transmitting machine generates a receipt of the successful transmission, if transmission was during normal business hours of the recipient, or on the next business day if transmission was outside normal business hours of the recipient. Notwithstanding the foregoing, to be effective against the other party, any notice transmitted by facsimile must be confirmed by telephone notice to the other party at number set forth in this Contract. Any communication or notice given by personal delivery shall be deemed effective when actually delivered to the addressee.

26. TIME IS OF THE ESSENCE: Contractor agrees that time is of the essence in Contractor’s performance of the Services under this Contract.

27. LIMITATION OF LIABILITIES: THE STATE OF OREGON SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL,OR RELIANCE DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING, BUT NOT LIMITED TO ANY LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST DATA, OR HARM TO BUSINESS), REGARDLESS OF THE FORSEEABILITY THEREOF, ARISING OUT OF OR RELATED TO THIS CONTRACT. CONTRACTOR HEREBY RELEASES THE STATE OF OREGON AND ITS AGENCIES AND THEIR

DIVISIONS, OFFICERS, EMPLOYEES, AGENTS AND MEMBERS FROM ANY SUCH CLAIMS.