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I. GLOSSARY – The following definitions are applicable to all components of the Contract:
A. Acceptance: Approval and retention by the Ordering Agency of any products, supplies, services or
other Deliverables, delivered to fulfill Contract requirements.
B. Contracting Agency: The agency with which the Contractor enters into the Contract and that has
the authority to enforce the Terms and Conditions of this Contract. The Contracting Agency may
also be the Ordering Agency.
C. Default: The omission or failure to perform any obligation under this Contract.
D. Deliverable: Any Contractor-provided products, supplies, services, work or product described in the
specifications of the Contract.
E. Ordering Agency: The entity that purchases and accepts the products, supplies, services or other
Deliverables under this Contract and that is responsible for payment. The Ordering Agency may also
be the Contracting Agency.
F. State: The State of Ohio.
G. Time and Materials Contract: A Contract in which Contractor is paid (1) an hourly rate for labor
actually performed and (2) if applicable and with prior approval by the Ordering Agency, for the cost
of the materials or supplies actually used by the Contractor. Such rates and costs shall be
established through Contractor’s submission of a price sheet, written quote, estimate, or invoice, as
approved by the State. Hourly rates may include wages, overhead, general and administrative
expenses, and reasonable profit. Materials or supplies may include the Contractor’s direct and
indirect costs attributable to the work performed.
II. REGULATORY CONTRACT REQUIREMENTS
A. ANTITRUST. The State and the Contractor recognize that, in actual economic practice, overcharges
resulting from antitrust violations are usually borne by the State. The Contractor therefore assigns
to the State all state and federal antitrust claims and causes of action that the Contractor has or
acquires relating to the goods and services acquired under this Contract.
B. APPROPRIATION OF FUNDS. The State’s funds are contingent upon the availability of lawful
appropriations. If the General Assembly or any third-party who is providing funding fails at any time
to continue funding for the payments or any other obligations due by the State under this Contract,
the State will be released from its obligations on the date funding expires. If appropriations are
approved, the State may continue this Contract past the current biennium by issuing written notice
of continuation to the Contractor. Any obligations of the State are subject to Section 126.07 of the
Ohio Revised Code.
C. CAMPAIGN CONTRIBUTIONS. Unless this Contract was solicited by competitive bid pursuant to
Section 125.07 of the Ohio Revised Code, Contractor hereby certifies that all applicable parties are
in full compliance with Section 3517.13 of the Ohio Revised Code.
D. COMPLIANCE WITH LAW. The Contractor must comply throughout the duration of the Contract
with all applicable federal, state, local laws and Executive Orders while performing under this
Contract.
E. CONFLICT OF INTEREST/ETHICS. Contractor represents, warrants and certifies that it and its
employees engaged in the administration or performance of this Contract are knowledgeable of and
understand the Ohio Ethics and Conflict of Interest laws including but not limited to Chapter 102 and
Sections 2921.42 and 2921.43 of the Ohio Revised Code. Contractor further represents, warrants,
and certifies that neither Contractor nor any of its employees will do any act that is inconsistent with
such laws or otherwise presents a conflict of interest.
F. CONTRACTOR’S WARRANTY AGAINST AN UNRESOLVED FINDING FOR RECOVERY. The
Contractor warrants that the Contractor is not subject to an unresolved finding for recovery pursuant
to Section 9.24 of the Ohio Revised Code. If the warranty is false on the date the parties signed this
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Contract, the Contract is void ab initio and the Contractor shall immediately repay any funds paid
under this Contract.
G. DEBARMENT. Contractor represents and warrants that neither it, nor any of its subcontractors, are
debarred from consideration for contract awards by any governmental agency. If this representation
and warranty is found to be false, this Contract is void ab initio and the Contractor shall immediately
repay any funds paid under this Contract.
H. DRUG FREE WORKPLACE. The Contractor agrees to comply with all applicable state and federal
laws regarding drug-free workplace and shall make a good faith effort to ensure that all Contractor
employees, while working on State property, will not purchase, transfer, use or possess illegal drugs
or alcohol or abuse prescription drugs in any way.
I. EQUAL EMPLOYMENT OPPORTUNITY. The Contractor will comply with all state and federal laws
regarding equal employment opportunity and fair labor and employment practices, including Section
125.111 of the Ohio Revised Code and all related Executive Orders.
Before a contract can be awarded or renewed, an Affirmative Action Plan must be submitted to and
approved by the Ohio Department of Administrative Services, Equal Opportunity Division.
J. PROHIBITION OF THE EXPENDITURE OF PUBLIC FUNDS FOR OFFSHORE SERVICES. No
State Cabinet, Agency, Board or Commission will enter into any contract to purchase services
provided outside the United States or that allows State data to be sent, taken, accessed, tested,
maintained, backed-up, stored, or made available remotely outside (located) of the United States,
unless a duly signed waiver from the State has been attained. Notwithstanding any other terms of
this Contract, the State reserves the right to recover any funds paid for services the Contractor
performs outside of the United States for which it did not receive a waiver. The State does not waive
any other rights and remedies provided the State in the Contract.
The Contractor must complete the Contractor/Subcontractor Affirmation and Disclosure Form
affirming the Contractor understands and will meet the requirements of the above prohibition. During
the performance of this Contract, if the Contractor changes the location(s) disclosed on the
Affirmation and Disclosure Form, Contractor must complete and submit a revised Affirmation and
Disclosure Form reflecting such changes.
K. GOVERNING LAW. This Contract shall be governed by the laws of the State of Ohio, and the venue
for any disputes will be exclusively with the appropriate court in Franklin County, Ohio.
L. INDEPENDENT CONTRACTOR ACKNOWLEDGEMENT. It is fully understood and agreed that
Contractor is an independent contractor and is not an agent, servant, or employee of the State.
Contractor declares that it is engaged as an independent business and has complied with all
applicable federal, state, and local laws regarding business permits and licenses of any kind,
including but not limited to any insurance coverage, workers’ compensation, or unemployment
compensation that is required in the normal course of business and will assume all responsibility for
any federal, state, municipal or other tax liabilities. Additionally, Contractor understands that as an
independent contractor, it is not a public employee and is not entitled to contributions from the State
to any public employee retirement system.
Contractor acknowledges and agrees any individual providing personal services under this Contract
is not a public employee for purposes of Chapter 145 of the Ohio Revised Code. Unless Contractor
is a “business entity” as that term is defined in Section 145.037 of the Ohio Revised Code (“an entity
with five or more employees that is a corporation, association, firm, limited liability company,
partnership, sole proprietorship, or other entity engaged in business”), Contractor shall have any
individual performing services under the Contract complete and submit to the Ordering Agency the
Independent Contractor/Worker Acknowledgement form, available at https://www.opers.org/forms-
archive/2018-10-PED-ACKN-Independent-Contractor-Worker-Acknowledgment-Form-fillable.pdf.
Contractor’s failure to complete and submit the Independent Contractor/Worker Acknowledgement
form at the time Contractor executes this Contract shall serve as Contractor’s certification that
Contractor is a “business entity” as that term is defined in Section 145.037 of the Ohio Revised Code.
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M. REGISTRATION WITH THE SECRETARY OF STATE. Contractor certifies that it is one of the
following:
1. A company that is properly registered with the Ohio Secretary of State; or
2. A foreign corporation, not incorporated under the laws of the State of Ohio, but is registered with
the Ohio Secretary of State pursuant to Sections 1703.01 to 1703.31 of the Ohio Revised Code,
as applicable; or
3. Exempt from registration requirements of the Ohio Secretary of State.
N. TAXES. Pursuant to Section 5739.02 of the Ohio Revised Code, the State is exempt from sales tax.
O. TRADE. Pursuant to Section 9.76(B) of the Ohio Revised Code, Contractor warrants that Contractor
is not boycotting any jurisdiction with whom the State of Ohio can enjoy open trade, including Israel,
and will not do so during the Contract period.
The State of Ohio does not acquire supplies or services that cannot be imported lawfully into the
United States. The Contractor certifies that it, its subcontractors, and any agent of the Contractor or
its subcontractors, acquire any supplies or services in accordance with all trade control laws,
regulations or orders of the United States, including the prohibited source regulations set forth in
subpart 25.7, Prohibited Sources, of the Federal Acquisition Regulation and any sanctions
administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control. A
list of those sanctions by country can be found at https://www.treasury.gov/resource-
center/sanctions/Programs/Pages/Programs.aspx. These sanctions generally preclude acquiring
any supplies or services that originate from sources within, or that were located in or transported
from or through Cuba, Iran, Libya, North Korea, Syria, or the Crimea region of Ukraine.
P. USE OF MBE AND EDGE VENDORS. Section 125.081 of the Ohio Revised Code requires State
agencies to set-aside purchases for Minority Business Enterprises (MBE) and Executive Order 2008-
13S encourages use of Encouraging Diversity, Growth and Equity (EDGE) businesses. Therefore,
the State encourages the Contractor to purchase goods and services from Ohio certified MBE and
EDGE vendors.
III. CONTRACT CONSTRUCTION
A. TERM OF CONTRACT. The effective date of the Contract is the effective date stated in the Contract
or the date the Contract is fully executed, whichever is later. The Contract will remain in effect until
the earliest of: (1) the ending date stated in the Contract; (2) the Contract is fully performed by both
parties; (3) the Contract is canceled or terminated; or (4) the Contract expires at the end of a biennium
unless continued by the State.
This Contract may be renewed upon satisfactory performance of activities hereunder, appropriation
of funds by the Ohio General Assembly, and at the sole discretion of the State. The State will issue
a notice to the Contractor if the State decides to renew this Contract. The Contractor shall not
obligate resources in anticipation of a renewal until notice is provided.
B. CONTRACT AMENDMENTS / WAIVER.
1. AMENDMENTS. No change to any provision of this Contract will be effective unless it is in
writing and signed by parties to the Contract. However, the State may document non-material
changes in writing and provide notice to the Contractor. No “click-through,” “shrink-wrap,”
“browse-wrap,” or other terms that have not been specifically negotiated by the Contractor and
the State, whether before, on, or after the date of this Contract, will be effective to add or modify
the terms of this Contract, regardless of any party’s “acceptance” of those terms by electronic
means. No State employee has the authority to modify, amend, or supplement this Contract
through electronic means.
2. WAIVER. The failure of either party at any time to demand strict performance by the other party
of any of the terms of this Contract will not be a waiver of those terms or to any other terms of
this Contract. Waivers must be in writing to be effective, and either party may at any later time
demand strict performance.
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C. ASSIGNMENT / DELEGATION. The Contractor must not assign any of its rights nor delegate any
of its duties under this Contract without written consent of the State. Any assignment or delegation
not consented to may be deemed void by the State.
D. BINDING EFFECT. Subject to the limitations on assignment provided elsewhere in this Contract,
this Contract will be binding upon and inure to the benefit of the respective successors and assigns
of the State and the Contractor.
E. LANGUAGE CONSTRUCTION. This Contract will be construed in accordance with the plain
meaning of its language and neither for nor against the drafting party.
F. DAYS. When this Contract refers to days, it means calendar days, unless it expressly provides
otherwise.
G. HEADINGS. The headings in this Contract are for convenience only and will not affect the
interpretation of any of the Contract terms and conditions.
H. INJUNCTIVE RELIEF. Nothing in this Contract is intended to limit the State’s right to injunctive relief
if such is necessary to protect its interests or to keep it whole.
I. NOTICES. For any notice under this Contract to be effective the notice must be made in writing and
delivered to the appropriate contact provided in the Contract.
J. ORDER OF PRIORITY. If there is any inconsistency or conflict between these Standard Terms and
Conditions and any provision incorporated by reference or included by the Contractor, these
Standard Terms and Conditions will prevail.
K. PUBLICITY. The Contractor shall not do the following without prior, written consent from the State:
1. Advertise that the Contractor is doing business with the State;
2. Use this Contract as a marketing or sales tool; or
3. Affix any advertisement or endorsement, including any logo, graphic, text, sound, video, and
company name, to any State-owned property, application, or website, including any website
hosted by Contractor or a third party.
L. SEVERABILITY. If any provision of the Contract or the application of any provision is held by a court
to be contrary to law, the remaining provisions of the Contract will remain in full force and effect.
M. SUBCONTRACTING. The State recognizes that it may be necessary for the Contractor to use a
subcontractor to perform a portion of the work under the Contract. In those circumstances, the
Contractor shall submit a list identifying the Contractor’s subcontractors. The Contractor may not
enter into subcontracts related to the Contract after award without written approval from the State. If
any change occurs during the term of the Contract, that requires a change to identified
subcontractors, the Contractor shall amend its list of subcontractors and request written approval
from the State. The State reserves the right to reject any subcontractor submitted by the Contractor.
All subcontracts will be at the sole expense of the Contractor and the Contractor will be solely
responsible for payment of its subcontractors. The Contractor assumes responsibility for all sub-
contracting and third-party manufacturer work performed or product delivered under the Contract. In
addition, all subcontractors agree to be bound by all of the Terms and Conditions and specifications
of the Contract. The Contractor will be the sole point of contact with regard to all contractual matters.
N. SURVIVORSHIP. All sections herein relating to payment, confidentiality, license and ownership,
indemnification, maintenance, publicity, warranties and limitations on damages shall survive the
termination of this Contract.
O. COUNTERPARTS. This Contract may be executed simultaneously in two or more counterparts, each
of which will be deemed an original, but all of which together will constitute one and the same
instrument.
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IV. ORDER AND PAYMENT PROVISIONS
A. CERTIFICATION OF FUNDS/PURCHASE ORDER REQUIREMENTS. None of the duties or
obligations in this Contract are binding on the State, and the Contractor will not begin performance
on this Contract, until all of the following conditions are met:
1. All statutory provisions under the Ohio Revised Code have been met.
2. All necessary funds are made available by the appropriate Ordering Agency.
3. If applicable, an official State of Ohio Purchase Order (P.O.) has been issued from the
appropriate Ordering Agency.
4. If required, the Controlling Board of Ohio has approved the purchase in accordance with Section
127.16 of the Ohio Revised Code.
B. CONTRACT ORDERS. Ordering Agencies will order supplies or services under this Contract from
the Contractor directly. The Contractor may receive orders made by Ordering Agencies by
telephone, facsimile, electronically, in person, payment card (if applicable) or purchase order from
authorized employees of the Ordering Agency. Neither the Ordering Agency nor the Contracting
Agency will be responsible for orders placed by unauthorized employees.
C. INVOICE REQUIREMENTS. The Contractor or dealer, authorized to submit invoices, must submit
an original invoice to the office designated in the purchase order. The Contractor will only be
compensated for the Deliverables accepted by the State.
To be a proper invoice, the invoice must include the following:
1. The purchase order number authorizing the delivery of supplies or services;
2. State of Ohio Contract Number (if applicable);
3. Agency Name;
4. Agency Billing Address;
5. Delivery location of supplies or services;
6. Contractor Name;
7. Contractor Address;
8. Contractor’s Unique Invoice Number;
9. Date that services were provided or that supplies were delivered;
10. Itemization of supplies or services provided, including cost;
11. For leases, the invoice must also include the payment number (e.g., 1 of 36);
12. For time and material Contracts, the invoice must reflect labor hours actually worked and, if applicable,
supplies used; and;
13. Clear statement of total payment expected.
D. PAYMENT DUE DATE AND PROCESS. Unless otherwise stated in this Contract and in accordance
with Section 126.30 of the Ohio Revised Code payments under this Contract will be due on the 30th
calendar day after the date of actual receipt of a proper invoice in the office designated to receive
the invoice. The date payment is issued by the State will be considered the date payment is made.
Payment of an invoice by the State will not prejudice the State’s right to object to or question that or
any other invoice or matter in relation thereto. The State’s preferred method of payment is by
electronic funds transfer. However, the Ordering Agency may also make payment by State of Ohio
payment card or by warrant issued by the Auditor of State. At the time of Contract award, Contractor
must be able to accept all forms of payment from the State and Ordering Agency.
E. REIMBURSABLE EXPENSES. The State will not pay reimbursable expenses unless specifically
identified in the Contract. The Contractor will assume all expenses that it incurs in the performance
of this Contract that are not identified as reimbursable.
F. TRAVEL. Any travel that the Contractor requires to perform its obligations under this Contract will
be at the Contractor’s expense. The State will pay for any additional travel that it requests only with
prior written approval. The State will pay for all additional travel expenses that it requests in
accordance with Section 126.31 of the Ohio Revised Code and Rule 126-1-02 of the Ohio
Administrative Code.
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V. LIABILITY PROVISIONS
A. GENERAL REPRESENTATIONS AND WARRANTIES. The Contractor warrants that:
1. The recommendations, guidance, and performance of the Contractor under this Contract will be
in accordance with the industry’s professional standards, the requirements of this Contract and
without any material defect.
2. No Deliverable will infringe on the intellectual property rights of any third party.
3. All warranties are in accordance with the Contractor’s standard business practices.
4. The Deliverables are merchantable and fit for the particular purpose described in this Contract
and will perform substantially in accordance with its user manuals, technical materials, and
related writings.
5. The Deliverables comply with all governmental, environmental and safety standards.
6. The Contractor has the right to enter into this Contract.
7. The Contractor has not entered into any other contracts or employment relationships that restrict
the Contractor’s ability to perform under this Contract.
8. The Contractor will observe and abide by all applicable laws and regulations, including those of
the State regarding conduct on any premises under the State’s control.
9. The Contractor has good and marketable title to any Deliverable delivered under this Contract
for which title passes to the State.
10. The Contractor has the right and ability to grant the license granted in any Deliverable for which
title does not pass to the State.
11. The Contractor warrants that the Contractor has not and will not enter into any contracts without
written approval of the State to perform substantially identical services for the State such that
the Project duplicates the work done or to be done under the other contracts.
The Contractor must notify the State in writing immediately upon the discovery of any breach of the
warranties given above, or if any work of the Contractor or any Deliverable fails to comply with these
warranties, and the Contractor is so notified in writing, the Contractor will correct such failure in a
commercially reasonable time or as specified in the Contract. If the Contractor fails to comply, the
Contractor will refund the amount paid for the Deliverable. The Contractor will also indemnify the
State for any direct damages and claims by third parties based on breach of these warranties.
Any other express warranties offered by the Contractor shall be a minimum of one year from
acceptance or the Contractor’s standard warranty whichever is longer.
B. INDEMNITY. The Contractor must indemnify the State for all liability and expense resulting from
bodily injury to any person (including injury resulting in death), damage to tangible or real property,
or disclosure of State Data including personally identifiable information and State sensitive
information arising out of the performance of this Contract, provided that such bodily injury, property
damage, or disclosure is due to the negligence or other tortious conduct of the Contractor, its
employees, agents, or subcontractors. The Contractor will not be responsible for any damages or
liability to the extent caused by the negligence or willful misconduct of the State, its employees, other
contractors, or agents.
The Contractor must also indemnify, release, protect, and hold the State harmless from any claim of
infringement of a copyright, patent, trade secret, or similar intellectual property right based on the
State’s proper use of any Deliverable under this Contract. This obligation of indemnification will not
apply where the State has modified or misused the Deliverable and the claim of infringement is based
on the modification or misuse. If a successful claim of infringement is made, or if the Contractor
reasonably believes that an infringement claim that is pending may actually succeed, the Contractor
must take one (1) of the following four (4) actions within an acceptable timeframe:
1. Modify the Deliverable so that the Deliverable is no longer infringing;
2. Replace the Deliverable with an equivalent or better item;
3. Acquire the right for the State to use the infringing Deliverable as intended; or
4. Remove the infringing Deliverable and refund the fee the State paid for such Deliverable and
any other affected Deliverable.
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The State agrees to give the Contractor notice of any such claim as soon as reasonably practicable
and to give the Contractor the authority to settle or otherwise defend any such claim upon
consultation with and approval by the Office of the Ohio Attorney General.
C. INSURANCE. Until all obligations under this Contract are satisfied, and without limiting Contractor’s
indemnification obligations herein, Contractor shall procure and maintain, for the duration of the
Contract, the insurance policies set forth below. Contractor shall procure and maintain insurance
against claims for injuries to persons or damages to property which may arise from or in connection
with the performance of the services hereunder by the Contractor, its agents, representatives, or
employees. Contractor shall also procure and maintain insurance for claims arising out of their
services including, but not limited to, loss, damage, theft or other misuse of data, infringement of
intellectual property, invasion of privacy and breach of data. All commercial insurance required shall
be provided by insurers with a rating of not less than A-VII from A.M. Best or a comparable rating
agency.
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): written on an “occurrence” basis, including products and
completed operations, property damage, bodily injury and personal and advertising injury with
limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the
general aggregate limit shall apply separately to this project/location or the general aggregate
limit shall be twice the required occurrence limit. Defense costs shall be outside the policy limit.
2. Automobile Liability: covering Code 1 (any auto), or if Contractor has no owned autos, Code 8
(hired) and 9 (non-owned), with a limit no less than $1,000,000 per accident for bodily injury and
property damage.
3. Workers’ Compensation insurance as required by the State of Ohio, or the state in which the
work will be performed, with Statutory Limits, and Employer’s Liability Insurance with a limit of
no less than $1,000,000 per accident for bodily injury or disease. If Contractor is a sole
proprietor, partnership or has no statutory requirement for workers’ compensation, Contractor
must provide a letter stating that it is exempt and agreeing to hold the State harmless from loss
or liability for such.
The insurance obligations under this Contract shall be the minimum insurance coverage
requirements and/or limits shown in this Contract. Any insurance proceeds in excess of or broader
than the minimum required coverage and/or minimum required limits, which are applicable to a given
loss, shall be available to the State of Ohio. No representation is made that the minimum insurance
requirements of this Contract are sufficient to cover the obligations of the Contractor under this
Contract.
The insurance policies are to contain, or be endorsed to contain, the following provisions:
1. Additional Insured Status
Except for Workers’ Compensation and Professional Liability insurance, the State of Ohio, its
officers, officials and employees are to be covered as additional insureds with respect to liability
arising out of work or operations performed by or on behalf of the Contractor including materials,
parts, or equipment furnished in connection with such work or operations. Coverage can be
provided in the form of an endorsement to the Contractor’s insurance.
2. Primary Coverage
For any claims related to this Contract, the Contractor’s insurance coverage shall be primary
insurance. Any insurance or self-insurance maintained by the State of Ohio, its officers, officials
and employees shall be excess of the Contractor’s insurance and shall not contribute with it.
3. Umbrella or Excess Insurance Policies
Umbrella or excess commercial liability policies may be used in combination with primary policies
to satisfy the limit requirements above. Such umbrella or excess commercial liability policies
shall apply without any gaps in the limits of coverage and be at least as broad as and follow the
form of the underlying primary coverage required above.
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4. Notice of Cancellation
Contractor shall provide State of Ohio with 30 days written notice of cancellation or material
change to any insurance policy required above, except for non-payment cancellation. Material
change shall be defined as any change to the insurance limits, terms or conditions that would
limit or alter the State’s available recovery under any of the policies required above. A lapse in
any required insurance coverage during this Contract shall be a breach of this Contract.
5. Waiver of Subrogation
Contractor hereby grants to State of Ohio a waiver of any right to subrogation which any insurer
of said Contractor may acquire against the State of Ohio by virtue of the payment of any loss
under such insurance. Contractor agrees to obtain any endorsement that may be necessary to
affect this waiver of subrogation, but this provision applies regardless of whether or not the State
of Ohio has received a waiver of subrogation endorsement from the insurer.
6. Deductibles and Self-Insured Retentions
Deductibles and self-insured retentions must be declared to and approved by the State. The
State may require the Contractor to provide proof of ability to pay losses and related
investigations, claims administration and defense expenses within the retention. The policy
language shall provide, or be endorsed to provide, that the deductible or self-insured retention
may be satisfied by either the named insured or the State.
7. Claims Made Policies
If any of the required policies provide coverage on a claims-made basis:
a. The Retroactive Date must be shown and must be before the date of the Contract or the
beginning of contract work.
b. Insurance must be maintained and evidence of insurance must be provided for at least five
(5) years after completion of the Contract work.
c. If coverage is canceled or non-renewed, and not replaced with another claims-made policy
form with a Retroactive Date prior to the Contract effective date, the Contractor must
purchase “extended reporting” coverage for a minimum of five (5) years after completion of
contract work. The Discovery Period must be active during the Extended Reporting Period.
Verification of Coverage. Contractor shall furnish the State of Ohio with original certificates and
amendatory endorsements or copies of the applicable policy language effecting coverage required
by this clause. All certificates and endorsements are to be received and approved by the State of
Ohio before work commences. However, failure to obtain the required documents prior to the work
beginning shall not waive the Contractor’s obligation to provide them. The State of Ohio reserves the
right to require complete, certified copies of all required insurance policies, including endorsements
required by these specifications, at any time.
Subcontractors. Contractor shall require and verify that all subcontractors maintain insurance
meeting all the requirements stated herein, and Contractor shall ensure that State of Ohio is an
additional insured on insurance required from subcontractors.
Special Risks or Circumstances. State of Ohio reserves the right to modify these requirements,
including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special
circumstances.
D. LIMITATION OF LIABILITY. Notwithstanding any limitation provisions contained in the documents
and materials incorporated by reference into this Contract, the parties agree as follows:
1. Neither party will be liable for any indirect, incidental or consequential loss or damage of any
kind including but not limited to lost profits, even if the parties have been advised, knew, or
should have known of the possibility of damages.
2. The Contractor further agrees that the Contractor shall be liable for all direct damages due to
the fault or negligence of the Contractor.
E. PRODUCT RECALL. In the event product delivered has been recalled, seized, or embargoed and/or
has been determined to be misbranded, adulterated, or in the case of consumable product, found to
be unfit for human consumption by the packer, processor, manufacturer or by any state or federal
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regulatory agency, the Contractor shall notify the Contracting Agency and all Ordering Agencies
within two business days after notice has been given. The Contractor shall, at the option of the
Ordering Agency, either reimburse the purchase price or provide an equivalent replacement product
at no additional cost. The Contractor shall be responsible for removal and/or replacement of the
affected product within a reasonable time as determined by the Ordering Agency. At the option of
the Ordering Agency, the Contractor may be required to reimburse storage and handling fees to be
calculated from time of delivery and acceptance to actual removal. The Contractor will bear all costs
associated with the removal and proper disposal of the affected product. Failure to reimburse the
purchase price or provide equivalent replacement product will be considered a default.
VI. PERFORMANCE AND COMPLIANCE
A. AUDITS. The Contractor must keep all financial records in a manner consistent with Generally
Accepted Accounting Principles (GAAP) or equivalent accounting principles. Additionally, the
Contractor must keep separate business records for this project, including records of disbursements
and obligations incurred that must be supported by contracts, invoices, vouchers and other data as
appropriate.
During the period covered by this Contract and until the expiration of three (3) years after final
payment under this Contract, the Contractor agrees to provide the State, or any authorized
representatives providing financial support to the work undertaken hereunder, with access to and the
right to examine any books, documents, papers and records of the Contractor involving transactions
related to this Contract.
The Contractor must, for each subcontract in excess of $2,500, require its subcontractors to agree
to the same provisions of this Section. The Contractor may not artificially divide contracts with its
subcontractors to avoid requiring subcontractors to agree to this provision. This provision does not
apply to contracts where federal funds are used and the federal government requires audits of all
subcontracts regardless of the amount of the contract.
The Contractor must provide access to the requested records at the location specified by the State
no later than five (5) business days after the request by the State, the State’s designee or any party
with audit rights. If an audit reveals any material deviation from the Contract requirements, any
misrepresentations, or overcharge to the State or any other provider of funds for the Contract, the
State or other party will be entitled to recover damages as well as the cost of the audit.
B. F.O.B. DESTINATION/ACCEPTANCE. The Contractor must provide Deliverables under this
Contract F.O.B. Destination. The place of destination will be specified by the Ordering Agency on
the agency’s purchase order or other ordering document. Cost of the freight must be borne and paid
by the Contractor unless otherwise stated.
All risk of loss, regardless of the cause, will remain with the Contractor until title to the Deliverable
passes to the State. Unless otherwise provided in this Contract, the State will determine whether the
Contractor provided each Deliverable required in this Contract and has fully met all work
requirements of this Contract. Title to any Deliverables will pass to the State on Acceptance of the
Deliverable.
C. RETURNED GOODS. When the use of this Contract involves the purchase of goods, the following
applies:
1. Returned goods, when due to Contractor error (i.e. over-shipment, defective merchandise,
unapproved substitution, etc.), shall be returned to the Contractor at the Contractor’s expense.
The Contractor shall make arrangements to remove the returned goods from the Ordering
Agency premises within seven (7) calendar days after notification. The Contractor shall not
apply any restocking or other charges to the Ordering Agency. At the option of the Ordering
Agency, replacement items may be accepted and will be shipped within seven (7) calendar
days of notification. Failure of the Contractor to arrange for return of the items within the
specified time will result in the items being deemed as abandoned property and the Ordering
Agency will dispose of accordingly.
2. For orders of custom manufactured items, the Contractor must provide a production sample of
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the item to the Ordering Agency for acceptance. The production sample must be identical to
the item to be provided. The Ordering Agency will provide written acceptance of the item prior
to the Contractor continuing with production. Once delivery and acceptance has been
completed and the Ordering Agency determines for any reason that any remaining quantities
will not be used, the agency may request the return of the custom manufactured items.
Acceptance of the return of custom manufactured items will be at the option of the Contractor.
Failure of the Contractor to provide a production sample and obtain written approval from the
Ordering Agency will result in the Contractor bearing all responsibility and costs associated with
the return of these goods.
3. Returned goods of regular catalog stock merchandise, when due to agency error (i.e. over
purchase, discontinued use, inventory reduction, etc.) will be accepted by the Contractor if
notice is given by the Ordering Agency within six (6) months of delivery and acceptance. All
items to be returned must be unused and in their original containers and in suitable condition
for resale. Return of regular stock catalog merchandise, when delivery and acceptance exceed
six (6) months will be at the option of the Contractor.
D. CUSTOM DELIVERABLES. All custom work done by the Contractor and covered by this Contract,
including any software modifications, and documentation, will belong to the State with all rights, title,
and interest in all intellectual property that comes into existence through the Contractor’s work under
this Contract being assigned to the State. Additionally, the Contractor waives any shop rights, author
rights, and similar retained interests in any such custom developed materials. The Contractor must
provide the State with all assistance reasonably needed to vest such rights of ownership in the State.
However, the Contractor will retain ownership of all tools, methods, techniques, standards, and other
development procedures, as well as generic and preexisting shells, subroutines, and similar material
incorporated in any custom Deliverable (“Pre-existing Materials”).
The Contractor grants the State a worldwide, non-exclusive, royalty-free, perpetual license to use,
modify, and otherwise distribute all Pre-existing Materials that are incorporated in any custom-
developed Deliverable, including distribution to third parties as required by funding mandates. The
Contractor may not include in any custom Deliverable any intellectual property unless such has been
created under this Contract or qualifies as Pre-existing Material. If the Contractor wants to
incorporate any Pre-existing Materials in a custom Deliverable, the Contractor must disclose that
desire to the State and obtain written approval from the State for doing so in advance. On the request
of the Contractor, the State will incorporate any proprietary notice that Contractor may reasonably
want for any Pre-existing Materials included in a custom Deliverable in all copies the State makes of
that Deliverable. Subject to the limitations and obligations of the State with respect to Pre-existing
Materials, the State may make all custom Deliverables available to the general public without any
proprietary notices of any kind.
E. FORCE MAJEURE (EXCUSABLE DELAY). Neither party will be liable for any delay in its
performance that arises from causes beyond its or its subcontractor’s control and without its or its
subcontractor’s negligence or fault. For purposes of this Section, the term “force majeure event”
includes without limitation, the following: Acts of God, such as pestilence, lightning, earthquakes,
fires, storms, hurricanes, tornadoes, floods, washouts, droughts, severe weather. Additional
circumstances and events include epidemics, explosions, restraining of government and people, war,
strikes, and other similar events or causes.
If the State or the Contractor cannot perform any part of its obligations under this Contract because
of force majeure, that party is excused from those obligations, to the extent that performance is
prevented by the force majeure event and that party took all commercially reasonable steps to
mitigate or avoid the effects of the force majeure event. If there is only a delay in performance, such
delay may extend only for that time lost because of the force majeure event. At any time a party is
unable to perform those above-referenced obligations, it must also do the following:
1. Promptly notify the other party, in writing, of any material delay in performance due to a specified
force majeure event;
2. Provide detailed information of the force majeure event;
3. Provide a proposed revised performance date to make up for performance delays due to the
force majeure event. When applicable, the revised schedule must provide for performance time
not to exceed the time lost as a result of the force majeure event.
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F. CONTRACT PERFORMANCE MANAGEMENT. The Contracting and Ordering Agencies are
responsible for administering and monitoring the Contractor’s compliance and performance on this
Contract. Therefore, the Contractor must respond to complaints about performance of the obligations
in this Contract to such entities in a timely manner. If the Contractor fails to perform any one of its
obligations under this Contract, it will be in default.
If the Contractor fails to satisfactorily correct the performance or compliance issue within the time
designated by the Agency, the Contracting Agency may employ all available options and remedies,
including termination of the Contract if necessary to resolve the Contractor’s continued
nonperformance or noncompliance.
G. QUALITY ASSURANCE. At the option of the Contracting or Ordering Agency samples may be taken
from deliveries made and submitted for laboratory tests. The Ordering Agency will bear the cost of
testing when samples are found to be in compliance with the Contract. If samples do not conform to
the Contract, Contractor will bear the costs of testing and the terms and conditions of the
Suspension/Termination provision of this Contract will be applied.
H. CONTRACT REMEDIES.
1. Actual Damages. The Contractor is liable to the State for all actual and direct damages caused
by the Contractor’s default. The State may self-perform or buy substitute Deliverables from a
third party for those that were to be provided by the Contractor. The State may recover the costs
associated with acquiring substitute Deliverables, less any expenses or costs avoided by the
Contractor’s default.
2. Liquidated Damages. If actual and direct damages are uncertain or difficult to determine, the
State may recover liquidated damages. Unless otherwise specified, liquidated damages will be
in the amount of 1% of the value of the order, Deliverable, or milestone that are the subject of
the default, for every day that the default is not cured by the Contractor.
3. Right to Withhold or Offset. The State may withhold payment or set off the amount of any
Ohio tax liability, liquidated damages or other damages or claims for damages, or other
obligation of the Contractor or its subsidiaries to the State, including any amounts the Contractor
owes to the State under this Contract against any payments due from the State to the Contractor
under this Contract with the State.
I. SUSPENSION/TERMINATION. In the event of suspension or termination the State will issue a
notice. Any notice of suspension or termination, in full or in part, will be effective as specified in the
notice. The Contractor must immediately cease all work, refuse any additional orders, and take all
steps necessary to minimize the costs the Contractor will incur related to this Contract as directed by
the notice. Suspension, termination or expiration of this Contract will not limit the Contractor’s
continuing obligations with respect to Deliverables that the State paid for or limit the State’s rights in
such.
At the State’s request, the Contractor must immediately prepare a final report and deliver such report
to the State. The report must detail the work completed and/or the orders received and not processed
prior to the time of notice. If applicable, the report must include the percentage of the Project’s
completion, estimated time for delivery of all orders received but not processed, any costs incurred
by the Contractor in doing the Project to date, and any Deliverables completed or partially completed
but not delivered to the State at the time of notice. Based on the State’s approval of the final report
and as directed, the Contractor must deliver work, whether completed or not, to the State. Any
delivered work will be subject to approval by the State. The Contractor may be entitled to payment
for any Deliverables that have been delivered and accepted at a pro-rated amount based on the
compensation structure of this Contract.
1. Contract or Order Suspension.
a. Suspension for Cause. If the Contractor fails to perform any one of the Contractor’s
obligations under this Contract or an order, the Contractor will be in default and the State
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may suspend rather than terminate this Contract or an order. In the case of suspension for
default, the State will be entitled to all remedies available under this Contract.
b. Suspension for Convenience. In the case of a suspension for the State’s convenience,
the amount of compensation due to the Contractor for work performed before the
suspension will be determined in the same manner as provided in Section I.2.a. for
termination for the State’s convenience or the Contractor may be entitled to compensation
for work performed before the suspension.
The notice of suspension whether, with or without cause, will be effective immediately, on the
Contractor’s receipt of the notice.
The State may not suspend the Work for its convenience more than twice during the term of this
Contract, and any suspension for the State’s convenience may not continue for more than 30
calendar days. If the Contractor does not receive notice to resume or terminate the Work within the
30-day suspension, then this Contract will terminate automatically for the State’s convenience at the
end of the 30-calendar day period.
2. Contract or Order Termination.
a. Termination for Convenience. The Contracting Agency may terminate this Contract, or an
Ordering Agency may terminate an order placed under this Contract, for its convenience
after issuing written notice to the Contractor. The Contractor will be entitled to the pro-rated
price for any Deliverable or portion of a Deliverable that the Contractor has delivered and
the Ordering Agency or the State has accepted before the termination. Total payments will
not exceed the amount payable to the Contractor as if the Contract or order had been fully
performed. This will be the Contractor’s exclusive remedy in the case of termination for
convenience and is available to the Contractor only after the Contractor has submitted a
proper invoice.
b. Termination for Cause. If the Contractor fails to perform any of its obligations under this
Contract or an order under this Contract, the Contractor will be in default, and the
Contracting Agency may terminate this Contract or an Ordering Agency may terminate an
order in accordance with this Section. For purposes of this subsection (b), the term “Agency”
means both the Contracting Agency and the Ordering Agency interchangeably. Termination
for cause includes but is not limited to:
1) Termination for Persistent Default. An Agency may terminate for defaults that are
cured but are persistent. “Persistent” means three or more defaults. After providing
notification to the Contractor of its third default, an Agency may terminate without
providing the Contractor with an opportunity to cure. The three defaults are not required
to be related to each other in any way.
2) Termination for Endangered Performance. An Agency may terminate if it determines
that the performance is endangered through no fault of its own.
3) Termination for Financial Instability. An Agency may terminate if the Contractor fails
to timely pay its subcontractors, files a petition in bankruptcy or similar action, or the
Agency finds other evidence of the Contractor’s financial instability.
4) Termination for Delinquency, Violation of Law. An Agency may terminate if it
determines that the Contractor is delinquent in its payment of federal, state or local
obligations, including but not limited to taxes, workers’ compensation insurance
premiums, unemployment compensation contributions, child support, court costs or
any other obligation owed to a State agency or political subdivision. An Agency also
may terminate if it determines that the Contractor has violated any law during the
performance of this Contract.
5) Termination for Subcontractor Default. An Agency may terminate for default caused
by the Contractor’s subcontractors. Any claims of its subcontractors due to suspension
or termination will be the sole responsibility of the Contractor.
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6) Termination for Failure to Retain Certification, License, and Permits. An Agency
may immediately terminate if Contractor fails to obtain and maintain all official permits,
approvals, licenses, certifications (Including CRP, MBE, EDGE and Veteran Friendly
Business Enterprise certifications), and similar authorizations required by this Contract
or by any local, state, or federal law throughout the duration of this Contract.
J. TIME IS OF THE ESSENCE. Time is of the essence in this Contract. The Contractor must deliver
Deliverables and meet milestones as required by the Contract or coordinate an acceptable date and
time for delivery with the Ordering Agency. If the Contractor is not able to or does not provide the
Deliverables to the Ordering Agency or meet milestones by the date and time set forth in the Contract
or agreed upon by the parties, the State may obtain any remedy as described herein or any other
remedy at law.
K. ePROCUREMENT. This Contract will become part of an eProcurement System which will provide
electronic contract and catalog hosting and management services. Ordering Agencies will access a
web-based site to place orders for the procurement of goods and services using State of Ohio
contracts. The Contractor agrees to establish, maintain and support an online contract and catalog.
VII. DATA AND INFORMATION CONTROL
A. CONFIDENTIALITY. The parties may disclose or learn of information, documents, data, records, or
other material that the disclosing party considers confidential (“Confidential Information”) in the
performance of this Contract. The receiving party must treat the Confidential Information as such if it
is so marked, otherwise defined as such, or when, by its very nature, it deals with matters that, if
generally known, would be damaging to the best interests of either party, the public, other contractors
or potential contractors with the State, or individuals or organizations about whom the State keeps
information. Title to the Confidential Information and all related materials and documentation remains
with the disclosing party. The receiving party may only use the Confidential Information solely to
perform its obligations under this Contract and may not use or disclose any Confidential Information
received as a result of this Contract without the written permission of the disclosing party. The
Contractor must assume that all State information, documents, data, source codes, software, models,
know-how, trade secrets, or other material when, by its very nature, it deals with matters that, if
generally known, would be damaging to the best interest of the public, other contractors, potential
contractors with the State, or individuals or organizations about whom the State keeps information is
confidential. In addition, the receiving party may not use or disclose any documents or records
excluded by Ohio law from public records disclosure requirements.
The receiving party’s obligation to maintain the confidentiality of the Confidential Information will not
apply where the information:
1. Was already in the receiving party’s possession without the obligation of confidence;
2. Is independently developed by the receiving party with documentary evidence to support the
independent development;
3. Is or becomes publicly available without breach of this Contract, except as provided in the next
full paragraph;
4. Is rightfully received by the receiving party from a third party without an obligation of confidence;
5. Is disclosed by the receiving party with the written consent of the disclosing party; or
6. Is released in accordance with a valid order of a court or governmental agency, provided that
the receiving party:
a. Notifies the disclosing party of such order immediately upon receipt of the order; and
b. Makes a reasonable effort to obtain a protective order from the issuing court or agency
limiting disclosure and use of the Confidential Information solely for the purposes intended
to be serviced by the original order of production.
Although some sensitive personal information, such as medical records, addresses, telephone
numbers, and social security numbers may be publicly available through other sources, the receiving
party shall not disclose or use such information in any manner except as expressly authorized in this
Contract. Therefore, item 3 above does not apply, and the receiving party must treat such sensitive
personal information as Confidential Information whether it is available elsewhere or not. The
receiving party must restrict circulation of Confidential Information within its organization and then
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only to people in the receiving party’s organization that have a need to know the Confidential
Information to perform under this Contract.
The receiving party must return all originals of any Confidential Information provided by the disclosing
party and destroy any copies the receiving party has made upon termination or expiration of this
Contract.
The receiving party will not incorporate any portion of any Confidential Information into any work or
product, other than a Deliverable, and will have no proprietary interest in any of the Confidential
Information. Furthermore, the receiving party may be required to have all of its personnel and
subcontractors who have access to any Confidential Information to execute a confidentiality
agreement incorporating the obligations in this section.
The receiving party will be liable for the disclosure of any Confidential Information not specifically
authorized by this Contract. The parties agree that the disclosure of Confidential Information may
cause the disclosing party irreparable damage for which remedies other than injunctive relief may be
inadequate, and the receiving party agrees that in the event of a breach of the receiving party’s
obligations hereunder, the disclosing party shall be entitled to temporary and permanent injunctive
relief to enforce this Contract without the necessity of proving actual damages. This provision shall
not, however, diminish or alter any right to claim and recover damages.
This Contract is not Confidential Information. All its terms and conditions, including pricing and any
attachments, represent public information.
B. PUBLIC RECORDS AND RETENTION OF DOCUMENTS AND INFORMATION. The Contractor
acknowledges, in accordance with Section 149.43 of the Ohio Revised Code, that this Contract, as
well as any information, Deliverables, records, reports, and financial records related to this Contract
are presumptively deemed public records. The Contractor understands that these records will be
made freely available to the public unless the State determines that, pursuant to state or federal law,
such materials are confidential or otherwise exempt from disclosure. The Contractor must comply
with any direction from the State or an Ordering Agency to preserve and/or provide documents and
information, in both electronic and paper form, and to suspend any scheduled destruction of such
documents and information.
C. SECURITY AND SAFETY RULES. When using or possessing State data or accessing State
networks and systems, the Contractor, its employees, subcontractors and agents must comply with
all applicable State rules, policies, and regulations regarding State-provided IT resources, data
security and integrity. When on any property owned or controlled by the State, the Contractor must
comply with all security and safety rules, regulations, and policies applicable to people on those
premises.
The State may require the Contractor, its employees, subcontractors and agents to sign a
confidentiality agreement and policy acknowledgements and have a background check performed
before accessing facilities, data, or systems. Each Ordering Agency may require a different
confidentiality agreement or acknowledgement, and the Contractor, its employees, subcontractors
and agents may be required to sign a different confidentiality agreement or acknowledgement for
each Ordering Agency. The Contractor must immediately replace anyone who refuses to sign a
required confidentiality agreement or acknowledgment or have a background check performed.
D. USAGE REPORTS. At no cost to the State and in addition to other reports required by the Contract,
the Contractor shall be required to provide quarterly, bi-annual or annual usage reports as requested
by all Contracting Agencies and Co-operative Purchasing Program members. The report may
include customer name, date of purchase, item description, quantity, dollar value, aggregate sales
to date for each customer and other such information. Electronic media is the preferred method for
these reports. Failure to provide the requested reports may be deemed as an event of default.