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Award SummaryPage 7 of 33
<br />OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ALL CLAIMS, SUITS, ACTIONS, PROCEEDINGS,
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<br />LOSSES, DAMAGES, LIABILITIES, AWARDS AND COSTS OF EVERY KIND AND DESCRIPTION (INCLUDING
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<br />REASONABLE ATTORNEY'S FEES AND EXPENSES AT TRIAL, ON APPEAL AND IN CONNECTION WITH ANY
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<br />PETITION FOR REVIEW) (COLLECTIVELY, "CLAIM") WHICH MAY BE BROUGHT OR MADE AGAINST THE
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<br />STATE, OR THEIR AGENTS, OFFICIALS, EMPLOYEES AND ARISING OUT OF OR RELATED TO (I) ANY
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<br />PERSONAL INJURY, DEATH OR PROPERTY DAMAGE CAUSED BY ANY ALLEGED ACT, OMISSION, ERROR,
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<br />FAULT, MISTAKE OR NEGLIGENCE OF CONTRACTOR, ITS EMPLOYEES, AGENTS, RELATED TO THIS PRICE
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<br />AGREEMENT, (II) ANY ACT OR OMISSION BY CONTRACTOR THAT CONSTITUTES A MATERIAL BREACH OF
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<br />THIS CONTRACT, INCLUDING WITHOUT LIMITATION ANY BREACH OF WARRANTY, OR (III) THE
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<br />INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHT OF ANY
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<br />THIRD PARTY BY DELIVERY OR USE OF THE SERVICES. AUTHORIZED PURCHASER SHALL PROMPTLY NOTIFY
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<br />CONTRACTOR IN WRITING OF ANY CLAIM THAT THE STATE BECOMES AWARE. CONTRACTOR'S OBLIGATION
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<br />UNDER THIS SECTION SHALL NOT EXTEND TO ANY CLAIM PRIMARILY CAUSED BY (I) THE NEGLIGENT OR
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<br />WILLFUL MISCONDUCT OF THE STATE, OR THEIR AGENTS, OFFICIALS OR EMPLOYEES, OR (II) AGENCY'S
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<br />MODIFICATION OF GOODS WITHOUT CONTRACTOR'S APPROVAL AND IN A MANNER INCONSISTENT WITH THE
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<br />PURPOSE AND PROPER USAGE OF SUCH GOODS.
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<br />20.2 PROVIDED, HOWEVER, THE OREGON ATTORNEY GENERAL MUST GIVE WRITTEN AUTHORIZATION TO ANY
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<br />LEGAL COUNSEL PURPORTING TO ACT IN THE NAME OF, OR REPRESENT THE INTERESTS OF, THE STATE
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<br />AND/OR ITS OFFICERS, EMPLOYEES AND AGENTS PRIOR TO SUCH ACTION OR REPRESENTATION. FURTHER,
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<br />THE STATE, ACTING BY AND THROUGH ITS DEPARTMENT OF JUSTICE, MAY ASSUME ITS OWN DEFENSE,
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<br />INCLUDING THAT OF ITS OFFICERS, EMPLOYEES AND AGENTS, AT ANY TIME WHEN IN THE STATE'S SOLE
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<br />DISCRETION IT DETERMINES THAT (I) PROPOSED COUNSEL IS PROHIBITED FROM THE PARTICULAR
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<br />REPRESENTATION CONTEMPLATED; (II) COUNSEL IS NOT ADEQUATELY DEFENDING OR ABLE TO DEFEND THE
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<br />INTERESTS OF THE STATE, ITS OFFICERS, EMPLOYEES AND/OR AGENTS; (III) IMPORTANT GOVERNMENTAL
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<br />INTERESTS ARE AT STAKE; OR (IV) THE BEST INTERESTS OF THE STATE ARE SERVED THEREBY.
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<br />CONTRACTOR'S OBLIGATION TO PAY FOR ALL COSTS AND EXPENSES SHALL INCLUDE THOSE INCURRED BY
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<br />THE STATE IN ASSUMING ITS OWN DEFENSE AND THAT OF ITS OFFICERS, EMPLOYEES, OR AGENTS UNDER
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<br />(I) AND (II) ABOVE.
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<br />20.3 ATTORNEYS' FEES: With the exception of defense costs and expenses pursuant to Section
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<br />20.2, neither party shall be entitled to recover attorney's fees, court and investigative
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<br />costs, or any other fees or expenses associated with pursuing a remedy for damages arising
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<br />out of or relating to the Price Agreement.
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<br />21.0 NOTICES: All notices required under the Price Agreement shall be in writing and
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<br />addressed to the Party's authorized representative. For Participants, the authorized
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<br />representative shall be identified in the application to open an account with the
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<br />Contractor. Contractor's authorized representative shall be the individual identified in a
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<br />notice to the State prior to the Effective Date. Mailed notices shall be deemed received
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<br />five (5) days after post marked, when deposited, properly addressed and prepaid, into the
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<br />U.S. postal service. Faxed notices shall be deemed received upon electronic confirmation of
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<br />successful transmission to the designated fax number. Personal delivery shall be effective
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<br />upon delivery.
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<br />22.0 GOVERNING LAW, VENUE AND CONSENT TO JURISDICTION:
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<br />22.1 The Price Agreement shall be governed by and construed in accordance with the laws of
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<br />the State of Oregon, without regard to principles of conflicts of laws. To the extent not
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<br />modified by the terms of this Price Agreement, the UCC shall govern this transaction.
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<br />22.2 Any claim, action, suit or proceeding (collectively, "Claim") between the State and
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<br />Contractor that arises from or relates to the Price Agreement shall be brought and
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<br />conducted solely and exclusively within the Circuit Court of Marion County for the State of
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<br />Oregon; provided, however, if a Claim must be brought in a federal forum, then unless
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<br />otherwise prohibited by law it shall be brought and conducted solely and exclusively within
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<br />the United States District Court for the District of Oregon. CONTRACTOR HEREBY CONSENTS TO
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<br />THE IN PERSONAM JURISDICTION OF SAID COURTS AND WAIVES ANY OBJECTION TO VENUE IN SUCH
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<br />COURTS, AND WAIVES ANY CLAIM THAT SUCH FORUM IS AN INCONVENIENT FORUM. Nothing herein shall
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<br />be construed as a waiver of the State's sovereign or governmental immunity, whether derived
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<br />from the Eleventh Amendment to the United States Constitution or otherwise, or of any
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<br />defenses to Claims or jurisdiction based thereon.
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<br />23.0 SURVIVAL: Any terms of this Price Agreement, which by their context or nature are
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<br />intended to survive termination or expiration including but not limited to warranty,
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<br />indemnification, access to records, governing law, venue, and consent to jurisdiction,
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<br />termination and remedies provisions shall survive the termination or expiration of this
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<br />Price Agreement.
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<br />24.0 SEVERABILITY: If any provision of the Price Agreement is declared by a court of
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<br />competent jurisdiction to be illegal or otherwise invalid, the validity of the remaining
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<br />terms and provisions shall not be affected, and the rights and obligations of the parties
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<br />shall be construed and enforced as if the Price Agreement did not contain the particular
<br />https://orpin.oregon.gov/open.dll/showDocSummary?sessionID=1921160&disID=985529&docTy...6/10/2008
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