Mississippi Administrative Code › Title 12 - Finance and Administration › Part 9 - Office of Personal Service Contract Review Rules and Regulations › APPENDICES › Appendix 12-9-E - Clauses Available for Use in Service Contracts

Current through June 25, 2024
Appendix E includes (alphabetically by title) various service
				  contracting clauses which are available for use. Many clauses require the
				  inclusion of additional information. A word or phrase in square brackets
				  indicates that the information identified is to be inserted
				  (e.g.,
[time], [date]).
Clarifications of clauses are in
				  parentheses within or at the end of the clause. These are discretionary and the
				  agency is neither required to use them nor prohibited from using others which
				  are not included in this appendix.
ALTERNATIVE BIDS
Bidders offering service delivery methods other than those
				  permitted by the scope of work may submit a separate envelope clearly marked
				  "Alternative Bid". Alternative bids will be deemed non-responsive and will not
				  be considered for award. All such responses will; however, be examined prior to
				  award. Such examination may result in cancellation of all bids received to
				  permit rewriting the scope of work to include the alternative method, or the
				  alternative method may be considered for future requirements of the
[agency].
ANTI-ASSIGNMENT/SUBCONTRACTING
Contractor acknowledges that it was selected by the State to
				  perform the services required hereunder based, in part, upon Contractor's
				  special skills and expertise. Contractor shall not assign, subcontract, or
				  otherwise transfer this agreement, in whole or in part, without the prior
				  written consent of the State, which the State may, in its sole discretion,
				  approve or deny without reason. Any attempted assignment or transfer of its
				  obligations without such consent shall be null and void. No such approval by
				  the State of any subcontract shall be deemed in any way to provide for the
				  incurrence of any obligation of the State in addition to the total fixed price
				  agreed upon in this agreement. Subcontracts shall be subject to the terms and
				  conditions of this agreement and to any conditions of approval that the State
				  may deem necessary. Subject to the foregoing, this agreement shall be binding
				  upon the respective successors and assigns of the parties.
ANTITRUST
By entering into a contract, Contractor conveys, sells,
				  assigns, and transfers to the
[agency]
all rights, titles, and
				  interest it may now have, or hereafter acquire, under the antitrust laws of the
				  United States and the State that relate to the particular goods or services
				  purchased or acquired by the
[agency]
under said contract.
APPROVAL
It is understood that this contract requires approval by the
				  Public Procurement Review Board. If this contract is not approved, it is void
				  and no payment shall be made hereunder.
ATTORNEY'S FEES AND EXPENSES
Subject to other terms and conditions of this agreement, in
				  the event Contractor defaults in any obligations under this agreement,
				  Contractor shall pay to the State all costs and expenses (including, without
				  limitation, investigative fees, court costs, and attorney's fees) incurred by
				  the State in enforcing this agreement or otherwise reasonably related thereto.
				  Contractor agrees that under no circumstances shall the customer be obligated
				  to pay any attorney's fees or costs of legal action to Contractor.
AUTHORITY TO CONTRACT
Contractor warrants: (a) that it is a validly organized
				  business with valid authority to enter into this agreement; (b) that it is
				  qualified to do business and in good standing in the State of Mississippi; (c)
				  that entry into and performance under this agreement is not restricted or
				  prohibited by any loan, security, financing, contractual, or other agreement of
				  any kind; and, (d) notwithstanding any other provision of this agreement to the
				  contrary, that there are no existing legal proceedings or prospective legal
				  proceedings, either voluntary or otherwise, which may adversely affect its
				  ability to perform its obligations under this agreement.
CHANGE IN SCOPE OF WORK
The
[agency]
may order changes in the work
				  consisting of additions, deletions, or other revisions within the general scope
				  of the contract. No claims may be made by Contractor that the scope of the
				  project or of Contractor's services has been changed, requiring changes to the
				  amount of compensation to Contractor or other adjustments to the contract,
				  unless such changes or adjustments have been made by written amendment to the
				  contract signed by the
[agency]
and Contractor.
If Contractor believes that any particular work is not
				  within the scope of the project, is a material change, or will otherwise
				  require more compensation to Contractor, Contractor must immediately notify the
[agency]
in writing of this belief. If the
[agency]
believes that the particular work is within the scope
				  of the contract as written, Contractor will be ordered to and shall continue
				  with the work as changed and at the cost stated for the work within the
				  contract.
CLAIMS BASED ON A CHIEF PROCUREMENT OFFICER'S ACTIONS
				  OR OMISSIONS
(1)
Notice of Claim.
If any action or omission
				  on the part of a Chief Procurement Officer or designee of such officer
				  requiring performance changes within the scope of the contract constitutes the
				  basis for a claim by Contractor for additional compensation, damages, or an
				  extension of time for completion, Contractor shall continue with performance of
				  the contract in compliance with the directions or orders of such officials, but
				  by so doing, Contractor shall not be deemed to have prejudiced any claim for
				  additional compensation, damages, or an extension of time for completion;
				  provided:
(a) Contractor shall have given written notice to the Chief
				  Procurement Officer or designee of such officer:
i. prior to the commencement of the work involved, if at that
				  time Contractor knows of the occurrence of such action or omission;
ii. within 30 days after Contractor knows of the occurrence
				  of such action or omission, if Contractor did not have such knowledge prior to
				  the commencement of the work; or,
iii. within such further time as may be allowed by the Chief
				  Procurement Officer in writing.
This notice shall state that Contractor regards the act or
				  omission as a reason which may entitle Contractor to additional compensation,
				  damages, or an extension of time. The Chief Procurement Officer or designee of
				  such officer, upon receipt of such notice, may rescind such action, remedy such
				  omission, or take such other steps as may be deemed advisable in the discretion
				  of the Chief Procurement Officer or designee of such officer;
(b) The notice required by subparagraph (a) of this paragraph
				  describes, as clearly as practicable at the time, the reasons why Contractor
				  believes that additional compensation, damages, or an extension of time may be
				  remedies to which Contractor is entitled; and,
(c) Contractor maintains and, upon request, makes available
				  to the Chief Procurement Officer within a reasonable time, detailed records to
				  the extent practicable, of the claimed additional costs or basis for an
				  extension of time in connection with such changes.
(2)
Limitation of Clause.
Nothing contained
				  herein shall excuse Contractor from compliance with any rules of law precluding
				  state officers and Contractors from acting in collusion or bad faith in issuing
				  or performing change orders which are clearly not within the scope of the
				  contract.
(3)
Adjustment of Price.
Any adjustment in the
				  contract price made pursuant to this clause shall be determined in accordance
				  with the Price Adjustment clause of this contract.
INFORMATION DESIGNATED BY CONTRACTOR AS
				  CONFIDENTIAL
Any disclosure of those materials, documents, data, and
				  other information which Contractor has designated in writing as proprietary and
				  confidential shall be subject to the provisions of Mississippi Code Annotated
				  §§
									25-61-9
				  and
				  79-23-1.
				  As provided in the contract, the personal or professional services to be
				  provided, the price to be paid, and the term of the contract shall not be
				  deemed to be a trade secret, or confidential commercial or financial
				  information.
Any liability resulting from the wrongful disclosure of
				  confidential information on the part of Contractor or its subcontractor shall
				  rest with Contractor. Disclosure of any confidential information by Contractor
				  or its subcontractor without the express written approval of the
[agency]
shall result in the immediate termination of this
				  agreement.
CONFIDENTIALITY
Notwithstanding any provision to the contrary contained
				  herein, it is recognized that
[agency]
is a public agency of
				  the State of Mississippi and is subject to the Mississippi Public Records Act.
				  Mississippi Code Annotated §§
									25-61-1
et seq.
If a public records request is made for any
				  information provided to
[agency]
pursuant to the agreement and
				  designated by the Contractor in writing as trade secrets or other proprietary
				  confidential information,
[agency]
shall follow the provisions
				  of Mississippi Code Annotated §§
									25-61-9
				  and
				  79-23-1
				  before disclosing such information. The
[agency]
shall not be
				  liable to the Contractor for disclosure of information required by court order
				  or required by law.
CONTRACTOR PERSONNEL
The
[agency]
shall, throughout the life of
				  the contract, have the right of reasonable rejection and approval of staff or
				  subcontractors assigned to the work by Contractor. If the
[agency]
reasonably rejects staff or subcontractors,
				  Contractor must provide replacement staff or subcontractors satisfactory to the
[agency]
in a timely manner and at no additional cost to the
[agency].
The day-to-day supervision and control of
				  Contractor's employees and subcontractors is the sole responsibility of
				  Contractor.
COPYRIGHTS
Contractor agrees that
[agency]
shall
				  determine the disposition of the title to and the rights under any copyright by
				  Contractor or employees on copyrightable material first produced or composed
				  under this agreement. Further, Contractor hereby grants to
[agency]
a royalty-free, nonexclusive, irrevocable license to
				  reproduce, translate, publish, use and dispose of, and to authorize others to
				  do so, all copyrighted (or copyrightable) work not first produced or composed
				  by Contractor in the performance of this agreement, but which is incorporated
				  in the material furnished under the agreement. This grant is provided that such
				  license shall be only to the extent Contractor now has, or prior to the
				  completion of full final settlements of agreement may acquire, the right to
				  grant such license without becoming liable to pay compensation to others solely
				  because of such grant.
DEBARMENT AND SUSPENSION
Contractor certifies to the best of its knowledge and
				  belief, that it:
(1) is not presently debarred, suspended, proposed for
				  debarment, declared ineligible, or voluntarily excluded from covered
				  transaction by any federal department or agency or any political subdivision or
				  agency of the State of Mississippi;
(2) has not, within a three year period preceding this
				  proposal, been convicted of or had a civil judgment rendered against it for
				  commission of fraud or a criminal offense in connection with obtaining,
				  attempting to obtain, or performing a public (federal, state, or local)
				  transaction or contract under a public transaction;
(3) has not, within a three year period preceding this
				  proposal, been convicted of or had a civil judgment rendered against it for a
				  violation of federal or state antitrust statutes or commission of embezzlement,
				  theft, forgery, bribery, falsification or destruction of records, making false
				  statements, or receiving stolen property;
(4) is not presently indicted for or otherwise criminally or
				  civilly charged by a governmental entity (federal, state or local) with
				  commission of any of these offenses enumerated in paragraphs two (2) and (3) of
				  this certification; and,
(5) has not, within a three year period preceding this
				  proposal, had one or more public transactions (federal, state, or local)
				  terminated for cause or default.
DISCLOSURE OF CONFIDENTIAL INFORMATION
In the event that either party to this agreement receives
				  notice that a third party requests divulgence of confidential or otherwise
				  protected information and/or has served upon it a subpoena or other validly
				  issued administrative or judicial process ordering divulgence of confidential
				  or otherwise protected information that party shall promptly inform the other
				  party and thereafter respond in conformity with such subpoena to the extent
				  mandated by law. This section shall survive the termination or completion of
				  this agreement. The parties agree that this section is subject to and
				  superseded by Mississippi Code Annotated §§
									25-61-1
etseq.
EXCEPTIONS TO CONFIDENTIAL INFORMATION
Contractor and the State shall not be obligated to treat as
				  confidential and proprietary any information disclosed by the other party
				  ("disclosing party") which:
(1) is rightfully known to the recipient prior to
				  negotiations leading to this agreement, other than information obtained in
				  confidence under prior engagements;
(2) is generally known or easily ascertainable by nonparties
				  of ordinary skill in the business of the customer;
(3) is released by the disclosing party to any other person,
				  firm, or entity (including governmental agencies or bureaus) without
				  restriction;
(4) is independently developed by the recipient without any
				  reliance on confidential information;
(5) is or later becomes part of the public domain or may be
				  lawfully obtained by the State or Contractor from any nonparty; or,
(6) is disclosed with the disclosing party's prior written
				  consent.
ERRORS IN EXTENSION
If the unit price and the extension price are at variance,
				  the unit price shall prevail.
FAILURE TO DELIVER
In the event of failure of Contractor to deliver services in
				  accordance with the contract terms and conditions, the
[agency],
after due oral or written notice, may procure the
				  services from other sources and hold Contractor responsible for any resulting
				  additional purchase and administrative costs. This remedy shall be in addition
				  to any other remedies that the
[agency]
may have.
FAILURE TO ENFORCE
Failure by the
[agency]
at any time to
				  enforce the provisions of the contract shall not be construed as a waiver of
				  any such provisions. Such failure to enforce shall not affect the validity of
				  the contract or any part thereof or the right of the
[agency]
to enforce any provision at any time in accordance with its terms.
FINAL PAYMENT
Upon satisfactory completion of the work performed under
				  this contract, as a condition before final payment under this contract, or as a
				  termination settlement under this contract, Contractor shall execute and
				  deliver to the
[agency]
a release of all claims against the
				  State arising under, or by virtue of, the contract, except claims which are
				  specifically exempted by Contractor to be set forth therein. Unless otherwise
				  provided in this contract, by state law, or otherwise expressly agreed to by
				  the parties in this contract, final payment under the contract or settlement
				  upon termination of this contract shall not constitute waiver of the State's
				  claims against Contractor under this contract.
FORCE MAJEURE
Each party shall be excused from performance for any period
				  and to the extent that it is prevented from performing any obligation or
				  service, in whole or in part, as a result of causes beyond the reasonable
				  control and without the fault or negligence of such party and/or its
				  subcontractors. Such acts shall include without limitation acts of God,
				  strikes, lockouts, riots, acts of war, epidemics, governmental regulations
				  superimposed after the fact, fire, earthquakes, floods, or other natural
				  disasters ("force majeure events"). When such a cause arises, Contractor shall
				  notify the State immediately in writing of the cause of its inability to
				  perform, how it affects its performance, and the anticipated duration of the
				  inability to perform. Delays in delivery or in meeting completion dates due to
				  force majeure events shall automatically extend such dates for a period equal
				  to the duration of the delay caused by such events, unless the State determines
				  it to be in its best interest to terminate the agreement.
HIPAA COMPLIANCE
Contractor agrees to comply with the "Administrative
				  Simplification" provisions of the Health Insurance Portability and
				  Accountability Act of 1996, including electronic data interchange, code sets,
				  identifiers, security, and privacy provisions, as may be applicable to the
				  services under this contract.
INDEMNIFICATION
To the fullest extent allowed by law, Contractor shall
				  indemnify, defend, save and hold harmless, protect, and exonerate the agency,
				  its commissioners, board members, officers, employees, agents, and
				  representatives, and the State of Mississippi from and against all claims,
				  demands, liabilities, suits, actions, damages, losses, and costs of every kind
				  and nature whatsoever including, without limitation, court costs, investigative
				  fees and expenses, and attorney's fees, arising out of or caused by Contractor
				  and/or its partners, principals, agents, employees and/or subcontractors in the
				  performance of or failure to perform this agreement. In the State's sole
				  discretion, Contractor may be allowed to control the defense of any such claim,
				  suit, etc. In the event Contractor defends said claim, suit, etc., Contractor
				  shall use legal counsel acceptable to the State. Contractor shall be solely
				  responsible for all costs and/or expenses associated with such defense, and the
				  State shall be entitled to participate in said defense. Contractor shall not
				  settle any claim, suit, etc. without the State's concurrence, which the State
				  shall not unreasonably withhold.
INDEMNIFICATION (for contracts between two state
				  agencies or entities)
Contractor's tort liability, as an entity of the State of
				  Mississippi, is determined and controlled in accordance with Mississippi Code
				  Annotated §§
									11-46-1
et seq.,
including all defenses and exceptions contained
				  therein. Nothing in this agreement shall have the effect of changing or
				  altering this liability or of eliminating any defense available to the State
				  under statute.
INDEPENDENT CONTRACTOR STATUS
Contractor shall, at all times, be regarded as and shall be
				  legally considered an independent contractor and shall at no time act as an
				  agent for the State. Nothing contained herein shall be deemed or construed by
				  the State, Contractor, or any third party as creating the relationship of
				  principal and agent, master and servant, partners, joint ventures, employer and
				  employee, or any similar such relationship between the State and Contractor.
				  Neither the method of computation of fees or other charges, nor any other
				  provision contained herein, nor any acts of the State or Contractor hereunder
				  creates, or shall be deemed to create a relationship other than the independent
				  relationship of the State and Contractor. Contractor's personnel shall not be
				  deemed in any way, directly or indirectly, expressly or by implication, to be
				  employees of the State. Neither Contractor nor its employees shall, under any
				  circumstances, be considered servants, agents, or employees of the
[agency],
and the
[agency]
shall be at no
				  time legally responsible for any negligence or other wrongdoing by Contractor,
				  its servants, agents, or employees. The
[agency]
shall not
				  withhold from the contract payments to Contractor any federal or state
				  unemployment taxes, federal or state income taxes, Social Security tax, or any
				  other amounts for benefits to Contractor. Further, the
[agency]
shall not provide to Contractor any insurance
				  coverage or other benefits, including Worker's Compensation, normally provided
				  by the State for its employees.
INFRINGEMENT INDEMNIFICATION
Contractor warrants that the materials and deliverables
				  provided to the customer under this agreement, and their use by the customer,
				  will not infringe or constitute an infringement of any copyright, patent,
				  trademark, or other proprietary right. Should any such items become the subject
				  of an infringement claim or suit, Contractor shall defend the infringement
				  action and/or obtain for the customer the right to continue using such items.
				  Should Contractor fail to obtain for the customer the right to use such items,
				  Contractor shall suitably modify them to make them non-infringing or substitute
				  equivalent software or other items at Contractor's expense. In the event the
				  above remedial measures cannot possibly be accomplished, and only in that
				  event, Contractor may require the customer to discontinue using such items, in
				  which case Contractor will refund to the customer the fees previously paid by
				  the customer for the items the customer may no longer use, and shall compensate
				  the customer for the lost value of the infringing part to the phase in which it
				  was used, up to and including the contract price for said phase. Said refund
				  shall be paid within ten (10) working days of notice to the customer to
				  discontinue said use.
Scope of Indemnification: Provided that the State promptly
				  notifies Contractor in writing of any alleged infringement claim of which it
				  has knowledge, Contractor shall defend, at its own expense, the State against,
				  and pay all costs, damages and attorney fees that a court finally awards for
				  infringement based on the programs and deliverables provided under this
				  agreement.
INSURANCE
Contractor represents that it will maintain workers'
				  compensation insurance which shall inure to the benefit of all Contractor's
				  personnel provided hereunder, comprehensive general liability or professional
				  liability insurance, with minimum limits of $_________per occurrence and
				  fidelity bond insurance with minimum limits of $ . All general liability,
				  professional liability and fidelity bond insurance will provide coverage to the
[agency]
as an additional insured. The
[agency]
reserves the right to request from carriers,
				  certificates of insurance regarding the required coverage. Insurance carriers
				  must be licensed or hold a Certificate of Authority from the Mississippi
				  Department of Insurance.
INTEGRATED AGREEMENT/MERGER
This agreement, including all contract documents, represents
				  the entire and integrated agreement between the parties hereto and supersedes
				  all prior negotiations, representations or agreements, irrespective of whether
				  written or oral. This agreement may be altered, amended, or modified only by a
				  written document executed by the State and Contractor. Contractor acknowledges
				  that it has thoroughly read all contract documents and has had the opportunity
				  to receive competent advice and counsel necessary for it to form a full and
				  complete understanding of all rights and obligations herein. Accordingly, this
				  agreement shall not be construed or interpreted in favor of or against the
				  State or Contractor on the basis of draftsmanship or preparation hereof.
LIQUIDATED DAMAGES
With Termination for Default Clause:
The
				  following clause is authorized for use in service contracts when it is
				  difficult to determine with reasonable accuracy the amount of damage to the
				  State due to delays caused by late Contractor performance or nonperformance and
				  the contract contains the Termination for Default clause set forth in Section
				  4-101.05.
Liquidated Damages
When Contractor is given notice of delay or nonperformance
				  as specified in Paragraph (1) (Default) of the Termination for Default clause
				  of this contract and fails to cure in the time specified, Contractor shall be
				  liable for damages for delay in the amount of $___________per calendar day from
				  date set for cure until either the State reasonably obtains similar services if
				  Contractor is terminated for default, or until Contractor provides the services
				  if Contractor is not terminated for default. To the extent that Contractor's
				  delay or nonperformance is excused under Paragraph (4) (Excuse for
				  Nonperformance or Delayed Performance) of the Termination for Default clause of
				  this contract, liquidated damages shall not be due the State. Contractor
				  remains liable for damages caused other than by delay.
In Other Situations:
If the contract will
				  not have a Termination for Default clause or the liquidated damages are to be
				  assessed for reasons other than delay, the head of a purchasing agency may
				  approve the use of any appropriate liquidated damages clause.
MODIFICATION OR RENEGOTIATION
This agreement may be modified only by written agreement
				  signed by the parties hereto. The parties agree to renegotiate the agreement if
				  federal and/or state revisions of any applicable laws or regulations make
				  changes in this agreement necessary.
NO LIMITATION OF LIABILITY
Nothing in this agreement shall be interpreted as excluding
				  or limiting any tort liability of Contractor for harm caused by the intentional
				  or reckless conduct of Contractor or for damages incurred through the negligent
				  performance of duties by Contractor or the delivery of products that are
				  defective due to negligent construction.
NOTICES
All notices required or permitted to be given under this
				  agreement must be in writing and personally delivered or sent by certified
				  United States mail, postage prepaid, return receipt requested, to the party to
				  whom the notice should be given at the address set forth below. Notice shall be
				  deemed given when actually received or when refused. The parties agree to
				  promptly notify each other in writing of any change of address.
For Contractor:
name, title, Contractor,
				  address
For the agency:
name, title, agency,
				  address
NON-SOLICITATION OF EMPLOYEES
Each party to this agreement agrees not to employ or to
				  solicit for employment, directly or indirectly, any persons in the full-time or
				  part-time employment of the other party until at least six (6) months after
				  this agreement terminates unless mutually agreed to in writing by the State and
				  Contractor.
ORAL STATEMENTS
No oral statement of any person shall modify or otherwise
				  affect the terms, conditions, or specifications stated in this contract. All
				  modifications to the contract must be made in writing by the
[agency]
and agreed to by Contractor.
OWNERSHIP OF DOCUMENTS AND WORK PAPERS
[Agency]
shall own all documents, files,
				  reports, work papers and working documentation, electronic or otherwise,
				  created in connection with the project which is the subject of this agreement,
				  except for Contractor's internal administrative and quality assurance files and
				  internal project correspondence. Contractor shall deliver such documents and
				  work papers to
[agency]
upon termination or completion of the
				  agreement. The foregoing notwithstanding, Contractor shall be entitled to
				  retain a set of such work papers for its files. Contractor shall be entitled to
				  use such work papers only after receiving written permission from
[agency]
and subject to any copyright protections.
PATENTS AND ROYALTIES
Contractor covenants to save, defend, keep harmless, and
				  indemnify the
[agency]
and all of its officers, departments,
				  agencies, agents, and employees from and against all claims, loss, damage,
				  injury, fines, penalties, and cost-including court costs and attorney's fees,
				  charges, liability, and exposure, however caused-for or on account of any
				  copyright or patented or unpatented invention, process, or article manufactured
				  or used in the performance of the contract, including its use by the
[agency].
If Contractor uses any design, device, or material
				  covered by patent or copyright, it is mutually agreed and understood without
				  exception that the contract price includes all royalties or costs arising from
				  the use of such design, device, or materials in any way in the work.
PRICE ADJUSTMENT
(1)
Price Adjustment Methods.
Any
				  adjustments in contract price, pursuant to a clause in this contract, shall be
				  made in one or more of the following ways:
(a) by agreement on a fixed price adjustment before
				  commencement of the additional performance;
(b) by unit prices specified in the contract;
(c) by the costs attributable to the event or situation
				  covered by the clause, plus appropriate profit or fee, all as specified in the
				  contract; or,
(d) by the price escalation clause.
(2)
Submission of Cost or Pricing Data.
Contractor shall provide cost or pricing data for any price adjustments subject
				  to the provisions of Section 3-403 (Cost or Pricing Data) of the
Mississippi Public Procurement Review Board Office of Personal Service
				  Contract Review Rules and Regulations.
PRIORITY
The contract consists of this agreement, the request for
				  proposals
[number]
(hereinafter "RFP" and attached as Schedule
				  [ ]), and the response proposal by
[Contractor]
dated
[date]
(hereinafter "Proposal" and attached as Schedule [ ]).
				  Any ambiguities, conflicts or questions of interpretation of this contract
				  shall be resolved by first, reference to this agreement and, if still
				  unresolved, by reference to the RFP and, if still unresolved, by reference to
				  the proposal. Omission of any term or obligation from this agreement or
				  attached Schedules [ ] or [ ] shall not be deemed an omission from this
				  contract if such term or obligation is provided for elsewhere in this
				  contract.
QUALITY CONTROL
Contractor shall institute and maintain throughout the
				  contract period a properly documented quality control program designed to
				  ensure that the services are provided at all times and in all respects in
				  accordance with the contract. The program shall include providing daily
				  supervision and conducting frequent inspections of Contractor's staff and
				  ensuring that accurate records are maintained describing the disposition of all
				  complaints. The records so created shall be open to inspection by the
[agency].
RECORD RETENTION AND ACCESS TO RECORDS
Provided Contractor is given reasonable advance written
				  notice and such inspection is made during normal business hours of Contractor,
				  the State or any duly authorized representatives shall have unimpeded, prompt
				  access to any of Contractor's books, documents, papers, and/or records which
				  are maintained or produced as a result of the project for the purpose of making
				  audits, examinations, excerpts, and transcriptions. All records related to this
				  agreement shall be retained by Contractor for three (3) years after final
				  payment is made under this agreement and all pending matters are closed;
				  however, if any audit, litigation or other action arising out of or related in
				  any way to this project is commenced before the end of the three (3) year
				  period, the records shall be retained for one (1) year after all issues arising
				  out of the action are finally resolved or until the end of the three (3) year
				  period, whichever is later.
RECOVERY OF MONEY
Whenever, under the contract, any sum of money shall be
				  recoverable from or payable by Contractor to the
[agency],
the
				  same amount may be deducted from any sum due to Contractor under the contract
				  or under any other contract between Contractor and the
[agency].
The rights of the
[agency]
are in
				  addition and without prejudice to any other right the
[agency]
may have to claim the amount of any loss or damage suffered by the
[agency]
on account of the acts or omissions of Contractor.
RENEWAL OF CONTRACT
(Use this clause when the Contractor cannot decline
				  a renewal.)
The contract may be renewed at the discretion of the agency
				  upon written notice to Contractor at least [number] days prior to each contract
				  anniversary date for a period of [number] successive one-year periods under the
				  same prices, terms, and conditions as in the original contract. The total
				  number of renewal years permitted shall not exceed [number].
(Use this clause when the Contractor has the right
				  to decline the renewal.)
Upon written agreement of both parties at least [number]
				  days prior to each contract anniversary date, the contract may be renewed by
				  the
[agency]
for a period of [number] successive one-year
				  period(s) under the same prices, terms, and conditions as in the original
				  contract. The total number of renewal years permitted shall not exceed
				  [number].
REQUIREMENTS CONTRACT
During the period of the contract, Contractor shall provide
				  all the service described in the contract. Contractor understands and agrees
				  that this is a requirements contract and that the
[agency]
shall have no obligation to Contractor if no services are required. Any
				  quantities that are included in the scope of work reflect the current
				  expectations of the
[agency]
for the period of the contract.
				  The amount is only an estimate and Contractor understands and agrees that the
[agency]
is under no obligation to Contractor to buy any
				  amount of the services as a result of having provided this estimate or of
				  having any typical or measurable requirement in the past. Contractor further
				  understands and agrees that the
[agency]
may require services
				  in an amount less than or in excess of the estimated annual contract amount and
				  that the quantity actually used, whether in excess of the estimate or less than
				  the estimate, shall not give rise to any claim for compensation other than the
				  total of the unit prices in the contract for the quantity actually used.
RIGHT TO AUDIT
Contractor shall maintain such financial records and other
				  records as may be prescribed by the
[agency]
or by applicable
				  federal and state laws, rules, and regulations. Contractor shall retain these
				  records for a period of three years after final payment, or until they are
				  audited by the
[agency],
whichever event occurs first. These
				  records shall be made available during the term of the contract and the
				  subsequent three-year period for examination, transcription, and audit by the
				  Mississippi State Auditor's Office, its designees, or other authorized
				  bodies.
RIGHT TO INSPECT FACILITY
The State may, at reasonable times, inspect the place of
				  business of a Contractor or any subcontractor which is related to the
				  performance of any contract awarded by the State.
SEVERABILITY
If any part of this agreement is declared to be invalid or
				  unenforceable, such invalidity or unenforceability shall not affect any other
				  provision of the agreement that can be given effect without the invalid or
				  unenforceable provision, and to this end the provisions hereof are severable.
				  In such event, the parties shall amend the agreement as necessary to reflect
				  the original intent of the parties and to bring any invalid or unenforceable
				  provisions in compliance with applicable law.
STATE PROPERTY
Contractor will be responsible for the proper custody and
				  care of any state-owned property furnished for Contractor's use in connection
				  with the performance of this agreement. Contractor will reimburse the State for
				  any loss or damage, normal wear and tear excepted.
THIRD PARTY ACTION NOTIFICATION
Contractor shall give the customer prompt notice in writing
				  of any action or suit filed, and prompt notice of any claim made against
				  Contractor by any entity that may result in litigation related in any way to
				  this agreement.
UNSATISFACTORY WORK
If, at any time during the contract term, the service
				  performed or work done by Contractor is considered by the
[agency]
to create a condition that threatens the health,
				  safety, or welfare of the citizens and/or employees of the State of
				  Mississippi, Contractor shall, on being notified by the
[agency],
immediately correct such deficient service or work.
				  In the event Contractor fails, after notice, to correct the deficient service
				  or work immediately, the
[agency]
shall have the right to
				  order the correction of the deficiency by separate contract or with its own
				  resources at the expense of Contractor.
VARIATIONS IN ESTIMATED QUANTITIES
Definite Quantity Contracts:
The following
				  clause is authorized for use in definite quantity service contracts:
VARIATION IN QUANTITY
Upon the agreement of the parties, the quantity of services
				  specified in this contract may be increased by a maximum often percent
				  provided:
(1) the unit prices will remain the same (except for any
				  price adjustments otherwise applicable); and,
(2) the Chief Procurement Officer makes a written
				  determination that such an increase will either be more economical than
				  awarding another contract, or that it would not be practical to award another
				  contract.
Indefinite Quantity Contracts:
No clause is
				  provided here because, in indefinite quantity contracts, the flexibility as to
				  the State's obligation to order and Contractor's obligation to deliver should
				  be designed to meet using agency needs while making the contract as attractive
				  as possible to potential Contractors, thereby attempting to obtain maximum
				  practicable competition in order to assure the best economy for the State of
				  Mississippi; however, in each case, the contract should State:
(1) the minimum quantity, if any, the State is obligated to
				  order and Contractor to provide;
(2) whether there is a quantity the State expects to order
				  and how this quantity relates to any minimum and maximum quantities that may be
				  ordered under the contract;
(3) any maximum quantity the State may order and Contractor
				  must provide; and,
(4) whether the State is obligated to order its actual
				  requirements under the contract, or in the case of a multiple award as defined
				  in Section 3-503 (Multiple Source Contracting), that the State will order its
				  actual requirements from Contractors under the multiple award subject to any
				  minimum or maximum quantity stated.
WAIVER
No delay or omission by either party to this agreement in
				  exercising any right, power, or remedy hereunder or otherwise afforded by
				  contract, at law, or in equity shall constitute an acquiescence therein, impair
				  any other right, power or remedy hereunder or otherwise afforded by any means,
				  or operate as a waiver of such right, power, or remedy. No waiver by either
				  party to this agreement shall be valid unless set forth in writing by the party
				  making said waiver. No waiver of or modification to any term or condition of
				  this agreement will void, waive, or change any other term or condition. No
				  waiver by one party to this agreement of a default by the other party will
				  imply, be construed as or require waiver of future or other defaults.