Mississippi Administrative Code › Title 27 - STATE PERSONNEL BOARD › Part 1 › Chapter 8 - ORAL PROCEEDINGS › APPENDICES › Appendix 27-1-8-F - Clauses Available for Use in Service Contracts

Current through June 25, 2024
Appendix F 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 Personal Service Contract 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 PROCUREMENT OFFICER'S ACTIONS OR
					 OMISSIONS
(1)
Notice of Claim
. If any action or
					 omission on the part of a 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
					 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
					 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 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 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 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.
CONFIDENTIAL INFORMATION
"Confidential Information" shall mean: (a) those
					 materials, documents, data, and other information which Contractor has
					 designated in writing as proprietary and confidential; and, (b) all data and
					 information which Contractor acquires as a result of its contact with and
					 efforts on behalf of the customer and any other information designated in
					 writing as confidential by the State. Each party to this agreement agrees to
					 the following:
(1) to protect all confidential information provided by
					 one party to the other;
(2) to treat all such confidential information as
					 confidential to the extent that confidential treatment is allowed under state
					 and/or federal law; and,
(3) except as otherwise required by law, not to publish or
					 disclose such information to any third party without the other party's written
					 permission; and,
(4) to do so by using those methods and procedures
					 normally used to protect the party's own confidential 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 customer 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.
					 Miss. Code Ann. §§
										25-61-1
et seq.
(1972, as amended). If a public records request is
					 made for any information provided to
[agency]
pursuant to the
					 agreement,
[agency]
shall promptly notify the disclosing party
					 of such request and will respond to the request only in accordance with the
					 procedures and limitations set forth in applicable law. The disclosing party
					 shall promptly institute appropriate legal proceedings to protect its
					 information. No party to the agreement shall be liable to the other party for
					 disclosures 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
et seq
. (1972, as amended).
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
. (1972, as amended), 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 Personal Service Contract Review Board Rules and
					 Regulations.
PRIORITY
The contract consists of this agreement, the request for
					 proposal
[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.
TERMINATION FOR CONVENIENCE
(1)
Termination.
The procurement officer
					 may, when the interests of the State so require, terminate this contract in
					 whole or in part, for the convenience of the State. The procurement officer
					 shall give written notice of the termination to Contractor specifying the part
					 of the contract terminated and when termination becomes effective.
(2)
Contractor's Obligations.
Contractor
					 shall incur no further obligations in connection with the terminated work and
					 on the date set in the notice of termination Contractor will stop work to the
					 extent specified. Contractor shall also terminate outstanding orders and
					 subcontracts as they relate to the terminated work. Contractor shall settle the
					 liabilities and claims arising out of the termination of subcontracts and
					 orders connected with the terminated work. The procurement officer may direct
					 Contractor to assign Contractor's right, title, and interest under terminated
					 orders or subcontracts to the State. Contractor must still complete the work
					 not terminated by the notice of termination and may incur obligations as are
					 necessary to do so.
TERMINATION FOR DEFAULT
(1)
Default.
If Contractor refuses or
					 fails to perform any of the provisions of this contract with such diligence as
					 will ensure its completion within the time specified in this contract or any
					 extension thereof, or otherwise fails to timely satisfy the contract
					 provisions, or commits any other substantial breach of this contract, the
					 procurement officer may notify Contractor in writing of the delay or
					 nonperformance and if not cured in ten (10) days or any longer time specified
					 in writing by the procurement officer, such officer may terminate Contractor's
					 right to proceed with the contract or such part of the contract as to which
					 there has been delay or a failure to properly perform. In the event of
					 termination in whole or in part, the procurement officer may procure similar
					 supplies or services in a manner and upon terms deemed appropriate by the
					 procurement officer. Contractor shall continue performance of the contract to
					 the extent it is not terminated and shall be liable for excess costs incurred
					 in procuring similar goods or services.
(2)
Contractor's Duties
. Notwithstanding
					 termination of the contract and subject to any directions from the procurement
					 officer, Contractor shall take timely, reasonable, and necessary action to
					 protect and preserve property in the possession of Contractor in which the
					 State has an interest.
(3)
Compensation
. Payment for completed
					 services delivered and accepted by the State shall be at the contract price.
					 The State may withhold from amounts due Contractor such sums as the procurement
					 officer deems to be necessary to protect the State against loss because of
					 outstanding liens or claims of former lien holders and to reimburse the State
					 for the excess costs incurred in procuring similar goods and services.
(4)
Excuse for Nonperformance or Delayed
					 Performance
. Except with respect to defaults of subcontractors,
					 Contractor shall not be in default by reason of any failure in performance of
					 this contract in accordance with its terms (including any failure by Contractor
					 to make progress in the prosecution of the work hereunder which endangers such
					 performance) if Contractor has notified the procurement officer within 15 days
					 after the cause of the delay and the failure arises out of causes such as: acts
					 of God; acts of the public enemy; acts of the State and any other governmental
					 entity in its sovereign or contractual capacity; fires; floods; epidemics;
					 quarantine restrictions; strikes or other labor disputes; freight embargoes; or
					 unusually severe weather. If the failure to perform is caused by the failure of
					 a subcontractor to perform or to make progress, and if such failure arises out
					 of causes similar to those set forth above, Contractor shall not be deemed to
					 be in default, unless the services to be furnished by the subcontractor were
					 reasonably obtainable from other sources in sufficient time to permit
					 Contractor to meet the contract requirements. Upon request of Contractor, the
					 procurement officer shall ascertain the facts and extent of such failure, and,
					 if such officer determines that any failure to perform was occasioned by any
					 one or more of the excusable causes, and that, but for the excusable cause,
					 Contractor's progress and performance would have met the terms of the contract,
					 the delivery schedule shall be revised accordingly, subject to the rights of
					 the State under the clause entitled (in fixed-price contracts, "Termination for
					 Convenience," in cost-reimbursement contracts, "Termination"). (As used in this
					 Paragraph of this clause, the term "subcontractor" means subcontractor at any
					 tier).
(5)
Erroneous Termination for Default
.
					 If, after notice of termination of Contractor's right to proceed under the
					 provisions of this clause, it is determined for any reason that the contract
					 was not in default under the provisions of this clause, or that the delay was
					 excusable under the provisions of Paragraph (4) (Excuse for Nonperformance or
					 Delayed Performance) of this clause, the rights and obligations of the parties
					 shall, if the contract contains a clause providing for termination for
					 convenience of the State, be the same as if the notice of termination had been
					 issued pursuant to such clause.
(6)
Additional Rights and Remedies
. The
					 rights and remedies provided in this clause are in addition to any other rights
					 and remedies provided by law or under this contract.
TERMINATION UPON BANKRUPTCY
This contract may be terminated in whole or in part by
[agency]
upon written notice to Contractor, if Contractor
					 should become the subject of bankruptcy or receivership proceedings, whether
					 voluntary or involuntary, or upon the execution by Contractor of an assignment
					 for the benefit of its creditors. In the event of such termination, Contractor
					 shall be entitled to recover just and equitable compensation for satisfactory
					 work performed under this contract, but in no case shall said compensation
					 exceed the total contract price.
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 of ten
					 percent provided:
(1) the unit prices will remain the same (except for any
					 price adjustments otherwise applicable); and,
(2) the 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 3-504 (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.