8. Attorney’s Fees and Expenses.
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Each party agrees that under no circumstances shall it be obligated to pay any attorneys' fees or costs
of legal action to the other party.
9. Authority to Contract.
Contractor warrants: (1) that it is a validly organized business with valid authority to enter into this
Agreement; (2) that it is qualified to do business and in good standing in the State of Mississippi; (3)
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, (4) 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.
10. Availability of Funds.
It is expressly understood and agreed that the obligation of MSDH to proceed under this Agreement
is conditioned upon the appropriation of funds by the Mississippi State Legislature and the receipt
of the appropriated funds. If the funds anticipated for the continuing time fulfillment of the
Agreement are, at any time, not forthcoming or insufficient, regardless of the source of funding,
MSDH shall have the right, upon 10 business days' written notice to Contractor, to terminate this
Agreement without damage, penalty, cost, or expense to the MSDH of any kind whatsoever. The
effective date of termination shall be as specified in the notice of termination.
11. Compliance with Equal Opportunity In Employment Policy.
Contractor understands that the MSDH is an equal opportunity employer and therefore maintains a
policy that prohibits unlawful discrimination based on race, color, creed, sex, age, national origin,
physical handicap, disability, genetic information, or any other consideration made unlawful by
federal, state, or local laws. All such discrimination is unlawful, and Contractor agrees during the
term of the agreement that Contractor will strictly adhere to this policy in its employment practices
and provision of services.
12. Compliance with Laws.
Contractor shall comply with, and all activities under this Agreement shall be subject to, all
applicable federal, state, and local laws and regulations, as now existing and as may be amended or
modified.
13. Confidentiality.
MSDH is a public agency of the State of Mississippi and is subject to the Mississippi Public Records
Act of 1983. Mississippi Code Annotated §§ 25-61-1, et seq. If a public records request is made for
any information provided to MSDH by Contractor, MSDH shall follow the provisions of the act as
well as (where applicable) Mississippi Code Annotated §79-23-1 before disclosing such information.
This is unless Contractor has previously indicated the information requested is not a trade secret or
confidential commercial or financial information or otherwise not exempt from the Public Records
Act. The MSDH shall not be liable to the Contractor for disclosure of information required by court
order or required by law.
14. Contract Assignment and Subcontracting.
Contractor acknowledges that it was selected by MSDH to perform the services required hereunder
based, in part, upon Contractor’s special skills and expertise. Contractor shall not assign,
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subcontract, or otherwise transfer this Agreement, in whole or in part, without the prior written
consent of MSDH, which may, in its sole discretion, approve or deny without reason. Any attempted
assignment or transfer of Contractor’s obligations hereunder without the consent of the MSDH shall
be null and void. Approval of a subcontract by the MSDH shall not be deemed to be approval of the
incurrence of any additional obligation of the MSDH. Subcontracts shall be subject to the terms and
conditions of this Agreement and to any conditions of approval that MSDH may deem necessary.
Subject to the foregoing, this Agreement shall be binding upon the respective successors and assigns
of the parties.
15. Contractor Personnel.
The MSDH shall, throughout the life of the contract, have the right of reasonable rejection and
approval of staff or subcontractors assigned to the work by the Contractor. If the MSDH reasonably
rejects staff or subcontractors, Contractor shall provide replacement staff or subcontractors
satisfactory to the MSDH in a timely manner and at no additional cost to the MSDH. The day-to-
day supervision and control of Contractor’s employees and subcontractors is the sole responsibility
of Contractor
16. Copyrights.
Contractor agrees that the rights and title to any copyrightable material first produced under this
Agreement belong to MSDH. Contractor hereby grants to MSDH 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 which is incorporated in the material furnished under the
Agreement, regardless of whether it was first produced under this 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.
17. Disclosure of Confidential Information Required by Law.
In the event that either party to this Agreement receives notice that a third-party has served upon it a
subpoena or other validly issued administrative or judicial process ordering divulgence of the other
party’s data or other information, the party subject to the subpoena or other legal process shall
promptly inform the other party at the earliest reasonable opportunity, unless prohibited by law from
doing so. Thereafter, the party subject to the legal process shall respond 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 the Public Records Act, Mississippi Code Annotated
§§ 25-61-1, et seq.
18. E-Payment.
Contractor agrees to accept all payments in United States currency via the State of Mississippi’s
electronic payment and remittance vehicle. The Agency agrees to make payment in accordance with
Mississippi “Timely Payments for Purchases by Public Bodies” laws, which generally provide for
payment of undisputed amounts by the Agency within 45 calendar days of receipt of invoice.
Mississippi Code Annotated § 31-7-301, et seq.
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19. E-Verification
If applicable, Contractor represents and warrants that it will ensure its compliance with the
Mississippi Employment Protection Act and will register and participate in the status verification
system for all newly hired employees. Mississippi Code Annotated §§ 71-11-1 and 71-11-3.
Contractor agrees to provide a copy of each verification upon request of the MSDH subject to
approval by any agencies of the United States Government. Contractor further represents and
warrants that any person assigned to perform services hereafter meets the employment eligibility
requirements of all immigration laws. The breach of this clause may subject Contractor to the
following: (1) termination of this contract and exclusion pursuant to Chapter 15 of the Public
Procurement Review Board Office of Personal Service Contract Review Rules and Regulations; (2)
the loss of any license, permit, certification or other document granted to Contractor by an agency,
department, or governmental entity for the right to do business in Mississippi; or (3) both. In the event
of such termination, Contractor would also be liable for any additional costs incurred by the Agency
due to Contract cancellation or loss of license or permit to do business in the state.
20. Failure to Deliver.
In the event of failure of Contractor to deliver services in accordance with the contract terms and
conditions, the MSDH, 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 MSDH may have.
21. Failure to Enforce Does Not Constitute Waiver.
Failure by the MSDH 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 MSDH to enforce any provision at any time in accordance with
its terms.
22. Indemnification.
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.
23. 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 MSDH. Nothing contained herein shall be deemed or
construed by the MSDH, 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 MSDH and Contractor. Neither the method of computation of fees or other
charges, nor any other provision contained herein, nor any acts of the MSDH or Contractor hereunder
creates or shall be deemed to create a relationship other than the independent relationship of the
MSDH and Contractor.
Contractor’s personnel shall not be deemed in any way, directly or indirectly, expressly or by
implication, to be employees of the MSDH. Neither Contractor nor its employees shall, under any
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circumstances, be considered servants, agents, or employees of the MSDH, and the MSDH shall be at
no time legally responsible for any negligence or other wrongdoing by Contractor, its servants, agents,
or employees.
The MSDH 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 MSDH shall not provide to Contractor any insurance coverage or
other benefits, including Workers’ Compensation, normally provided by the MSDH for its employees.
24. Information Designated by Agency as Confidential.
Any liability resulting from the wrongful disclosure of confidential information on the part of
Contractor, or its subcontractor(s) shall rest with Contractor. Disclosure of any confidential
information by Contractor or its subcontractor(s) without the express written approval of the MSDH
may result in the immediate termination of this Agreement.
25. Infringement Identification.
Contractor warrants that the materials and deliverables provided to the MSDH under this Agreement,
and their use by the MSDH, 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 MSDH the right
to continue using such items without additional cost to the Agency. Should Contractor fail to obtain
for the MSDH 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 MSDH to discontinue using such items, in which case Contractor will refund to the
MSDH the fees previously paid by the MSDH for the items the customer may no longer use, and
shall compensate the MSDH 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 10
business days of notice to the MSDH to discontinue said use.
Scope of Indemnification: Provided that the MSDH promptly notifies Contractor in writing of any
alleged infringement claim of which it has knowledge, Contractor shall defend, indemnify, and hold
harmless the MSDH against any such claims, including but not limited to any expenses, costs,
damages and attorney fees that a court finally awards for infringement based on the programs and
deliverables provided under this Agreement. In the MSDH’s sole discretion, upon approval of the
Office of the Mississippi Attorney General and the MSDH, 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 Office of the Mississippi Attorney General and the MSDH.
Contractor shall be solely responsible for all costs and/or expenses associated with such defense, and
the MSDH shall be entitled to participate in said defense. Contractor shall not settle any claim, suit,
etc. without the concurrence of the Office of the Mississippi Attorney General and the MSDH, which
shall not be unreasonably withheld.
This page summarizes the opportunity, including an overview and a preview of the attached documents.