Enlarge image | COMMONWEALTH TERMS AND CONDITIONS This Commonwealth Terms and Conditions form is jointly any alleged breach or failure to perform, if applicable, and any instructions or issued by the Executive Office for Administration and restrictions concerning allowable activities, costs or expenditures by the Finance (ANF), the Office of the Comptroller (CTR) and Contractor during the notice period. the Operational Services Division (OSD) for use by all 6. Confidentiality. The Contractor shall comply with M.G.L. C. 66A if the Commonwealth of Massachusetts (“State”) Departments Contractor becomes a "holder" of "personal data". The Contractor shall also and Contractors. Any changes or electronic alterations by either the protect the physical security and restrict any access to personal or other Department or the Contractor to the official version of this form, as jointly Department data in the Contractor's possession, or used by the Contractor in the published by ANF, CTR and OSD, shall be void. Upon execution of these performance of a Contract, which shall include, but is not limited to the Commonwealth Terms and Conditions by the Contractor and filing as prescribed Department's public records, documents, files, software, equipment or systems. by the Office of the Comptroller, these Commonwealth Terms and Conditions will 7. Record-keeping And Retention, Inspection Of Records. The Contractor be incorporated by reference into any Contract for Commodities and Services shall maintain records, books, files and other data as specified in a Contract and in executed by the Contractor and any State Department, in the absence of a such detail as shall properly substantiate claims for payment under a Contract, for superseding law or regulation requiring a different Contract form. Performance a minimum retention period of seven (7) years beginning on the first day after the shall include services rendered, obligations due, costs incurred, commodities and final payment under a Contract, or such longer period as is necessary for the deliverables provided and accepted by the Department, programs provided or resolution of any litigation, claim, negotiation, audit or other inquiry involving a other commitments authorized under a Contract. A deliverable shall include any Contract. The Department shall have access, as well as any parties identified tangible product to be delivered as an element of performance under a Contract. under Executive Order 195, during the Contractor’s regular business hours and The Commonwealth is entitled to ownership and possession of all deliverables upon reasonable prior notice, to such records, including on-site reviews and purchased or developed with State funds. Contract shall mean the Standard reproduction of such records at a reasonable expense. Contract Form issued jointly by ANF, CTR and OSD. 8. Assignment. The Contractor may not assign or delegate, in whole or in part, 1. Contract Effective Start Date. Notwithstanding verbal or other or otherwise transfer any liability, responsibility, obligation, duty or interest under representations by the parties, or an earlier start date indicated in a Contract, the a Contract, with the exception that the Contractor shall be authorized to assign effective start date of performance under a Contract shall be the date a Contract present and prospective claims for money due to the Contractor pursuant to a has been executed by an authorized signatory of the Contractor, the Department, a Contract in accordance with M.G.L. C. 106, §9-318. The Contractor must later date specified in the Contract or the date of any approvals required by law or provide sufficient notice of assignment and supporting documentation to enable regulation, whichever is later. the Department to verify and implement the assignment. Payments to third party 2. Payments And Compensation. The Contractor shall only be compensated for assignees will be processed as if such payments were being made directly to the performance delivered and accepted by the Department in accordance with the Contractor and these payments will be subject to intercept, offset, counter claims specific terms and conditions of a Contract. All Contract payments are subject to or any other Department rights which are available to the Department or the State appropriation pursuant to M.G.L. C. 29, §26, or the availability of sufficient non- against the Contractor. appropriated funds for the purposes of a Contract, and shall be subject to intercept 9. Subcontracting By Contractor. Any subcontract entered into by the pursuant to M.G.L. C. 7A, §3 and 815 CMR 9.00. Overpayments shall be Contractor for the purposes of fulfilling the obligations under a Contract must be reimbursed by the Contractor or may be offset by the Department from future in writing, authorized in advance by the Department and shall be consistent with payments in accordance with state finance law. Acceptance by the Contractor of and subject to the provisions of these Commonwealth Terms and Conditions and a any payment or partial payment, without any written objection by the Contractor, Contract. Subcontracts will not relieve or discharge the Contractor from any duty, shall in each instance operate as a release and discharge of the State from all obligation, responsibility or liability arising under a Contract. The Department is claims, liabilities or other obligations relating to the performance of a Contract. entitled to copies of all subcontracts and shall not be bound by any provisions 3. Contractor Payment Mechanism. All Contractors will be paid using the contained in a subcontract to which it is not a party. Payment Voucher System unless a different payment mechanism is required. The 10. Affirmative Action, Non-Discrimination In Hiring And Employment. The Contractor shall timely submit invoices (Payment Vouchers - Form PV) and Contractor shall comply with all federal and state laws, rules and regulations supporting documentation as prescribed in a Contract. The Department shall promoting fair employment practices or prohibiting employment discrimination review and return rejected invoices within fifteen (15) days of receipt with a and unfair labor practices and shall not discriminate in the hiring of any applicant written explanation for rejection. Payments shall be made in accordance with the for employment nor shall any qualified employee be demoted, discharged or bill paying policy issued by the Office of the Comptroller and 815 CMR 4.00, otherwise subject to discrimination in the tenure, position, promotional provided that payment periods listed in a Contract of less than forty-five (45) days opportunities, wages, benefits or terms and conditions of their employment from the date of receipt of an invoice shall be effective only to enable a because of race, color, national origin, ancestry, age, sex, religion, disability, Department to take advantage of early payment incentives and shall not subject handicap, sexual orientation or for exercising any rights afforded by law. The any payment made within the forty-five (45) day period to a penalty. The Contractor commits to purchasing supplies and services from certified minority or Contractor Payroll System, shall be used only for "Individual Contractors" who women-owned businesses, small businesses or businesses owned by socially or have been determined to be "Contract Employees" as a result of the Department's economically disadvantaged persons or persons with disabilities. completion of an Internal Revenue Service SS-8 form in accordance with the 11. Indemnification. Unless otherwise exempted by law, the Contractor shall Omnibus Budget Reconciliation Act (OBRA) 1990, and shall automatically indemnify and hold harmless the State, including the Department, its agents, process all state and federal mandated payroll, tax and retirement deductions. officers and employees against any and all claims, liabilities and costs for any 4. Contract Termination Or Suspension. A Contract shall terminate on the date personal injury or property damages, patent or copyright infringement or other specified in a Contract, unless this date is properly amended in accordance with all damages that the State may sustain which arise out of or in connection with the applicable laws and regulations prior to this date, or unless terminated or Contractor's performance of a Contract, including but not limited to the suspended under this Section upon prior written notice to the Contractor. The negligence, reckless or intentional conduct of the Contractor, its agents, officers, Department may terminate a Contract without cause and without penalty, or may employees or subcontractors. The Contractor shall at no time be considered an terminate or suspend a Contract if the Contractor breaches any material term or agent or representative of the Department or the State. After prompt notification condition or fails to perform or fulfill any material obligation required by a of a claim by the State, the Contractor shall have an opportunity to participate in Contract, or in the event of an elimination of an appropriation or availability of the defense of such claim and any negotiated settlement agreement or judgment. sufficient funds for the purposes of a Contract, or in the event of an unforeseen The State shall not be liable for any costs incurred by the Contractor arising under public emergency mandating immediate Department action. Upon immediate this paragraph. Any indemnification of the Contractor shall be subject to notification to the other party, neither the Department nor the Contractor shall be appropriation and applicable law. deemed to be in breach for failure or delay in performance due to Acts of God or 12. Waivers. Forbearance or indulgence in any form or manner by a party shall other causes factually beyond their control and without their fault or negligence. not be construed as a waiver, nor in any way limit the legal or equitable remedies Subcontractor failure to perform or price increases due to market fluctuations or available to that party. No waiver by either party of any default or breach shall product availability will not be deemed factually beyond the Contractor's control. constitute a waiver of any subsequent default or breach. 5. Written Notice. Any notice shall be deemed delivered and received when 13. Risk Of Loss. The Contractor shall bear the risk of loss for any Contractor submitted in writing in person or when delivered by any other appropriate method materials used for a Contract and for all deliverables, Department personal or evidencing actual receipt by the Department or the Contractor. Any written notice other data which is in the possession of the Contractor or used by the Contractor in of termination or suspension delivered to the Contractor shall state the effective the performance of a Contract until possession, ownership and full legal title to the date and period of the notice, the reasons for the termination or suspension, if deliverables are transferred to and accepted by the Department. applicable, any alleged breach or failure to perform, a reasonable period to cure Page 1. of 2.Page 1. of 2. |
Enlarge image | COMMONWEALTH TERMS AND CONDITIONS 14. Forum, Choice of Law And Mediation. Any permitted by law. All amendments must be executed by the parties in accordance actions arising out of a Contract shall be governed by the with Section 1. of these Commonwealth Terms and Conditions and filed with the laws of Massachusetts, and shall be brought and original record copy of a Contract as prescribed by CTR. The printed language of maintained in a State or federal court in Massachusetts the Standard Contract Form, as officially published by ANF, CTR and OSD, which shall have exclusive jurisdiction thereof. The which incorporates by reference these Commonwealth Terms and Conditions, Department, with the approval of the Attorney General's Office, and the shall supersede any conflicting verbal or written agreements relating to the Contractor may agree to voluntary mediation through the Massachusetts Office of performance of a Contract, or attached thereto, including contract forms, purchase Dispute Resolution (MODR) of any Contract dispute and will share the costs of orders or invoices of the Contractor. The order of priority of documents to such mediation. No legal or equitable rights of the parties shall be limited by this interpret a Contract shall be as follows: the printed language of the Section. Commonwealth Terms and Conditions, the Standard Contract Form, the 15. Contract Boilerplate Interpretation, Severability, Conflicts With Law, Department's Request for Response (RFR) solicitation document and the Integration. Any amendment or attachment to any Contract which contains Contractor’s Response to the RFR solicitation, excluding any language stricken conflicting language or has the affect of a deleting, replacing or modifying any by a Department as unacceptable and including any negotiated terms and printed language of these Commonwealth Terms and Conditions, as officially conditions allowable pursuant to law or regulation. published by ANF, CTR and OSD, shall be interpreted as superseded by the official printed language. If any provision of a Contract is found to be superseded IN WITNESS WHEREOF, The Contractor certify under the pains and by state or federal law or regulation, in whole or in part, then both parties shall be penalties of perjury that it shall comply with these Commonwealth Terms relieved of all obligations under that provision only to the extent necessary to and Conditions for any applicable Contract executed with the comply with the superseding law, provided however, that the remaining provisions Commonwealth as certified by their authorized signatory below: of the Contract, or portions thereof, shall be enforced to the fullest extent CONTRACTOR AUTHORIZED SIGNATORY:_________________________________________________________________________ (signature) Print Name: ____________________________________________________ Title: __________________________________________________________ Date: __________________________________________________________ (Check One): _______ Organization ________ Individual Full Legal Organization or Individual Name: ___________________________________________________________________________ Doing Business As: Name (If Different): _______________________________________________________________________________ Tax Identification Number: ____ ____ ____ ____ ____ ____ ____ ____ ____ Address: _______________________________________________________________________________________________________ Telephone: _______________________________________ FAX: _______________________________________________________ INSTRUCTIONS FOR FILING THE COMMONWEALTH TERMS AND CONDITIONS A “Request for Verification of Taxation Reporting Information” form (Massachusetts Substitute W-9 Format), that contains the Contractor's correct TIN, name and legal address information, must be on file with the Office of the Comptroller. If the Contractor has not previously filed this form with the Comptroller, or if the information contained on a previously filed form has changed, please fill out a W- 9 form and return it attached to the executed COMMONWEALTH TERMS AND CONDITIONS. If the Contractor is responding to a Request for Response (RFR), the COMMONWEALTH TERMS AND CONDITIONS must be submitted with the Response to RFR or as specified in the RFR. Otherwise, Departments or Contractors must timely submit the completed and properly executed COMMONWEALTH TERMS AND CONDITIONS (and the W-9 form if applicable) to the: Payee and Payments Unit, Office of the Comptroller, 9th Floor, One Ashburton Place, Boston, MA 02108 in order to record the filing of this form on the MMARS Vendor File. Contractors are required to execute and file this form only once. Clear All Page 2. of 2.Page 2. of 2. |