00011852_Attachment A_Sample Price Agreement_Final~1.pdf

DAS Version 2.0 – OPO PSK/PA Form C007-G051223 Page 1 of 75

ATTACHMENT A

SAMPLE PRICE AGREEMENT

State of Oregon – Department of Transportation

Price Agreement for Goods and Services

PRICE AGREEMENT #: (ORBuys #: )

PROJECT NAME: ODOT Account Manager for OReGO Road Usage Charge

Price Agreement includes federal funds: No No DBE Goal Assigned Certified Small Business Aspirational Target (for State-only funded and will exceed $100,000, including as amended; see Exhibit H)

A 12% Certified Small Business Aspirational Target will be assigned to WOCs that are State-only funded and that exceed $100,000, including as amended;

see Exhibit H.

12%

Assigned to WOCs when applicable

Expenditure Account (EA) #: Agency Key #: N/A

This Price Agreement for Services (this “Price Agreement”) is by and between the State of Oregon, acting through its Oregon Department of Transportation (“Agency” or “ODOT”) and ________, a [_______] doing business as _____ (“Contractor”) and is effective as of the Effective Date.

Name:

Address:

Phone:

Fax:

Email:

Agency’s Contract Administrator for this Price Agreement:

______@odot.oregon.gov

Address:

Fax:

Email:

Contractor’s Contract Administrator for this Price Agreement:

______@_____.com

Email:

Agency’s Project Manager (if different than Contract Administrator)

Email:

Alternate Contact for Contractor

Either party may change its Contract Administrator by providing the other notice in compliance with Section 17.6 of this Price Agreement and a formal amendment is processed.

mailto:______@odot.state.or.us mailto:______@_____.com

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1. Price Agreement Term.

1. Effective Date; Expiration and Work Order (“Work Order Contract” or “WOC”) Assignment Period;

Termination.

1.1. Effective Date. This Price Agreement shall become effective on the date this Price Agreement has been signed by the Parties and all required State of Oregon approvals have been obtained.

1.2. Expiration and WOC Assignment Period

i. Expiration. This Price Agreement shall have a limited WOC assignment period but this Price Agreement will not expire until the later of the following occurs: (1) the expiration of the WOC assignment period, or (2) the expiration or termination of all WOCs assigned under this Price Agreement.

ii. WOC Assignment Period. Unless this Price Agreement is sooner terminated, the initial WOC assignment period ends 6 years from the Effective Date of this Price Agreement. Depending on Contractor performance, need and available funding, PAs may be amended to extend the WOC assignment period for up to an additional 4 years beyond the initial WOC assignment period.

A WOC is considered assigned (for purposes of meeting the WOC Assignment Period limitation) when the WOC selection process is completed and the selection documentation has been submitted to the ODOT Procurement Office. All WOC assignments are tentative until negotiations are successfully completed, all required signatures have been obtained on the WOC, and Agency has issued a notice to proceed (“NTP”) to Contractor.

2. Price Agreement Documents. This Price Agreement consists of the following documents, which are listed in descending order of precedence:

2.1. this Price Agreement less all exhibits

2.2. Exhibit D (Federal Terms and Conditions)

2.3. Exhibit C (Special Terms and Conditions)

2.4. Exhibit L, (Security and Privacy Provisions)

2.5. Exhibit J, (Treasury Requirements for ACH Transactions and Merchant Card Transactions)

2.6. Exhibit A (Statement of Work)

2.7. Exhibit B (Required Insurance)

2.8. Exhibit E (Independent Contractor Certification)

2.9. Exhibit F (Compensation Provisions)

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2.10. Exhibit G (Title VI, Non-Discrimination Provisions)

2.11. Exhibit H (Certified Small Business Aspirational Target Provisions)

2.12. Exhibit I (Work Order Contract Assignment and Requirements)

The foregoing documents and Exhibits are attached hereto and made a part of the Price Agreement by this reference.

3. Services.

3.1. Performance of Services. Contractor shall perform the services (the “Services”) and deliver to Agency the deliverables (“Deliverables”) as described in any WOCs executed under this Price Agreement. The Services and Deliverables included in a WOC must be within the Scope of Services set forth in Exhibit A, attached and incorporated into this Price Agreement by this reference. Contractor agrees to perform the Services and provide to Agency the Deliverables required under each WOC in accordance with the terms and conditions for WOCs as set forth in this Price Agreement.

3.2. Submission and Acceptance of Deliverables. When the Statement of Work requires Contractor to deliver Deliverables to Agency, then Contractor shall deliver Deliverables that comply with the requirements and acceptance criteria set forth in the Statement of Work.

Contractor shall provide written notice to Agency upon delivery of a completed Deliverables to Agency. By no later than (i) 15 business days after receipt of such notice, or (ii) the date or period for review set forth in the Statement of Work, Agency will determine whether the Deliverables has the characteristics and otherwise meets the acceptance criteria set forth in the Statement of Work. If Agency determines that the Deliverables has the characteristics and meets acceptance criteria set forth in the Statement of Work in all material respects, Agency will notify Contractor in writing of Agency’s acceptance of the Deliverables.

3.3. Rejection of Deliverables; Corrections. If Agency determines that a Deliverables does not have the characteristics or otherwise meet the acceptance criteria set forth in the Statement of Work in all material respects, Agency will notify Contractor in writing of Agency’s rejection of the Deliverables and describe in reasonable detail in such notice the Agency’s basis for rejection of the Deliverables. Upon receipt of notice of non-acceptance, Contractor shall, within a 15-business day period, modify or improve the Deliverables at Contractor’s sole expense so that the Deliverables has the characteristics described in the Statement of Work and meets, in all material respects, the acceptance criteria, and notify the Agency in writing that it has completed such modifications or improvements and re-tender the Deliverables to Agency. Agency will thereafter review the modified or improved Deliverables within 15 business days of receipt of the Contractor's delivery of the Deliverables. Failure of the Deliverables to have the characteristics or meet in all material respects the acceptance criteria set forth in the Statement of Work after the second submission will constitute a default by Contractor. In the event of such default, Agency may either, (i) notify Contractor of such default and instruct Contractor to modify or improve the Deliverables as set forth in this Section, or (ii) notify Contractor of such default and pursue its remedies for default provided for by law or the terms of this Price Agreement.

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4. Compensation.

4.1. Not to Exceed Compensation. There is no guarantee that any specific amount of work or overall dollar amounts will be assigned via WOCs under this Price Agreement. The maximum, not-to-exceed compensation payable to Contractor for all WOCs issued under this Price Agreement, which includes any allowable expenses, is $***,***.**. The maximum not-to-exceed amount includes $_____ for contingency tasks, each of which must be authorized separately by Agency. Agency will not pay Contractor any amount in excess of the not-to-exceed compensation of this Price Agreement or any assigned WOC and will not pay for Services performed before the Effective Date or after the expiration or termination of this Price Agreement or any assigned WOC. If the maximum compensation is increased by amendment of this Price Agreement, the amendment must be fully effective before Contractor performs Services subject to the amendment. The payment methodology, basis for payment, invoice requirements and other provisions related to Contractor compensation are set forth in Exhibit F, Compensation.

4.2. Payments. Payments, including interim payments, to Contractor are subject to ORS 293.462, will be made only for completed and accepted Deliverables and Services, and will be made in accordance with the payment schedule and requirements set forth in Exhibit A.

4.3. Invoices. Contractor shall submit invoices to Agency as set forth in the Statement of Work or, if not set forth therein, to Agency’s Contract Administrator. Contractor may submit invoices in accordance with the payment schedule set forth in the Statement of Work or, if no payment schedule is set forth therein, then no more frequently than once per month for accepted Deliverables and Services The invoices must describe all Services performed with particularity, including the dates Contractor performed the Services for which it is requesting payment, and by whom the Services were performed and shall itemize and explain all expenses that this Price Agreement requires Agency to pay and for which Contractor claims reimbursement. Each invoice must also include the total amount invoiced to date by Contractor prior to the current invoice. Contractor will specifically note in the appropriate invoice when it has requested payment for one-third and two-thirds of the maximum, not-to-exceed compensation.

4.4. Expenses. Agency will not pay or reimburse any expenses incurred by Contractor during the completion of the Services except as authorized in the Statement Work or elsewhere in this Price Agreement. Any such authorized travel expenses must comply with the Oregon Travel Policy available on the Internet at:

https://www.oregon.gov/das/Financial/Acctng/Documents/40.10.00.pdf

4.5. Funds Available and Authorized. Contractor will not be compensated for Services performed under this Price Agreement by any agency or department of the State of Oregon other than Agency. Agency believes that as of the effective date of the WOC, it has sufficient funds currently available and authorized for expenditure to make payments under the WOC within Agency’s biennial appropriation or limitation. Contractor understands and agrees that Agency’s payments under this Price Agreement are contingent on Agency receiving appropriations, limitations, or other expenditure authority sufficient to allow Agency, in the https://www.oregon.gov/das/Financial/Acctng/Documents/40.10.00.pdf

DAS Version 2.0 – OPO PSK/PA Form C007-G051223 Page 5 of 75 exercise of its reasonable administrative discretion, to continue to make payments under this Price Agreement.

4.6. RUCP Payments. In the RUCP mileage reporting and charge collection phase, Agency will pay Contractor the compensation established by the WOC or WOCs that address payment to Contractor of the amounts ascribed to Contractor’s performance of the Services necessary for the conduct of Contractor’s mileage reporting and charge collection operations.

Contractor will submit to Agency invoices for the payment of the agreed compensation on a quarterly basis no later than the 10th day of the month immediately following the quarter for which RUCP charges were collected. Contractor’s fee in respect of any volunteer who has been enrolled for less than a full billing quarter shall be prorated by multiplying the full quarterly fee per volunteer by a fraction in which the numerator is the number of days the particular volunteer was enrolled and the denominator is the number of days in the quarter.

Agency’s payment to Contractor will be due 30 days after the date of Contractor’s delivery of the invoice to Agency. Past due amounts shall bear interest, in accordance with the requirements of ORS 293.462(3), at the rate of two-thirds of one percent per month beginning from the date first due until paid in full. In compliance with ORS chapter 295, as described below in Section 11.5., Contractor shall deposit all funds Contractor collects from RUCP Participants daily into an Agency-approved account maintained at an Oregon State Treasurer approved depository bank.

5. Contractor’s Personnel.

5.1. Key Persons. Contractor acknowledges and agrees that Agency selected Contractor and is entering into this Price Agreement, because of the special qualifications of Contractor's key persons identified in the Statement of Work (each a “Key Person” and, together, “Key Persons”). Neither Contractor nor a Key Person may delegate performance of the powers and responsibilities that a Key Person is required to provide under this Price Agreement to another Contractor employee, subcontractor or agent without first obtaining the written consent of Agency. Further, Contractor may not re-assign or transfer a Key Person to other duties or positions such that the Key Person is no longer available to provide the Agency with the required expertise, experience, judgment, and personal attention, without first obtaining Agency's written consent to such re-assignment or transfer, which Agency will not unreasonably withhold or delay. Notwithstanding the foregoing, Contractor may replace a Key Person in the event the Key Person is no longer available due to circumstances beyond Contractor’s reasonable control, such as death, illness, or termination of employment with Contractor. In the event Contractor requests that Agency approve a re-assignment or transfer of a Key Person, or if Contractor must replace a Key Person, Agency may interview, review the qualifications of, and approve or reject the proposed replacement for the Key Person. Any such replacement must have substantially equivalent or better qualifications than the Key Person being replaced. Any replacement personnel approved by Agency in writing (email acceptable) will thereafter be deemed a Key Person for purposes of this Price Agreement, and the Statement of Work will be deemed amended to include such Key Person.

5.2. Payment for Replacement Key Personnel. If Agency is paying Contractor on an hourly or other periodic basis, then Contractor will not charge Agency, and Agency will not pay, for a

DAS Version 2.0 – OPO PSK/PA Form C007-G051223 Page 6 of 75 replacement Key Person while such replacement acquires the project knowledge and skills necessary to perform the Services. Such period of non-charge will be agreed upon by the parties.

5.3. State Premises. Contractor and Contractor staff shall comply with all policies, rules, procedures, and regulations established by Agency and the State for access to and activities in and around premises controlled by Agency or any other agency of the State.

6. Independent Contractor; Responsibility For Taxes And Withholding

6.1. Independent Contractor. Contractor shall perform all Services as an independent contractor.

Agency reserves the right (i) to determine and modify the delivery schedule for the Services and (ii) to evaluate the quality of the Services; however, Agency may not and will not control the means or manner of Contractor's performance. Contractor is responsible for determining the appropriate means and manner of performing the Services.

6.2. No Conflicts. Contractor, by signature to this Price Agreement, represents and warrants that Contractor’s performance of the Services under this Price Agreement creates no potential or actual conflict of interest as defined by ORS 244; and no statutes, rules or regulations of any State of Oregon or federal agency for which Contractor currently performs work would prohibit Contractor from performing the Services under this Price Agreement.

6.3. Affiliation. Contractor understands and agrees that it is not an "officer," "employee," or "agent" of the State of Oregon, as those terms are used in ORS 30.265 or otherwise.

6.4. Taxes and Benefits. Contractor is responsible for all federal or state taxes applicable to compensation or payments paid to Contractor under this Price Agreement and, unless required by applicable law, Agency will not withhold from such compensation or payments any amount to cover Contractor's federal or state tax obligations. Contractor is not eligible for any social security, unemployment insurance or workers' compensation benefits from compensation or payments paid to Contractor under this Price Agreement, except as a self-employed individual. Throughout the duration of the Price Agreement , Contractor shall submit an updated W-9 form (https://www.irs.gov/pub/irs-pdf/fw9.pdf) to Agency whenever Contractor’s backup withholding status or any other information on the form changes.

7. Subcontracts, Successors, And Assignments

7.1. Subcontracts. Contractor shall not enter into any subcontracts for any of the Services required by this Price Agreement without Agency's prior written consent. In addition to any other provisions Agency may require, Contractor shall include in any permitted subcontract under this Price Agreement provisions to ensure that Agency will receive the benefit of subcontractor’s performance as if the subcontractor were Contractor. Agency’s consent to any subcontract does not relieve Contractor of any of its duties or obligations under this Price Agreement.

https://www.irs.gov/pub/irs-pdf/fw9.pdf

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7.2. Successors and Assigns. The provisions of this Price Agreement are binding upon and inure to the benefit of the parties to this Price Agreement, their respective successors, and permitted assigns, if any.

7.3. No Assignment. Contractor shall not assign or transfer any of its rights or delegate its obligations under this Price Agreement without Agency’s prior written consent.

8. Representations and Warranties.

8.1. Contractor’s General Representations and Warranties. Contractor represents and warrants to Agency that:

8.1.1. Contractor has the power and authority to enter into and perform this Price Agreement and any Work Order Contracts entered into under the Price Agreement;

8.1.2. The Work Order Contract, when executed and delivered under the Price Agreement, is a valid and binding obligation of Contractor enforceable in accordance with its terms;

8.1.3. Contractor shall, at all times during the term of this Price Agreement, be qualified, professionally competent, and duly licensed to perform the Services;

8.1.4. Contractor prepared its proposal related to this Price Agreement, if any, independently from all other proposers, and without collusion, fraud, or other dishonesty; and

8.1.5. Contractor (to the best of Contractor’s knowledge, after due inquiry), for a period of no fewer than six calendar years preceding the Effective Date, faithfully has complied with:

8.1.5.1. All tax laws of this state, including but not limited to ORS 305.620 and ORS chapters 316, 317, and 318;

8.1.5.2. Any tax provisions imposed by a political subdivision of this state that applied to Contractor, to Contractor’s property, operations, receipts, or income, or to Contractor’s performance of or compensation for any work performed by Contractor;

8.1.5.3. Any tax provisions imposed by a political subdivision of this State that applied to Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor; and

8.1.5.4. Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions.

8.1.6. Contractor has no undisclosed liquidated and delinquent debt owed to the State or any department or agency of the State.

8.2. Contractor’s Performance Warranties. Contractor represents and warrants to Agency that:

8.2.1. Contractor has the skill and knowledge possessed by well-informed members of its industry, trade or profession and Contractor shall apply that skill and knowledge with

DAS Version 2.0 – OPO PSK/PA Form C007-G051223 Page 8 of 75 care and diligence to perform the Services in a professional manner and in accordance with the highest standards prevalent in Contractor’s industry, trade or profession;

8.2.2. The OAM System and each Deliverables delivered by Contractor pursuant to the Services will materially comply with any service descriptions, specifications, standards or requirements set forth in this Price Agreement;

8.2.3. Except as otherwise provided in this Price Agreement (including Section 9), Contractor shall transfer all Deliverables to Agency free and clear of any and all restrictions on or conditions of transfer, modification, licensing, sublicensing, direct or indirect distribution, or assignment, and free and clear of any and all liens, claims, mortgages, security interests, liabilities, and encumbrances of any kind; and

8.2.4. Except as otherwise set forth in this Price Agreement or any WOC, any subcontractors performing work for Contractor under this Price Agreement have assigned all of their rights in the Deliverables to Contractor or Agency and no third party has any right, title or interest in any Deliverables supplied to Agency under this Price Agreement.

8.2.5. Contractor will maintain, operate and enforce, prior to the receipt of, and during the period in which Contractor has possession of or access to, any Personal Information (as that term is used in the Oregon Consumer Information Protection Act ORS 646A.602(11) an active and effective information security program that at minimum complies with the requirements of the Oregon Consumer Information Protection Act (ORS 646A.600

et. seq.) to preserve the security and confidentiality of all Personal Information that is contained in any document, record, compilation of information or other item to which Contractor receives access, possession, custody or control.

8.2.6. At the time of delivery and installation of the software products provided through the WOC, those products shall be free of what are commonly defined as viruses, worms, spyware, and other malicious defects that will hamper performance of the software, collect unlawful personally identifiable information on users, or prevent the software from performing as required under the terms and conditions of the WOC.

8.3. Warranties cumulative. The warranties set forth in Section 8 are in addition to, and not in lieu of, any other warranties set forth elsewhere in this Price Agreement.

9. Ownership of Work Product. Software Escrow.

9.1. Definitions. As used in this Section 9, and elsewhere in this Price Agreement, the following terms have the meanings set forth below:

9.1.1. “Contractor Intellectual Property” means any intellectual property owned by Contractor and developed independently from the Services.

9.1.2. “Third Party Intellectual Property” means any intellectual property owned by parties other than Agency or Contractor.

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9.1.3. “Work Product” means everything that is originally made, conceived, discovered, or reduced to practice by Contractor or Contractor’s subcontractors or agents (either alone or with others) pursuant to this Price Agreement , including every invention, modification, discovery, design, development, customization, configuration, improvement, process, work of authorship, documentation, formula, datum, technique, know how, secret, or intellectual property right whatsoever or any interest therein (whether patentable or not patentable or registerable under copyright or similar statutes or subject to analogous protection).

9.1.4. “Agency Intellectual Property” means any intellectual property owned by Agency independent of the Work performed under this Price Agreement and derivative works and compilations of Agency Intellectual Property.

9.1.5. “Agency Data” means information created and information stored by Agency or Contractor on behalf of Agency through the Services, including data of RUCP Participants. Agency Data is Confidential Information.

9.2. Contractor Intellectual Property. Contractor retains ownership of all Contractor Intellectual Property that Contractor delivers to Agency pursuant to the Services performed under this Price Agreement or under any WOC issued under this Price Agreement, including all derivative works and compilations of Contractor Intellectual Property. Contractor grants Agency a perpetual, non-exclusive, irrevocable, royalty-free, universal, license to use, copy, display, distribute, transmit and prepare derivative works of Contractor Intellectual Property for the purposes of Agency’s Road Usage Charging Program (“RUCP”) and to authorize others to do the same on Agency’s behalf for the term of the WOC and subject to any limitations expressly set forth in a WOC, if applicable.

9.3. Work Product. Except as is set forth in section 9.5, below, Contractor owns all Work Product.

Contractor grants Agency a non-exclusive, irrevocable, royalty-free, perpetual, universal license to use, copy, display, distribute, transmit and prepare derivative works of Work Product and to authorize others to do the same on Agency’s behalf.

9.4. Third Party Intellectual Property. Contractor shall secure on Agency’s behalf, and subject to Agency’s approval, a license to Third Party Intellectual Property sufficient to fulfill the business objectives identified in this Price Agreement, and to authorize others to do the same on Agency’s behalf.

9.5. Agency Intellectual Property; Data and Background Information. Agency owns all Agency Intellectual Property and Agency Data, Agency Standards Documents, Agency marks, and background information provided to Contractor pursuant to this Agreement. For the purposes of this Contract, RUCP Participant data is Agency Data, and such RUCP Participant data remains subject to confidentiality provisions herein and in Oregon Revised Statutes. Agency owns all logos, design, trademarks used on website. Agency owns all elements of website design and the URL of the website. Agency owns any Deliverable expressly identified as Agency Intellectual Property in a WOC. Agency owns all Agency Standards Documents set forth in Exhibit A, Scope of Services. Agency grants Contractor a non-exclusive, royalty-free, universal license to use, copy, display, distribute, transmit and prepare derivative works of Agency Intellectual Property

DAS Version 2.0 – OPO PSK/PA Form C007-G051223 Page 10 of 75 and Agency Data and background information only to fulfill the purposes of this Price Agreement. Agency’s license to Contractor is limited to the duration of this Price Agreement and the confidentiality obligations of this Price Agreement. Agency owns, including rights to use, distribute, update, modify, produce derivative works based on, and otherwise support any design or layout documents or work products produced through WOCs.

9.6. Software Escrow

9.6.1. Contractor shall, in accordance to the Schedule set forth in any WOC a, deliver a true and correct copy of the most recent version of the source code for the OAM System, an executable machine readable version of the OAM System, program documentation sufficient to allow a competent programmer to use and maintain the source code programs (“Deposited Programs”), and the name, email or post office address, and telephone number of a programmer sufficiently knowledgeable of the Deposited Programs to assist in maintaining the Deposited Programs, to an escrow agent selected by Contractor and approved by Agency.

Contractor and Agency shall promptly execute a three party escrow agreement which shall govern the terms of the escrow arrangement. The escrow agreement shall authorize the escrow agent to release the Deposited Programs to Agency upon the occurrence of any of the following:

9.6.1.1. Contractor institutes or has instituted against it insolvency, receivership or bankruptcy proceedings, or makes an assignment for the benefit of creditors, and same has not been discharged or terminated without any prejudice to Agency’s rights or interests under this Price Agreement within 30 days; or

9.6.1.2. If any other event or circumstance occurs which demonstrates with reasonable certainty the inability or unwillingness of Contractor to fulfill its obligations to Agency under this Price Agreement, the escrow agreement or any software maintenance and support agreement between the parties.

9.6.2. Agency shall pay all costs of providing and maintaining the Deposited Programs placed in escrow, including the fees of the escrow agent. The copies of the Deposited Programs placed in escrow shall be reproduced and maintained on magnetic or optically encoded media or other commonly accepted data recording protocol. When a change is made to the Deposited Programs by or on behalf of Contractor, during the term of the escrow agreement, the revised Deposited Programs, including the change, shall be delivered to the escrow agent not later than ninety (90) days after the change is affected by or on behalf of Contractor. Agency and its consultants shall be entitled from time to time to require the escrow agent to confirm that the source code builds functional software.

9.6.3. Upon receipt of the Deposited Programs by Agency under this paragraph, Agency shall treat the Deposited Programs as confidential information to the fullest extent authorized by the Oregon Public Records Law. Notwithstanding such delivery to State, the Deposited Programs shall remain the property of Contractor or its successor. Agency, and its consultants and contractors, shall have the right to use the Deposited Programs in conjunction with and to update, modify and otherwise support the specified OAM System for purposes of Road Usage Pricing including per-mile RUC.

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9.6.4. All copies of the Deposited Programs in escrow must be destroyed within 10 days of termination of the Price Agreement and all associated WOCs.

9.7. No Rights. Except as expressly set forth in this Price Agreement, nothing in this Price Agreement may be construed as granting to or conferring upon Contractor any right, title, or interest in any intellectual property that is now owned or subsequently owned by Agency.

Except as expressly set forth in this Price Agreement, nothing in this Price Agreement may be construed as granting to or conferring upon Agency any right, title, or interest in any Contractor Intellectual Property that is now owned or subsequently owned by Contractor.

9.8. Marks. Neither party grants the other the right to use its trademarks, trade names, service marks or other designations in any promotion or publication without prior written consent.

Each party grants only the licenses and rights specified in this Price Agreement.

9.9. Competing Services. Subject to the provisions of this Section 9, and Contractor’s obligations with respect to Confidential Information, including as defined in Section 10, nothing in this Price Agreement precludes or limits in any way the right of Contractor to: (i) provide services similar to those contemplated in this Price Agreement , or consulting or other services of any kind or nature whatsoever to any individual or entity as Contractor in its sole discretion deems appropriate, or (ii) develop for Contractor or for others, Deliverables or other materials that are competitive with those produced as a result of the Services provided hereunder, irrespective of their similarity to the Deliverables delivered pursuant to this Price Agreement . Each party is free to utilize any concepts, processes, know-how, techniques, improvements or other methods it may develop during the course of performance under this Price Agreement free of any use restriction or payment obligation to the other.

9.10. Non-RUC Information. In addition to any other amendments that may be made to this Price Agreement (or under any WOC issued under this Price Agreement), the Parties may amend this Price Agreement (or a WOC issued under this Price Agreement) to provide for Agency’s acquisition from Contractor of Participant information that is in addition to the information and data that Contractor shall transmit to or share with Agency under this Price Agreement for the purposes of conducting the OReGO (“Non-RUC Information”). On the request of Agency, Contractor shall, within 14 days or such longer time as Agency may specify, provide Agency with a description of the Non-RUC Information that or obtains or develops in Contractor’s ordinary course of business. If Agency determines that any Non- RUC Information would be beneficial to Agency’s programs or operations, Agency will notify Contractor of the character of the information Agency desires to obtain. In that event, Contractor and Agency promptly shall engage in good-faith negotiations to amend this Price Agreement (or any WOC issued under this Price Agreement) to provide for Agency’s acquisition, use or licensing of the Non-RUC Information and to establish reasonable compensation to Contractor for Contractor’s provision of the Non-RUC Information.

10. Confidential Information.

10.1. Confidential Information. Contractor acknowledges that it and its employees, officers, directors, agents or subcontractors (collectively, “Contractor Staff”) may, in the course of performing the Services under this Price Agreement, be exposed to or acquire information

DAS Version 2.0 – OPO PSK/PA Form C007-G051223 Page 12 of 75 that is confidential to Agency or RUCP Participants. Any and all information of any form (including but not limited to Agency Data, records, files, papers, materials, documents, and communications in written, verbal, oral and electronic form) that Contractor or any Contractor Staff may come into contact with or that is obtained by Contractor or Contractor Staff in the performance of this Price Agreement shall be considered for the purposes of this Price Agreement the confidential information of Agency (“Confidential Information”).

Contractor shall and shall cause Contractor Staff to treat any reports or other documents or items (including software) that result from the use of the Confidential Information in the same manner as the Confidential Information. Confidential Information does not include information that (i) is or becomes (other than by disclosure by Contractor or Contractor Staff acquiring such information) publicly known or is contained in a publicly available document except to the extent applicable law still restricts disclosure; (ii) is furnished by Agency to others without restrictions similar to those imposed by this Price Agreement ; (iii) is rightfully in Contractor’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Price Agreement ; (iv) is obtained from a source other than Agency without the obligation of confidentiality, (v) is disclosed with the written consent of Agency, or; (vi) is independently developed by Contractor or Contractor Staff who can be shown to have had no access to the Confidential Information.

10.2. Non-Disclosure. Contractor shall hold, and shall cause Contractor Staff to hold, all Confidential Information in confidence, using the highest standard of care applicable, and shall not copy, reproduce, sell, assign, license, market, transfer, distribute, or otherwise dispose of, give, make available or disclose, in whole or in part, directly or indirectly, Confidential Information to third parties (other than its authorized subcontractors), or use Confidential Information for any purposes whatsoever other than the provision of Services to Agency hereunder, and shall advise Contractor Staff of their obligations to keep Confidential Information confidential. Contractor shall assist Agency in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the generality of the foregoing, Contractor shall advise Agency immediately in the event Contractor learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Price Agreement, and Contractor will at its expense cooperate with Agency in seeking injunctive or other equitable relief in the name of Agency or Contractor against any such person. Contractor shall not at any time during or after the term of this Price Agreement or any WOC, except as directed by Agency, disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this Price Agreement. Upon expiration or termination of this Price Agreement or at Agency’s request, Contractor shall deliver to Agency all documents, papers, and other matter in Contractor's possession that embody Confidential Information. Notwithstanding the foregoing and unless otherwise specified in this Price Agreement, Contractor may keep one copy of such Confidential Information necessary for quality assurance, audits and evidence of performance of the Services.

10.3. Confidentiality Policies. Contractor shall, upon Agency’s request, provide its policies and procedures for safeguarding Confidential Information to Agency for Agency’s review and consent. Such policies must address information conveyed in oral, written, and electronic

DAS Version 2.0 – OPO PSK/PA Form C007-G051223 Page 13 of 75 format and include procedures for how Contractor will respond when a violation or possible violation occurs.

10.4. Injunctive Relief. Contractor acknowledges that breach of this Section 10, including disclosure of any Confidential Information, will cause irreparable injury to Agency that is inadequately compensable in damages. Accordingly, Agency may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available. Contractor acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of Agency and are reasonable in scope and content.

10.5. Publicity. Contractor agrees that it will not disclose the form, content or existence of this Price Agreement or any Deliverables in any advertising, press releases or other materials distributed to prospective customers, or otherwise attempt to obtain publicity from its association with Agency or the State of Oregon, whether or not such disclosure, publicity or association implies an endorsement by Agency or the State of Oregon of Contractor’s Services, without the prior written consent of Agency.

10.6. Protected Information. In the performance of the Price Agreement or WOC, Contractor may have possession or access to documents, records or items that contain “Personally Identifiable Information” (“PII”) as that term is used in ORS 319.883 to 319.945 or “Personal Information” as that term is used in the Oregon Consumer Information Protection Act ORS 646A.602(11), including Social Security numbers. PII and Personal Information are both types of Confidential Information that are highly sensitive and subject to additional protection.

10.6.1. Contractor shall not disclose any PII to any person except:

10.6.1.1. The registered owner of a subject vehicle or a subject vehicle’s lessee;

10.6.1.2. A financial institution for the purpose of collecting the RUC owed;

10.6.1.3. Agency employees who are involved in the administration of the RUC Program;

10.6.1.4. Another “certified service provider” (as defined in ORS 319.915(1)(a));

10.6.1.5. A contractor for a certified service provider, but only to the extent necessary for that contractor to provide services directly related to the certified service provider’s performance of a contract or price agreement with Agency;

10.6.1.6. An entity expressly approved in writing, by the registered owner of a subject vehicle or a subject vehicle’s lessee, to receive the PII information; or

10.6.1.7. A police officer in obedience to a valid court order issued at the request of a law enforcement agency in an authorized criminal investigation.

10.6.2. As required by ORS 319.915, Contractor must destroy records of the location and daily metered use of a subject vehicle within 30 calendar days after:

DAS Version 2.0 – OPO PSK/PA Form C007-G051223 Page 14 of 75

10.6.2.1. The completion of the payment processing for the most recent reporting period for the subject vehicle; or

10.6.2.2. The final completion, if later, of any dispute resolution concerning the subject vehicle’s participation in the RUC Program or the RUC payment compliance with respect to the subject vehicle for any particular reporting period, unless one of the exceptions in ORS 319.915(4)(b) applies.

10.6.3. Contractor may retain records of the location and daily metered use of subject vehicles if the registered owner or lessee of the subject vehicle consents to retention.

10.6.4. For traffic management and research purposes, Contractor may retain aggregate and use location and daily metered use information after removing PII.

10.6.5. Contractor may resell this anonymized and aggregated data to companies or government agencies or both. Contractor may also retain monthly summaries of metered use by subject vehicles in VIN summary reports.

10.6.6. Contractor shall not disclose PII used or developed for reporting metered use by a subject vehicle or for administrative services related to collection of per-mile road usage charges to persons except as allowed by ORS 319.915(3).

10.6.7. Contractor may only disclose PII used or developed for reporting metered use for to entities expressly approved to receive this information by the registered owner or lessee of the subject vehicle.

10.6.8. Contractor’s violation of any material provision of this subsection 10.5. shall constitute a material breach of this Price Agreement and unless such violation is cured within a reasonable amount of time following breach, shall entitle Agency to terminate this Price Agreement and any WOC issued under this Price Agreement and to pursue any damages sustained by Agency or the State Highway Fund as a result of the breach, as a result of the termination, or both.

10.6.9. Contractor’s violation of any material provision of this subsection 10.5. unless such violation is cured within a reasonable amount of time following breach, shall entitle Agency to recover all damages, losses or expenses Agency or the State Highway Fund sustains that arise out of the violation, including but not limited to:

10.6.10. All costs and expenses incurred by Agency or the State Highway Fund in identifying the registered owner of a subject vehicle or a subject vehicle’s lessee whose PII or Personal Information was disclosed or otherwise may have been compromised by any violation of this subsection 10.5., of ORS 319.915, or by the violation or breach of any protections, procedures, or protocols established in this Price Agreement to protect the confidentiality of the PII or Personal Information.

10.6.11. All costs and expenses incurred by Agency or the State Highway Fund in notifying the registered owner of a subject vehicle or a subject vehicle’s lessee whose PII or Personal Information was disclosed or otherwise may have been compromised by any violation of this subsection 10.5, of ORS 319.915, or by the violation or breach of any protections, procedures, DAS Version 2.0 – OPO PSK/PA Form C007-G051223 Page 15 of 75 or protocols established in this Price Agreement to protect the confidentiality of the PII or Personal Information.

10.6.12. All costs and expenses incurred by Agency or the State Highway Fund, including court costs, expert witness and consultant fees, and reasonable attorney fees, in pursuing any proceeding to halt or enjoin the unauthorized use or disclosure of any PII or Personal Information that was disclosed or otherwise may have been compromised by any violation of this subsection 10.5., of ORS 319.915, or by the violation or breach of any protections, procedures, or protocols established in this Price Agreement to protect the confidentiality of the PII and Personal Information.

10.6.13. Nothing in this subsection 10.5 shall excuse Contractor from any obligation to identify and notify any registered owner of a subject vehicle or a subject vehicle’s lessee whose PII or Personal Information was disclosed or otherwise may have been compromised by any violation of this subsection 10.5, of ORS 319.915, or by the violation or breach of any protections, procedures, or protocols established in this Price Agreement to protect the confidentiality of the PII or Personal Information.

10.6.14. Contractor immediately shall report to Agency’s Contract Administrator any breach of security, use, disclosure, theft, loss of, or other unauthorized access to any PII, any Personal Information, or any document, record, compilation of information or other item that contains PII or Personal Information to which Contractor receives access, possession, custody or control in the performance of this Price Agreement or any WOC issued under this Price Agreement.

10.6.15. Contractor shall ensure that its officers, employees and agents comply with this subsection 10.5. Contractor shall expressly include, in any subcontract Contractor establishes in connection with this Price Agreement, provisions that bind the subcontractor to comply with this subsection.

10.6.16. Contractor immediately shall report in writing to Agency’s Contract Administrator any receipt by or service on Contractor of any legal process, subpoena, court order or warrant that demands the release or disclosure of any PII or Personal Information and must provide Agency’s Contract Administrator a complete and correct copy of any such document. If requested by Agency, Contractor must reasonably cooperate with Agency in any legal action taken by Agency to prevent unauthorized disclosure of PII or Personal Information in the face of any legal process, subpoena, court order, or warrant that demands the release or disclosure of any PII or Personal Information.

10.7. Privacy and Security Requirements. Contractor and its employees, agents, and subcontractors shall comply with laws, regulations, and policies governing access to and use of Agency Data, including as required in the Privacy and Security Exhibit attached as Exhibit L, as they are stated elsewhere in this Price Agreement, and as such laws, regulations, and policies are updated or otherwise made available to Contractor.

10.8. Background Check. Contractor’s employees, agents and subcontractors that will perform Services under this Contract must submit to a background check. Such background check must occur prior to arrival on Agency premises or prior to access of Agency Confidential Information, DAS Version 2.0 – OPO PSK/PA Form C007-G051223 Page 16 of 75 whichever occurs first. Background checks will be performed at Contractor expense. Agency in its sole discretion has the right to reject any Contractor employee, agent, or subcontractor, or limit any such person’s access to the Subscription Services or premises based on the results of the background check.

11. CONTRACTOR’S PROPRIETARY INFORMATION;

11.1. Agency will use reasonable efforts to maintain the confidentiality of any proprietary information including, but not limited to, computer software, code, technical parameters, price lists, methods of pricing, customer lists, designs, software documentations, manuals, models and account tables, and any and all information maintained or developed received from Contractor and will not use such proprietary information except to fulfill its obligations under this Contract and applicable state and federal law. Contractor acknowledges and agrees that any obligation of Agency to maintain the confidentiality of Contractor’s proprietary information is conditioned by and subject to Agency’s obligations under the Oregon Public Records Laws, including ORS 192.311 to 192.478, which may require disclosure of proprietary information as a “public record” unless exempt under ORS 192.501 or ORS 192.502, and the provisions for the custody and maintenance of public records, ORS

192.005 – 192.170.

11.2. Contractor proprietary information is any information marked or designated in writing by Contractor as “confidential” prior to initial disclosure, or information disclosed orally that is confirmed in writing as “confidential” within 10 (ten) Calendar Days of disclosure.

11.3. Agency may disclose Contractor proprietary information to its third party Quality Assurance contractor so long as an executed Non-Disclosure Agreement is in effect between said Quality Assurance contractor and Contractor, and to State and federal oversight authorities to make required reports, to comply with requests for information, or to comply with an audit.

11.4. Agency may disclose and provide copies of Contractor proprietary information to the extent disclosure is required by the Oregon Public Records Law (including ORS 192.311 to 192.478). If Agency receives from a third party any request under the Oregon Public Records Law for the disclosure of Contractor proprietary information, Agency will notify Contractor within a reasonable period of time of the request. Contractor is exclusively responsible for defending Contractor’s position concerning the confidentiality of the requested information.

Notwithstanding the foregoing, while Agency is not required to actively assist Contractor in opposing disclosure of proprietary information, Agency will cooperate in good faith to the extent reasonably practicable with Contractor’s efforts to protect its proprietary information.

11.5. The confidentiality obligations imposed by this Section 11 do not apply to: (i) information that becomes part of the public domain through lawful means and without breach of any confidentiality obligation by the recipient; (ii) information subsequently and rightfully received from third parties who have the necessary rights to transfer the information without any obligation of confidentiality; (iii) information known to the recipient

DAS Version 2.0 – OPO PSK/PA Form C007-G051223 Page 17 of 75 prior to the effective date of this Contract without obligation of confidentiality; (iv) information independently developed by recipient and documented in writing…