00017493 Attachment A Sample Contract.docx

RFP/Bid Solicitation S-73000-00017493 CVIEW Replacement Project Att A

ATTACHMENT A - SAMPLE CONTRACT

STATE OF OREGON

INFORMATION TECHNOLOGY SERVICES CONTRACT FOR CLOUD-BASED SERVICES

CVIEW REPLACEMENT PROJECT

This Information Technology Services Contract (“Contract”) is entered into by and between the State of Oregon (“State”) acting by and through its Department of Transportation (“Agency” or “ODOT”), and [legal name of contractor as registered with Oregon Secretary of State], an __________ [entity type, e.g. corporation] (“Contractor”) and is effective as of the Effective Date (defined below).

RECITALS

Agency desires to engage a Contractor to provide [brief description of Solution and Services], including [professional services, etc. ]. To that end, Agency issued RFP [#].

Contractor is the successful proposer to the RFP and Agency desires Contractor to perform the Services.

Contractor desires to perform the Services for Agency.

AGREEMENT

The State and Contractor agree:

DEFINITIONS.

See Exhibit K Acronyms and Definitions.

TERM.

The Effective Date of this Contract is the date on which this Contract is fully executed and approved according to applicable laws, rules and regulations, whichever is later. This Contract terminates on [date] unless otherwise terminated or extended in accordance with its terms.

SCOPE OF SERVICES.

Performance and Delivery.

Responsibilities of Contractor. Contractor shall deliver the Services as set forth in the applicable Statement of Work and Service Level Agreement, in accordance with the standards and methodologies set forth in this Contract, and employing a methodology that conforms to the highest industry standards, for example standards established by the Project Management Institute (PMI) as described in the current Project Management Body of Knowledge (PMBOK Guide), supplemented by standards set forth in current International Organization for Standardization (“ISO”), such as 12207.

Contractor’s Duty to Cooperate. Contractor shall cooperate with the State and its designated third parties, including its quality assurance contractor, by providing access and information on the Solution and Services, such as architecture, design, operating environment, security, interfaces, and operating parameters, as required for all oversight activities and Agency-identified third party services.

Responsibilities of Agency. If a Statement of Work requires Agency to provide any personnel or resources, and Agency fails to provide the requisite quality or quantity of such resources, or fails to provide such resources in a timely manner for a period that does not exceed 20 Business Days, Contractor’s sole remedy is an extension of the applicable delivery dates corresponding to the delay. If Agency’s failure to provide such resources exceeds 20 Business Days, and Contractor can show to the reasonable satisfaction of Agency that Agency's failure has resulted in an unavoidable increase in the cost of the Services required for the Statement of Work, then Contractor will be entitled to recover from Agency the reasonable amount of such increased costs. Contractor's right to delay applicable delivery dates or recover for increased costs may be exercised only if Contractor provides Agency with reasonable notice of Agency's failure and Contractor uses commercially reasonable efforts to perform notwithstanding Agency's failure to perform.

Delivery and Review of Deliverables.

Contractor shall deliver Deliverables as set forth in the applicable Statement of Work by no later than the date or dates set for delivery in the Statement of Work or current Accepted [Project Plan]. Delivery dates, both critical and non-critical, are subject to Agency performing its responsibilities in a timely manner.

Contractor shall notify Agency in writing on submission of a Deliverable to Agency. By no later than (i) 10 Business Days after receipt of such notice, or (ii) the date set forth for Agency’s review in the current Accepted [Project Plan], Agency will determine whether the Deliverable meets its Acceptance Criteria. Acceptance Criteria includes all requirements for a Deliverable and associated Services described in the Statement of Work, and the Performance Warranties in Section 11.2. With respect to any Deliverable subject to acceptance testing, Agency will conduct testing as set forth in Section 3.4. If Agency determines that the Deliverable meets its Acceptance Criteria in all material respects, Agency will notify Contractor of Agency’s Acceptance in writing.

If Agency determines that a Deliverable does not meet its Acceptance Criteria in all material respects, Agency will reject the Deliverable via written notice, and describe in reasonable detail Agency’s basis for rejection. Upon receipt of this notice, Contractor shall, within a five Business Day period, modify or improve the Deliverable at its sole expense so that the Deliverable meets its Acceptance Criteria in all material respects, and resubmit the Deliverable. Agency will thereafter review the resubmitted Deliverable within five Business Days. Failure of the Deliverable to meet its Acceptance Criteria in all material respects 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 or instruct Contractor to modify or improve the Deliverables, or (ii) notify Contractor of such default and pursue its remedies for default under Section 15 of this Contract.

Testing, Implementation, and Stabilization.

Testing, implementation, and stabilization provisions will be negotiated with the successful Proposer and will reflect the agreed-upon schedule and methodology, but are anticipated to address the following:

Contractor shall configure and Implement the Solution in accordance with Exhibit A-1, Implementation Services Statement of Work, and changes following Final Acceptance in accordance with Exhibit A-2. Testing, implementation, and stabilization activities will be in accordance with this Section 3.4. Prior to Rollout of the Solution under Exhibit A-1 (including its components, enhancements, or integrations) in the production environment, Contractor must successfully complete unit testing and integration testing, and security testing with successful results that can be validated by Agency.

[Iterative Cycle Testing. Contractor shall perform unit tests for each build object, which will include regression and data validation. Following Contractor’s successful completion of a unit test, Contractor will report out to Agency on testing activities.] System Integration Testing (“SIT”). Contractor shall install and test the Solution in the test environment in accordance with the current Accepted [Project Schedule] by using it in off-line processing of test data in order to determine if the Solution is in material conformance with Requirements and design Deliverables, as those Deliverables are Accepted at the time of testing. If Level 1, Level 2, or Level 3 Defects are discovered during SIT, Contractor shall correct such Defects and retest at no additional charge to Agency prior to promoting the Solution to UAT. Contractor shall correct Level 4 Defects and retest at no additional charge to Agency within Agency-approved timeframes.

User Acceptance Testing (“UAT”). Agency will conduct user acceptance testing in accordance with the current Accepted [Project Schedule] by testing the Solution to determine if it is in material conformance with Requirements and the Technical Design Document, as that Deliverable is Accepted at the time of this testing[, and to determine if the Services will be operational on or before DATE]. Agency will notify Contractor in writing of each Defect discovered during UAT in accordance with the current Accepted Test Plan and specify its level. Contractor shall correct Defects identified during UAT at no additional charge to Agency, and resubmit the corrected Solution to Agency for retesting within 10 Business Days of a written notice of Defect, unless otherwise agreed upon by Agency. All such retesting will be done on an iterative basis and be completed by Agency no later than 10 Business Days after Contractor submission of the correction, unless otherwise agreed upon by Agency. Contractor shall correct all Level 1, Level 2, and Level 3 Defects in order to meet criteria for Acceptance of UAT results unless otherwise authorized by Agency. Contractor shall correct any remaining Level 4 Defects at no additional charge to Agency within Agency-approved timeframes. Contractor shall update Deliverables, such as the Requirements Traceability Matrix, following successful completion of UAT.

Rollout. After successful completion of UAT and upon Agency’s notice to proceed with the [Go-Live Implementation] Task, Contractor shall implement the Solution in the production environment and complete the “Go-Live” activities described in the current Accepted [Project Plan]. The Solution will be used to validate it is functioning in the production environment, validate the implementation methodology, validate user and other preparedness activities, and to determine if the Solution is in material conformance with Requirements set forth in Exhibit J, and the [Functional Specifications Document] as that Deliverable is Accepted at the time of activities under this Section 3.4.4.

1.1.1.1. If Defects are discovered during any phase of implementation, Agency will notify Contractor orally or in writing as soon as reasonably practical, and will provide written notification of a Defect and its level no later than five Business Days after discovery. Upon receipt of such written notice, Contractor shall correct any Level 1, Level 2, and Level 3 Defects at no additional charge to Agency within 10 Business Days from the date of the written notice, and resubmit the corrected Solution to Agency for retesting in accordance with this section. Agency will complete all such retesting no later than 10 Business Days after Contractor submission of the correction, unless otherwise agreed by Agency. Contractor shall correct Level 4 Defects at no additional charge to Agency within Agency-approved timeframes.

Stabilization Period. Upon completion of Rollout under Section 3.4, including Contractor’s correction of identified Level 1, Level 2, and Level 3 Defects, Agency will use the Services in the production environment for a period of 90 Calendar Days to determine if the Solution is stable and operating correctly (the “Stabilization Period”).

At the end of the Stabilization Period, if any Level 1, Level 2, or Level 3 Defects remain uncorrected, Agency may grant Contractor additional time to correct such Defects. If the Defects are not corrected during that period, unless Agency in its discretion allows additional time for correction, Agency may declare a material breach of this Contract by Contractor.

The parties will set priorities for any Level 4 Defects remaining at the end of the Stabilization Period, and Contractor shall correct such Defects during one or more a maintenance release(s) to be delivered on an agreed upon schedule.

Successful completion of the Stabilization Period for the final phase of Implementation will mark the end of [the Implementation Task].

Final Acceptance. “Final Acceptance” of the initial implementation of the Solution or a change will occur when the following events have occurred or conditions exist:

Agency has notified Contractor that the Solution and Services meet all Acceptance Criteria and all required testing has been successfully completed, including as specified in Section 3.4 and in the applicable Statement of Work;

The Solution and Services are stable, complete, and operating correctly as specified in Section 3.5 and in the applicable Statement of Work, and without Level 1, Level 2 , or Level 3 Defects;

Agency has notified Contractor that State of Oregon authorizations to Accept the Solution have been received;

Solution and Services documentation is complete and inventoried, and related Deliverables are Accepted by Agency;

Artifacts delivered by Contractor meet State of Oregon stage gate review criteria;

Contractor has reconciled all Requirements against the stabilized Solution to ensure Contractor has clearly and transparently met each Requirement; and Contractor has completed and Agency has Accepted Deliverables for User Training and Technical Training as specified in the applicable Statement of Work.

Warranty Period.

Post-Implementation Warranty Period. Contractor shall warrant the Solution implemented under Statement of Work A-1 for a period of 365 Calendar Days following Final Acceptance (“Post-Implementation Warranty Period”). During the Post-Implementation Warranty Period, Contractor shall, at no additional charge to Agency, correct Defects discovered during the Post-Implementation Warranty Period that prevent the Solution from meeting Acceptance Criteria and Contract warranties, even if Contractor’s correction occurs after the end of the Post-Implementation Warranty Period.

Solution Change Warranty Period. Contractor shall warrant Solution changes that modify or enhance the Solution after Final Acceptance, and that are not corrections of Defects identified prior to Final Acceptance, for a period of 90 Calendar Days following Final Acceptance of the implemented Solution change (“Solution Change Warranty Period”). Contractor shall, at no additional charge to Agency, furnish such materials and Services necessary to correct any Defects relating to the Solution change that prevent the Solution from meeting the Acceptance Criteria and Contract warranties, even if Contractor’s correction occurs after the end of the Solution Change Warranty Period.

Ongoing Services. Following [Rollout/Final Acceptance] of the Solution implemented under Exhibit A-1, Contractor shall provide Services to Agency and its end users the ongoing Services set forth in this Contract.

Service Level Agreements and Contract Standards. Contractor shall meet all applicable standards for the Services, including at least the Service Level Agreements in Exhibit B, during the Contract term.

Measurement and Monitoring. Contractor shall measure and monitor performance of the Services against all applicable standards and Service Level Agreements. Such monitoring must permit reporting at a level of detail sufficient to verify compliance with Contractual standards and Service Level Agreements, and is subject to audit by Agency. Contractor shall ensure Agency has information and access to monitoring tools and procedures, including for purposes of auditing and verification.

Failure to Perform. If Contractor fails to meet a performance standard, such as a Service Level Agreement or a Security and Hosting Requirement, Contractor shall (i) investigate, assemble and preserve pertinent information with respect to, and report on the causes of, the failure, inclusive of a root cause analysis; (ii) keep Agency apprised of the status of remedial efforts being undertaken with respect to such failure; (iii) minimize the impact of and correct the problem and begin meeting the performance standard; and (iv) take appropriate preventive measures so that the failure does not recur.

1.1.1.2. As provided in Section 15.1, Contractor agrees to pay [the damages, service credits, or liquidated damages specified in Exhibit B] if Contractor fails to provide the Services or Solution as and when required by this Contract or fails to meet the performance standards and Service Level Agreements specified in Exhibit B. This section does not limit Agency’s rights with respect to the events upon which Agency may rely as a basis for Agency’s termination of this Contract for cause.

Upgrades. Contractor shall make Upgrades available to Agency when such Upgrades are made available by Contractor (or its subcontractor) to its customers. The parties will confer on any change control or change order process necessary to effect an Upgrade. Contractor will provide release notes describing each implemented Upgrade, when furnished, and documentation for the appropriate user manuals.

Enhancements. Contractor shall deliver Enhancements as agreed upon under the applicable Statement of Work or amendment to this Contract completed in accordance with Section 7, and this Contract will apply to such Enhancement.

Technology Refresh. Contractor intends to provide Agency with SaaS and Services meeting or exceeding industry standards for the duration of the Contract. As such, and subject to the terms and conditions of this Contract, Contractor shall use commercially reasonable efforts to maintain and improve the SaaS and Services consistent with industry standards. Contractor may implement new technologies to better serve Agency and its end users, provided that (i) such actions by Contractor do not impair Agency's rights hereunder or result in any interference with Agency operations at the time of any upgrade; and (ii) such actions by Contractor are undertaken in accordance with and are governed by the terms of this Contract. In the event that Contractor’s maintenance activities or deployment of new technologies would involve changes or interference with Agency’s operations or Agency equipment or facilities used to access the Solution, then Contractor shall request Agency's prior written approval, which will not be unreasonably withheld, conditioned, or delayed. This section does not apply to any deployment of artificial intelligence impacting Agency Data.

Business Continuity Management and Disaster Recovery. Contractor shall deliver and maintain [Business Continuity Management and Disaster Recovery Plan and Procedures] for the Services that are acceptable to Agency. In the event of a disaster, Contractor shall comply with the provisions of and deliver Services according to [the Business Continuity Management and Disaster Recovery Plan and Procedures].

Response to Public Records Requests for Agency Data. Agency, as an executive department agency of the State, must respond to requests for Agency Data and other public records under Oregon’s Public Records laws (ORS 192.311 to 192.478), within set timeframes. Upon the State’s request, Contractor shall immediately provide access to all responsive documents and records to the State so the State may respond to public records requests for Agency Data in accordance with applicable law.

Transition Services. Contractor shall provide transition services to support a responsible and secure transition of Services and Agency Data to another provider or to Agency (“Transition Services”).

Upon receipt of a notice prior to expiration that Agency will engage Contractor’s Transition Services, or receipt of notice of termination and notwithstanding the reason for termination (whether for cause or without cause and whether by Contractor or Agency, and whether for all or some Services), Contractor shall continue to provide Services ,and will provide Transition Services as described in the Transition Plan (defined below) for the period set in the notice and in the subsequent Transition Plan (the “Transition Period”), on the following conditions:

1.1.1.3. Agency is up to date with its undisputed payment obligations at the commencement of the Transition Period, and

1.1.1.4. Agency pays all undisputed invoices during the Transition Period in accordance with its obligations referenced in Section 6.

If during the Transition Period Contractor believes Agency is not in compliance with the foregoing conditions, Contractor shall give Agency written notice of such noncompliance and Agency will have 15 Business Days, or such longer period to which the parties may agree, to correct the noncompliance before Contractor may end the Transition Period and complete wind-down activities as described below.

Transition Plan. Contractor shall deliver a detailed Transition Plan within 14 Calendar Days of Agency’s written notice and request, or otherwise within a timeframe agreed upon by the parties, for Agency review. The Transition Plan may serve as an update to or a confirmation of a Transition Services Task in a Statement of Work. The Transition Plan will not be effective until it is approved by DOJ. This plan will determine the nature and extent of Contractor’s Transition Services obligations and detail the transfer of Services, Agency Data, or both. The Transition Period will commence on the date set in the DOJ-approved Transition Plan; provided, however, if agree to a Transition Plan on or before the Contract termination date, then the parties will abide by a draft of the plan promulgated by Agency until the Transition Plan is approved by DOJ. The Transition Plan must address at least:

1.1.1.5. The Tasks and Deliverables to be completed by Contractor during the Transition Period,

1.1.1.6. A schedule pursuant to which such Tasks and Deliverables will be completed, and

1.1.1.7. A schedule identifying the cost (if any) related to each Deliverable. The Transition Plan may reflect Transition Services that will not exceed the current Maximum Not-To-Exceed Compensation. If the parties agree Transition Services require new or additional Services that cause an increase in the Maximum Not-To-Exceed Compensation, the Transition Plan will be in the form of a Contract amendment.

1.1.1.8. The parties will cooperate in good faith with each other in connection with their obligations under this Section 3.9 and will perform their obligations under the Transition Plan. If the Transition Period extends beyond the Contract term, the provisions of this Contract remain in effect for the duration of the Transition Period.

Without limiting the generality of the aforementioned obligations, Contractor shall:

1.1.1.9. Complete the transition of Agency Data and Services from Contractor and its subcontractors to Agency and to any provider(s) that Agency designates, without causing any unnecessary interruption of or adverse impact on the Services.

1.1.1.10. Cooperate with Agency and any Agency-designated provider by promptly taking all steps required to assist Agency in completing the Transition Plan.

1.1.1.11. Provide Agency and any Agency-designated provider with all information regarding the Services, Agency Data, and Deliverables that these parties will need to complete the Transition Period. This includes data conversions, data access or transfers, and interface specifications.

1.1.1.12. Promptly and orderly conclude all Services as Agency may direct. This includes the return of property under Section 16.6, documentation of any work in progress, and other measures.

Wind-Down. Upon the later of (i) the termination of this Contract or (ii) termination of the Transition Period, Contractor will cease providing the Solution and will cease to perform all other Services, and Agency will pay Contractor all amounts payable to Contractor for Deliverables, Services, and pre-approved expenses incurred through the end of the Contract or Transition Period; provided, however, when such termination is due to the breach or bankruptcy of Contractor, Agency will not be required to pay any amounts claimed by Contractor to be due until Agency determines what, if any, setoffs are required and the remedies owed to Agency are either agreed upon by Contractor through a settlement or ordered by a court of competent authority.

CONTRACTOR’S PERSONNEL.

Key Persons. Contractor acknowledges that the State selected Contractor, and is entering into this Contract, because of the special qualifications of Contractor's Key Persons identified in Exhibit D. Contractor's Key Persons shall not delegate performance of the powers and responsibilities they are required to provide under this Contract without first obtaining the written consent of Agency. Further, Contractor shall not re-assign or transfer a Key Persons to other duties or positions such that the Key Person is no longer available to provide 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 Key Persons without Agency’s consent in the event any Key Persons are no longer available due to circumstances beyond Contractor’s reasonable control, such as death, illness, or termination of employment with Contractor.

Agency, in its sole discretion, may request reassignment of any Contractor personnel.

In the event Contractor must replace Key Persons, Agency may interview, review the qualifications of, and approve or reject the proposed replacement(s) for the Key Persons. Any such replacement must have substantially equivalent or better qualifications than the Key Person being replaced. Any replacement personnel approved by Agency will thereafter be deemed a Key Person for purposes of this Contract and Exhibit D deemed amended to include such Key Person. Contractor shall not charge Agency, and Agency will not pay, for a 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, and will last for a minimum of 14 Calendar Days but not more than 28 Calendar Days, and will be reflected as an adjustment to a fee for a Deliverable associated with the replacement Key Person’s Services.

Project Manager. Contractor shall designate a Project Manager as a Key Person for the initial Implementation of the Solution through at least Final Acceptance. The Project Manager shall be familiar with Agency’s business operations and objectives. The Project Manager will participate with Agency in periodic review sessions and will provide at Agency’s request detailed progress reports that identify completed tasks and the status of Tasks and Deliverables required to deliver Solution that meet Final Acceptance criteria.

Service Manager. Contractor shall designate a Service Manager as a Key Person for the duration of the Contract. The Service Manager shall be familiar with Agency’s business operations and objectives. The Service Manager will participate with Agency in regular meetings to be held, at least quarterly unless requested more frequently by Agency, at Agency’s offices in Salem, Oregon. The Service Manager must:

Provide measurement and monitoring reports to verify compliance with the Service Level Agreements;

Review the Services and Contractor’s performance throughout the Contract and implement necessary improvements;

Discuss Upgrades and Enhancements to the Services or any new technologies that may be available for Agency;

Adress any other Agency-raised issues or concerns; and Provide at Agency’s request such other reports as Agency may request.

Contractor’s Employees and Subcontractors. Contractor shall not use subcontractors to perform the Services without Agency’s prior written consent. Contractor represents that any employees assigned to perform the Services, and any subcontractors performing the Services, will perform the Services in accordance with the warranties set forth in Section 11 of this Contract.

Anti-Discrimination. Contractor certifies that Contractor has a written policy and practice that meets the requirements described in ORS 279A.112 for preventing sexual harassment, sexual assault, and discrimination against employees who are members of a protected class. Contractor shall maintain such policy and practice in force during the entire Contract term.

Pay Equity. As required by ORS 279B.235, Contractor shall comply with ORS 652.220 and not unlawfully discriminate against any of its employees in the payment of wages or other compensation for work of comparable character on the basis of an employee’s membership in a protected class. “Protected class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, gender identity, national origin, marital status, veteran status, disability, or age. Contractor’s compliance with this section is a material term of this Contract, and Contractor’s failure to comply constitutes a breach entitling the State to terminate this Contract for cause.

Discussion of Compensation. As required by ORS 279B.235, Contractor may not prohibit any of its employees from discussing the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person. Contractor shall not retaliate against an employee who discusses the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person.

2. INDEPENDENT CONTRACTOR; TAXES AND WITHHOLDING.

Independent Contractor Certification. Contractor certifies that Contractor: (i) is an independent contractor; (ii) if required, is registered under ORS chapter 701 or other applicable Oregon statutes to provide labor or services; (iii) has filed and paid federal and state income taxes in the name of its business or a business Schedule C; (iv) furnishes all tools or equipment necessary for the Services; (v) has authority to hire or fire employees; and (vi) assumes financial responsibility for defective workmanship or for service not provided as evidenced by the ownership of performance bonds, warranties, errors and omission insurance or liability insurance relating to the labor or services to be provided. Contractor declares and certifies by execution of this Contract that it is not an “officer,” “employee,” or “agent” of Agency or any other agency of the State, as those terms are used in ORS 30.265.

No Partnership. This Contract is not intended, and will not be construed, to create a partnership or joint venture between State and Contractor. Nothing in this Contract will be construed to make State and Contractor partners or joint venture participants.

Declaration and Certification as to Conflict of Interest. Contractor declares and certifies that (i) its performance of the Services creates no potential or actual conflict of interest as defined by ORS Chapter 244, for Contractor or any Contractor personnel or Key Persons who will perform Services under this Contract; (ii) in the event that Contractor or its personnel are either employed by or performing services for the federal government, that no rules or regulations of the agency for which Contractor or its personnel work or are employed prohibit Contractor or its personnel from providing the Services under this Contract; and ; and (iii) this Contract and the delivery of Services creates no other violation of ORS Chapter 244 for Contractor, its employees, agents, or contractors.

Responsible for Taxes. Contractor is responsible for all federal and state taxes applicable to compensation and other payments paid to Contractor under this Contract. Unless Contractor is subject to backup withholding, Agency will not withhold from such compensation and 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 Contract, except as a self-employed individual.

Foreign Contractor. If Contractor is not domiciled in or registered to do business in the State of Oregon, Contractor shall promptly provide to the Oregon Department of Revenue and the Secretary of State, Corporation Division, all information required by those agencies relative to this Contract. Contractor shall demonstrate its legal capacity to perform the Services under this Contract in the State of Oregon before entering into this Contract.

Disclosure of Social Security Number. Contractor shall provide Contractor’s Social Security number unless Contractor provides a federal tax identification number. This number is requested pursuant to ORS 305.385, OAR 125-246-0330(2)(d), and OAR 150-305.100. Social Security numbers provided pursuant to this authority will be used for the administration of state, federal, and local tax laws.

3. COMPENSATION.

Maximum Compensation. Notwithstanding any other provision of this Contract to the contrary, the maximum, not-to-exceed compensation that Agency will pay to Contractor is ($_____) (the “Maximum Not-To-Exceed Compensation”), which includes payment for any allowable expenses for which Contractor may request reimbursement under this Contract.

Payments. Payments are subject to all provisions of this Section 6.

Payment of Fixed Prices. Agency will pay to Contractor the fixed prices listed in Exhibit H for Deliverables and Subscription Services.

Enhancements and Additional Services. Agency will pay to Contractor the agreed upon fixed prices [or at the agreed upon rate(s)] for Services authorized in accordance with Section 7, the applicable Statement of Work, and Exhibit H.

Expenses. Agency will not pay or reimburse any expenses incurred by Contractor related to the Contract except as authorized in the applicable Statement Work and Exhibit H. Any such authorized travel expenses must comply with the Oregon Travel Policy ( https://www.oregon.gov/das/financial/acctng/pages/travel.aspx), including as it is updated.

Retention. Agency may hold back an amount of not more than [15%] of any amount that is payable by Agency to Contractor for the Services, other than amounts attributable to the purchase of equipment, hardware, or license of any Third Party Intellectual Property or the Subscription Services. Agency will pay the then-accrued retention to Contractor within 30 Calendar Days following Final Acceptance of the related Implementation or Enhancement.

Invoices. Agency will pay Contractor not more than once each month upon Contractor’s submission of a detailed, accurate, invoice that sets forth the amounts due for Services performed, and Deliverables Accepted, by Agency. Each invoice must comply with the requirements of this Section 6, identify the Service fees, Services amounts, and Deliverables completed and Accepted for which Contractor seeks compensation, and itemize and explain all authorized expenses for which reimbursement is claimed. Contractor shall submit invoices to Agency’s Authorized Representative (or delegate). Agency will have the right to review each invoice for compliance with the requirements of this section and any other relevant provisions of this Contract, and has the right to dispute noncompliant invoices. All payments to Contractor are subject to ORS 293.462.

Limit on Payments. Contractor shall not submit invoices for, and Agency will not pay, any amount in excess of the Maximum Not-To-Exceed Compensation. If this maximum amount is increased by amendment of this Contract, pursuant to Section 7, the amendment must be fully effective before Contractor performs additional Services or other Services or delivers goods subject to the amendment. No payment will be made for any Services performed or goods delivered before the Effective Date or after termination of this Contract.

Funds Available and Authorized. Contractor will not be compensated for Services performed under this Contract by any other agency or department of the State of Oregon. Agency believes it has sufficient funds currently available and authorized for expenditure to finance the costs of this Contract within Agency’s biennial appropriation or limitation. Contractor understands and agrees that Agency’s payments under this Contract are contingent on Agency receiving appropriations, limitations, or other expenditure authority sufficient to allow Agency, in the exercise of its reasonable administrative discretion, to continue to make payments under this Contract.

4. Amendments. This Contract may be amended, modified, or supplemented only by a written amendment signed by Agency and Contractor . Any amendment that provides for additional goods or Services may only provide for goods or Services directly related to the scope described in the solicitation document, and no amendment will be effective until all required signatures and approvals are obtained. Either Agency or Contractor may request a change to this Contract, including to any of its exhibits, by submitting a written proposal describing the desired change to the other party. Payments. Subject to the foregoing provisions of this Section 7 and performance of the Services and Acceptance of related Deliverables, Agency will pay for Services performed pursuant to an amendment according to the acceptance and payment procedures set forth in this Contract.

5. Intellectual property.

Agency Intellectual Property. Agency retains ownership of all Agency Intellectual Property, provided to, collected by, or created by Contractor pursuant to this Contract, including Agency Intellectual Property in derivative works and compilations. Agency hereby grants Contractor a limited, revocable license to use, collect, process, generate, display, copy, distribute, transmit, and prepare derivative works of Agency Intellectual Property, only to fulfill the purposes of this Contract. Agency’s license to Contractor is limited by the term of the Contract and is subject to the confidentiality and security obligations of this Contract.

Agency Data is Agency Intellectual Property, and Agency owns all Work Product that is Agency Data. Contractor hereby irrevocably assigns to Agency any and all of its rights, title, and interest in all Work Product that is Agency Data, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Upon Agency’s reasonable request, Contractor shall execute such further documents and instruments to fully vest such rights in Agency.

Contractor Intellectual Property. Contractor retains ownership of all Contractor Intellectual Property that Contractor delivers to Agency pursuant to this Contract, including Contractor Intellectual Property in derivative works of and compilations.

Contractor hereby grants Agency a license to the Subscription Services set forth in Exhibit F. This includes any Work Product owned by Contractor that is included in or necessary for the use of the Subscription Services.

To the extent a Deliverable is Contractor Intellectual Property, a derivative work developed by Contractor based on Contractor Intellectual Property, or a compilation that includes Contractor Intellectual Property,and provided Agency has paid any applicable fee, Contractor hereby grants Agency a fully paid, irrevocable, non-exclusive, perpetual, royalty-free license to use, make, reproduce, prepare derivative works based upon, distribute copies of, perform and display Contractor Intellectual Property in each Deliverable, and to authorize others to do the same on Agency’s behalf.

To the extent Work Product that is Agency Intellectual Property includes Contractor Intellectual Property (such as a derivative work based on Contractor Intellectual Property, or a compilation that includes Contractor Intellectual Property), and provided Agency has paid any applicable fee, Contractor hereby grants Agency a fully paid, irrevocable, non-exclusive, perpetual, royalty-free license to use, make, reproduce, prepare derivative works based upon, distribute copies of, perform and display such Contractor Intellectual Property, and to authorize others to do the same on Agency’s behalf.

Third Party Intellectual Property. Unless otherwise specified in a Statement of Work that Agency will acquire and obtain a license to Third Party Intellectual Property, Contractor shall secure on Agency’s behalf, in the name of Agency and subject to Agency’s approval, a license to Third Party Intellectual Property necessary for Agency to access and receive the benefit of the Services. Licenses for Third Party Intellectual Property are set forth in Exhibit G, and Exhibit G will be deemed to include any additional licenses for Third Party Intellectual Property approved by Agency. Contractor shall secure irrevocable, non-exclusive, perpetual, royalty-free rights in Third Party Intellectual Property embodied in Federally Funded Work Product.

Ownership of Work Product. (RESERVED) Open Source Licensing. Any open source elements of the Services or a Deliverable for which Agency may be subject to an open source license must be approved in advance and in writing by Agency. If Contractor desires to include any open source elements that may subject Agency to an open source license, Contractor shall:

Notify Agency in writing that Contractor intends to include elements subjecting the State to open source licensing, Identify the specific elements that are subject to open source licensing, and Provide each applicable license to Agency.

No Rights. Except as expressly set forth in this Contract, nothing in this Contract 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 Contract, nothing in this Contract 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.

No Rights in 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 Contract.

Competing Services. Subject to the provisions of this Section 8, and Contractor’s obligations with respect to Confidential Information, including as defined in Section 9, nothing in this Contract precludes or limits in any way the right of Contractor to: (i) provide services similar to those contemplated in this Contract, 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. 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 Contract related to and arising from its own Intellectual Property free of any use restriction or payment obligation to the other.

6. CONTRACTOR’S DUTIES OF CONFIDENTIALITY AND NON-DISCLOSURE.

Confidential Information. Contractor acknowledges that it and its employees, agents, or subcontractors may, in the course of providing and performing the Services under this Contract, be exposed to or acquire information that is confidential to the State, Agency, or Agency’s clients. Any and all information of any form obtained by Contractor or its employees, subcontractors, or agents in the performance of this Contract, including Agency Data, is deemed to be confidential information of Agency (“Confidential Information”). Contractor shall treat any reports or other documents or items (including data aggregations) that result from the use of the Confidential Information in the same manner as the Confidential Information. Confidential Information does not to include information that (i) is or becomes (other than by disclosure by Contractor) publicly known; (ii) is furnished by Agency to others without restrictions similar to those imposed by this Contract; (iii) is rightfully in Contractor’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Contract; (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 employees, agents or subcontractors of Contractor who can be shown to have had no access to the Confidential Information.

Non-Disclosure. Contractor, its employees, agents, and subcontractors shall hold Confidential Information in confidence, using the highest standard of care applicable, and shall not copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose 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 each of its employees and agents 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 Contract, 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 Contract, except as directed by Agency, disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this Contract, and that upon termination of this Contract or at Agency’s request, Contractor shall deliver to Agency all documents, papers, and other matter in Contractor's possession that embody Confidential Information and sanitize its systems in accordance with Section 2.9 of Exhibit K. Notwithstanding the foregoing and unless otherwise specified in this Contract, Contractor may keep one copy of the minimum Confidential Information necessary for quality assurance, audits and evidence of performance of the Services.

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 Exhibit K, Security and Hosting Requirements, as they are stated elsewhere in this Contract, and as such laws, regulations, and policies are updated or otherwise made available to Contractor.

Non-Disclosure Agreement. Contractor shall upon Agency’s request provide a written non-disclosure agreement and obtain such from Contractor’s employees, agents, and subcontractors performing Services under this Contract.

Background Checks. Contractor’s employees, agents and subcontractors that will perform Services under this Contract must submit to and pass a criminal background check that is acceptable to the State and in accordance with Exhibit K. Such screening must occur prior to the individual’s physical or logical access to Agency Data or State facilities. Background checks will be performed at Contractor expense and findings will be provided to Agency on written request. Agency in its sole discretion has the right to reject any Contractor employee, agent, or subcontractor, or limit any such person’s access to Confidential Information or State facilities based on the results of the background check.

Confidentiality Policies. Contractor shall, on 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 format and include procedures for how Contractor will respond when a violation or possible violation occurs.

Injunctive Relief. Contractor acknowledges that breach of this Section 9, 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.

Publicity. Contractor agrees that it will not disclose the form, content or existence of this Contract or any Deliverable 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.

CONTRACTOR’S PROPRIETARY INFORMATION; OREGON PUBLIC RECORDS LAWS. The State will use reasonable efforts to maintain the confidentiality of any proprietary information 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 the State to maintain the confidentiality of Contractor’s proprietary information is conditioned by and subject to its 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 192.345 or ORS 192.355, and the provisions for the custody and maintenance of public records, ORS 192.005 to 192.170.

Designation. 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 Calendar Days of disclosure.

QA and Oversight. The State may disclose Contractor proprietary information to its third party quality assurance contractor, and to…