1_S-DASOBO-00008678_RFP_Attachment_A_SAMPLE_CONTRACT DOJ FINAL.docx

ATTACHMENT A – SAMPLE CONTRACT

STATE OF OREGON

INFORMATION TECHNOLOGY SERVICES CONTRACT

DISTILLED SPIRITS SUPPLY CHAIN SOLUTION

This Information Technology Services Contract (Contract) is entered into by and between the State of Oregon (State) acting by and through its Department of Administrative Services, Procurement Services (DAS PS) on behalf of the Oregon Liquor and Cannabis Commission (”OLCC” or “Agency”), and [legal name of contractor as registered with the Oregon Secretary of State], an __________ 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] (the “Services” as defined below) to enable Agency to achieve specific business and Agency mission objectives defined in this Contract. To that end, DAS PS issued RFP # S-DASOBO-00008678.

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

In consideration of the foregoing recitals and the mutual terms and conditions set forth below, State and Contractor agree as follows:

DEFINITIONS.

“Acceptance” or “Accepted” means written confirmation by Agency that Contractor has completed a Deliverable according to the Acceptance Criteria and the Deliverable is accepted for purposes of interim payment. These terms are distinct from “Final Acceptance.”

“Acceptance Criteria” means the criteria for accepting Deliverables under this Contract, including but not limited to Requirements, specifications for a specific Deliverable set forth in the applicable Statement of Work, and the Performance Warranties set forth in Section 11.2.

“Acceptance Tests" means those tests which are intended to determine compliance of Deliverables and the Services with the Acceptance Criteria of this Contract.

“Agency Data” means information created and information stored by Agency through the Services, and information created and collected by Contractor regarding Agency and its customers (such as Licensed Agents and members of the public) during the course of providing the Services, including Personal Information.

“Agency Intellectual Property” means any intellectual property that is owned by Agency, including Agency Data. Agency Intellectual Property includes any derivative works and compilations of any Agency Intellectual Property.

“Agency Project Manager” means the person representing Agency who serves as Contractor’s primary point of contact for the Services.

“Authorized Representative” means a person representing a party to this Contract who is authorized to make commitments and decisions on behalf of the party regarding the performance of this Contract. Contractor’s Authorized Representative is the person so identified in Exhibit E. Agency’s Authorized Representative is the person so identified in Exhibit F.

“Business Days” means Monday through Friday, 8:00 a.m. to 5:00 p.m., Pacific Time, excluding State of Oregon holidays and business closure days.

“Business Support Hours” means Monday through Friday, 6:00 a.m. to 6:00 p.m., Pacific Time, on Business Days.

“Calendar Days” means contiguous days.

“Change Order” means a form of Contract amendment pursuant to Section 7 that makes changes to a Statement of Work or Exhibit B within the scope of this Contract.

“Confidential Information” is defined in Section 9.1.

“Contract” means all terms and conditions in this document and all its attachments and exhibits, including as amended.

“Contractor Intellectual Property” means any intellectual property that is owned by Contractor and contained in or necessary for the use of the Deliverables or Services. Contractor Intellectual Property includes Software owned by Contractor, including but not limited to the [application] as described in Exhibit G and in Documentation, and derivative works and compilations of any Contractor Intellectual Property.

“DAS PS” means the State of Oregon acting through its Department of Administrative Services Procurement Services.

“Data Error” – means errors in data or results caused by failures in data conversion or failures caused by the Services. Data entry errors are not Data Errors.

“Defect” means a reproducible failure of the Solution to operate in accordance with Requirements in Exhibit J and specifications in the applicable Statement of Work (including as updated by Accepted Deliverables) or a Service Level Agreement, despite the proper use of the System. Data Errors and Documentation errors are Defects. Prior to Final Acceptance of the Solution, a missed, missing, or misinterpreted Requirement is a Defect.

Defect Levels and SLAs will be negotiated with the successful Proposer(s) and be conformed to the applicable Solution, but are anticipated to fall into the following categories:

Level 1 – Catastrophic. The Solution or a main subsystem is unavailable, preventing the Solution or a core function from operating or causing core functions or major functionality to operate with grossly incorrect results, such as material data processing errors. There is no workaround.

Level 2 – Major. Use of the Solution or a subsystem is interrupted or a Solution failure otherwise causes major functions to not operate or to operate with significantly incorrect results, such as data processing errors. There is no State-acceptable workaround.

Level 3 – Minor. Does not qualify as a Level 1 Defect or Level 2 Defect but which nonetheless prevents functionality from operating or causes functions to operate with incorrect results. There is a clear business need to have the Solution repaired, but State-acceptable workarounds exist for business operations.

Level 4 – Incidental. Does not affect functionality of the Solution. Low priority with no direct impact on end users or Agency staff. Cosmetic or nonessential in nature.

“Deliverables” means all items, including Work Product, that Contractor is required to provide to Agency under this Contract.

“Delivery Schedule” means the attributes of the applicable Statement of Work setting forth the completion date of each Milestone, the delivery date for each Deliverable, and other dates for delivery of Services.

“Documentation” means all documents, including documents that are Deliverables described in a Statement of Work and which may include operator’s and user’s manuals, training materials, guides, commentary, listings, requirements traceability matrices and other materials for use in conjunction with and for the operation of the Services. Documentation includes documents in hard copy or electronic form.

“DOJ” means the State of Oregon acting through its Department of Justice.

“Effective Date” means the date specified in Section 2 or the date on which this Contract is fully executed and approved according to applicable laws, rules and regulations, whichever is later.

“EIS” means the State Chief Information Officer acting as DAS’ Enterprise Information Services.

“Enhancements” means improvements to or additional components of the Solution that add functionality.

“Final Acceptance” criteria are in Section 3.6.

“Go-Live” means the date identified in a Statement of Work, Change Order, or applicable Accepted Deliverable, on which the Solution will be available for Agency and its users in a Production Environment for the processing of transactions in accordance with Requirements and Service Level Agreements. A Go-Live date may be associated with the initial Implementation of the Services, a specific phase or Enhancement under a Statement of Work, a Change Order, or an Enhancement.

“Help Desk Services” means all necessary activities to assist the users to effectively and efficiently use the Solution. Support will be negotiated with the successful Proposer, but is anticipated to include the support described in Exhibit B, Service Level Agreements.

“Implementation” or “Implement” means the process of Contractor preparing and deploying the Solution or a component of the Solution, such as the Subscription Services, to the stated environment (i.e., Demonstration and Production). Implementation includes all Services required to provide a complete and functioning Solution, and to prepare Agency to use it effectively.

“Intellectual Property Rights” is defined in Section 12.2.

“Key Persons” means Contractor’s Authorized Representative, the Project Manager, and all other Contractor personnel designated as Key Persons in Exhibit E.

“Maximum Not-To-Exceed Compensation” is defined in Section 6.1.

“Personal Information” is defined in Exhibit K.

“PMBOK” means the Project Management Body of Knowledge.

“Production Environment” means the setting where the System is operation for its intended use by Agency and its end users.

“Project” means the effort associated with Implementation of the Solution, a well-defined sequence of events with an identifiable beginning and ending which purpose is to achieve an identifiable goal, i.e., the configuration, integration, development, implementation, testing, training, operations and maintenance of the Subscription Services under the Contract.

“Project Manager” means Contractor’s representative who manages the processes and coordinates the Services with Agency’s Authorized Representative to ensure delivery of the Deliverables and completion of Milestones. Contractor’s Project Manager is the person so identified in Exhibit E.

“Retention Amount” is defined in Section 6.3.

“Requirements” are the functions and elements required for the Solution. Requirements are in Exhibit J and will be managed via Deliverables identified in a Statement of Work.

“Roll-out” means the phased Implementation of a Solution in the Production Environment with Agency Data that is accessible to a subset of end users selected by Agency.

“Safety Issue” means the personal safety or financial accounts of an individual, or the personal safety or financial accounts of one or more persons in the individual’s household or with whom the individual has a personal relationship, are at higher risk of harm because Agency Data is shared, exposed, or accessible through the System through unauthorized means.

“Services” means all effort to be expended by Contractor under the Contract, such as initial Implementation of the Solution, maintenance and support of the System, compliance with Service Level Agreements, development and Implementation of a Solution change, completion of Tasks, and development and delivery of Deliverables and Work Product.

“Service Level Agreement” or “SLA” means an agreement that defines specific elements of the Subscription Services and the Services, periods of time for completing the defined Services, measurable conditions for determining successful completion or performance of the Subscription Services, other Services, or both, and consequences for not meeting the SLA. The SLA may contain conditions for starting, stopping, and pausing the measurement of the relevant time period. SLAs are in Exhibit B.

“Software” means any computer programs, routines, or subroutines, including operating software, programming aids, application programs, and software products.

“Software as a Service” (“SaaS”) or “Subscription Services” means the integrated package of Software, applications, platform, technical framework, security infrastructure, and related services delivered by Contractor under this Contract as a subscription.

“Solution” means the sum total of Services, developments, Work Product, Deliverables, Contractor Intellectual Property, Third Party Intellectual Property, Software, and Documentation that Contractor may configure, develop, implement, and support under this Contract.

“Support Services” means all necessary activities to support the effective and efficient use the Solution by Agency and its users. Support Services will be negotiated with the successful Proposer, and are anticipated to include the Services described for in the RFP.

“State” means the State of Oregon.

“Statement of Work” or “SOW” means the exhibit to this Contract, including its subparts, that describes the Services to be provided by Contractor, including the Tasks, Deliverables, the attributes (including requirements and specifications) of each Deliverable, identification of the Deliverables and Services that are associated with each Task, and a completion date for each Deliverable, and any other items as agreed by the parties and attached hereto as a Statement of Work, including as amended. As used in this Contract, except where otherwise expressly identified as being applicable only to a specific SOW, a reference to “Exhibit A,” “SOW” or “Statement of Work” means the applicable part of Exhibit A (e.g., Exhibit A-1, Exhibit A-2, etc.) individually.

“Task” means a segment of the Services to be provided by Contractor under this Contract.

“Third Party Intellectual Property” means any intellectual property owned by parties other than the State or Contractor. Third Party Intellectual Property includes Software owned by third parties, and derivative works and compilations of any Third Party Intellectual Property.

“Upgrade” means upgrades, improvements or changes to the Software or other aspects of the Services that are designed to improve operating performance and to reflect changes in applicable laws without changing the basic functions of the Software and that are generally made available by Contractor in its sole discretion at no additional charge to Contractor’s other licensees of the Software. A new Upgrade typically will be indicated by the addition of one to the second digit of the upgrade number (e.g. v.X.2 would be the next Upgrade after v.X.1).

“Work Product” means everything that is specifically made, conceived, discovered, or reduced to practice by Contractor or Contractor’s subcontractors or agents (either alone or with others) pursuant to the Contract, including every invention, modification, discovery, design, development, customization, configuration, improvement, process, software program, 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). Notwithstanding anything in the immediately preceding sentence to the contrary, Work Product is not Agency Intellectual Property, Contractor Intellectual Property, or Third Party Intellectual Property.

TERM.

The Effective Date of this Contract is _________, or 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 to be determined at Contract execution, anticipated to be at least ## from the Effective Date], unless otherwise terminated or extended in accordance with its terms.

SCOPE OF SERVICES.

Performance and Delivery.

Responsibilities of Contractor. Contractor shall perform the Services in accordance with the standards and methodologies set forth in this Contract, including the applicable Statement of Work and Service Level Agreement(s), and:

1.1.1.1. Employing a methodology that conforms to the standards established by the Project Management Institute (PMI) as described in the current Project Management Body of Knowledge (PMBOK), supplemented by standards set forth in ISO 12207; and

1.1.1.2. In compliance with information technology standards established by Enterprise Information Services (EIS), found at: https://www.oregon.gov/das/OSCIO/Documents/2019StatewideInformationAndCyberSecurityStandardsV1.0.pdf and which may be updated from time to time.

Contractor shall cooperate with the State and its designated third parties, including any Quality Assurance contractor, by providing access and information on the Services as required for all oversight activities and Agency-identified third party services. This specifically includes Contractor providing, on Agency request, information on the Subscription Services’ architecture, design, operating environment, security, interfaces, and operating parameters, and other information in any form, such as Documentation, that Agency in its sole discretion deems relevant to the scope of this Contract.

Responsibilities of Agency. If a Statement of Work requires Agency to provide any 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 30 Business Days per Service year, 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 30 Business Days per Service year, and Contractor can show to the reasonable satisfaction of Agency, that the 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 applicable Statement of Work or in the current Accepted Project Implementation Plan and Schedule, which the parties may change by agreement of their respective Authorized Representatives (or delegates). Delivery dates, both critical and non-critical, are set forth in the applicable Statement of Work and are subject to Agency performing its responsibilities in a timely manner.

Contractor shall provide written notice to Agency upon delivery of a completed Deliverable to Agency. By no later than (i) 15 Business Days after receipt of such notice, or (ii) the date set forth for Agency’s review in the current Accepted Project Implementation Plan and Schedule, Agency will determine whether the Deliverable meets Acceptance Criteria set forth in the Contract. 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 Deliverables that are susceptible to Acceptance Testing, Agency will conduct Acceptance Testing as set forth in Section 3.4. If Agency determines that the Deliverable meets, in all material respects, Acceptance Criteria, Agency will notify Contractor of Agency’s Acceptance in writing.

If Agency determines that a Deliverable does not meet the Acceptance Criteria in all material respects, Agency will notify Contractor in writing of Agency’s rejection of the Deliverable, and describe in reasonable detail in such notice Agency’s basis for rejection of the Deliverable. Upon receipt of notice of non-acceptance, Contractor shall, within a 15 Business Day period, or otherwise within a timeframe agreed upon by the parties, modify or improve the Deliverable at Contractor’s sole expense so that the Deliverable meets, in all material respects, the Acceptance Criteria, and notify Agency in writing that it has completed such modifications or improvements and re-tender the Deliverable to Agency. Agency will thereafter review the modified or improved Deliverable within 15 Business Days of receipt of the Contractor's delivery of the Deliverable. Failure of the Deliverable to meet the 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 as set forth in this section, or (ii) notify Contractor of such default and pursue its remedies for default under Section 15 of this Contract.

Testing, Implementation, and Stabilization.

Testing 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 a Solution in accordance with the applicable Statement of Work and this section.

System Testing. In accordance with Agency’s written notice to proceed with System Testing, Contractor shall install and test the entire Solution in the Test Environment in accordance with the Solution testing Task in the applicable Statement of Work, by using it in off-line processing of test data in order to determine if the Solution is in material conformance with applicable Requirements, and Solution design Deliverables. If Level 1, Level 2, or Level 3 Defects are discovered in the Solution, Contractor shall correct such Defects, retest, and update Documentation (including Deliverables) at no additional charge to Agency prior to completion of System Testing under this section. Contractor shall resolve Level 4 Defects at no additional charge to Agency within Agency-authorized timeframes.

User Acceptance Testing (UAT). Following successful completion of System Testing, and in accordance with the current Accepted Project Implementation Plan and Schedule, Agency will test the Solution using both test data and Agency’s converted operational data in order to determine if the Solution is in material conformance with applicable Requirements and current Accepted Solution design Deliverables. Agency will notify Contractor in writing of each Defect discovered during UAT in accordance with the Accepted test plan Deliverable, and specify its level. Contractor shall correct all Level 1, Level 2, and Level 3 Defects identified during UAT at no additional charge to Agency, and resubmit the corrected Solution to Agency for retesting within time frames agreed upon in the Accepted test plan Deliverable. All such retesting will be done on an iterative basis and be completed by Agency within time frames agreed upon in the Accepted test plan Deliverable. Contractor shall correct all Level 1, Level 2, and Level 3 Defects, and updates to all Documentation and Deliverables at no additional charge to Agency prior to completion of UAT activities under this section. Contractor shall resolve Level 4 Defects discovered during UAT at no additional charge to Agency within Agency-authorized timeframes.

Roll-out. After successful completion of UAT, and upon Agency’s notice to proceed with Roll-out, Contractor shall implement the Solution in the Production Environment and complete the agreed upon “Go-Live” activities in accordance with the current Accepted Project Implementation Plan and Schedule. 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 applicable Requirements and current Accepted Solution Design Deliverables, as such Deliverables are Accepted at the time of activities under this section.

Stabilization Period. Upon completion of Implementation activities, including Contractor’s correction of identified Level 1, Level 2, and Level 3 Defects, Agency will use the Solution for processing of data in a statewide live Production Environment for a period of 90 Calendar Days.

At the end of the Stabilization Period, if any Level 1, Level 2, or Level 3 Defects discovered during the Stabilization Period remain uncorrected, Agency will grant Contractor one additional five Business Day period from the end of the Stabilization Period 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 remaining Level 4 Defects at the end of the System Stabilization Period, and Contractor shall correct such Defects during one or more a maintenance release(s) to be delivered on an agreed upon schedule.

Completion of the Stabilization Period will mark the end of the Solution Implementation Services.

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

Agency has notified Contractor that the Solution meets all Acceptance Criteria and all Acceptance Tests have been successfully completed;

The Solution is stable, complete, and operating correctly without Level 1, Level 2 or Level 3 Defects;

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

Contractor has delivered all Documentation in accordance with the terms of this Contract, including the applicable Statement of Work; and Contractor has completed and Agency has Accepted Deliverables for training as specified in the applicable Statement of Work.

Ongoing Services.

Solution Warranty Period. Contractor shall warrant the initial Implementation of the Solution, and each subsequent Solution that modifies or enhances the Subscription Services or other components of the Services, for a period of90 Calendar Days following Final Acceptance of the Solution. Contractor shall, at no additional charge to Agency, furnish such materials and Services necessary to correct any Defects relating to or arising from the Solution that prevent Contractor’s Services from operating in accordance with Requirements and performance metrics, including as described in any Service Level Agreement.

Ongoing Services. Following Final Acceptance of the initial Implementation of the Solution, Contractor shall provide Agency and its end users the applicable ongoing Services, including Subscription Services, as set forth in this Contract. Contractor shall deliver Services established in the applicable Statement of Work, the Service Level Agreement(s), and elsewhere in this Contract during the Contract term.

Support. Contractor shall deliver Services, and furnish such materials and Services necessary to correct and prevent any Defects that preclude the Solution from meeting the Acceptance Criteria and Contract.

Upgrades. Contractor shall furnish Upgrades to the Subscription Services to Agency without additional charge when such Upgrades are made generally available by Contractor to its customers without additional charge. Contractor will provide release notes describing each Upgrade, when furnished, and documentation for the appropriate user manuals.

Enhancements. Contractor shall inform Agency of the availability of Enhancements for which a separate license fee and license agreement are required. If an Enhancement is licensed by Agency under an amendment to this Contract completed in accordance with Section 7, this Contract will apply to such Enhancement. Agency understands additional fees may apply.

Technology Refresh. It is Contractor’s intent to provide Agency with Subscription Services which meet or exceed 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 upgrade the Subscription Services to support new frequencies, technologies, and services during the Contract term consistent with upgrades provided to its other customers. Contractor has the right to upgrade the Software or Hardware and 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 upgrading of Software or Hardware or deployment of new technologies would involve changes or interference with Agency’s operations or Agency equipment or facilities used to access the Subscription Services, then Contractor shall request Agency's prior written approval, which will not be unreasonably withheld, conditioned, or delayed.

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

Response to Public Records Request for Agency Data. The System is a system of record for Oregon records. Agency, as an executive department agency of State, must respond to requests for Agency Data and other public records under Oregon’s Public Records laws, including ORS 192.311 to 192.478, within set timeframes. Contractor shall support the ability of the State to respond to public records requests for Agency Data in accordance with applicable law.

Performance Reporting.

Measurement and Monitoring Tools. Contractor shall measure and monitor the performance of the Solution against the applicable Service Level Agreements and shall use the necessary measurement and monitoring tools and procedures required to do so. Such measurement and monitoring must permit reporting at a level of detail sufficient to verify compliance with the Service Level Agreements, and is subject to audit by Agency. Contractor shall provide Agency with information and access to such tools and procedures, for purposes of auditing and verification.

Failure to Perform.

1.1.1.3. If Contractor fails to meet a performance standard, such as a Service Level Agreement (Exhibit B) or a Security and Hosting Requirement (Exhibit K), Contractor shall (i) investigate, assemble and preserve pertinent information with respect to, and report on the causes of, the failure, including performing a root cause analysis of the failure; (ii) advise Agency, as and to the extent requested by Agency, 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.

1.1.1.4. As provided in Section 15.1, Contractor agrees to provide the service credits or pay the liquidated damages specified in Exhibit B if Contractor fails to provide Deliverables or other Services as and when required by this Contract, or fails to meet the performance standards and Service Level Agreements. 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 or rights as to election of remedies.

Transition Services. Contractor shall provide transition services to support a responsible and secure transition of Services and Agency Data to another service 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, inclusive of the Subscription Services, and 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:

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

1.1.1.6. 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 move to the Wind-Down Phase described below.

Transition Plan. Contractor and Agency will outline a Transition Plan, which may be requested pursuant to a notice of termination or in anticipation of the Contract terminating in accordance with its terms. The Transition Plan may serve as an update to or a confirmation of a Transition Services Task in a Statement of Work. Contractor shall deliver a detailed Transition Plan within 14 Calendar Days of Agency’s written request, or otherwise within a timeframe agreed upon by the parties, for Agency review. The Transition Plan will not be effective until it is approved by the Oregon Department of Justice (“DOJ”). This plan will determine the nature and extent of Contractor’s Transition Services obligations and detail the transfer of Services. The Transition Period will commence on the date set in the DOJ-approved Transition Plan; provided, however, if Contractor does not deliver an acceptable 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:

1.1.1.7. The respective Tasks and Deliverables to be completed by each party in during the Transition Period,

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

1.1.1.9. A schedule identifying which party is responsible for paying the cost (if any) related to each Task and Deliverable. This schedule may include Transition Services that will not exceed the then-current Contract Maximum-Not-To-Exceed. If the parties agree Transition Services require new or additional Services that cause an increase in the Contract Maximum-Not-To-Exceed, the Transition Plan will be in the form of a Contract amendment.

1.1.1.10. 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 will remain in effect for the duration of the Transition Period.

1.1.1.11. Contractor shall complete the transition of Agency Data from Contractor and its subcontractors to Agency and to any providers that Agency designates, without causing any unnecessary interruption of or adverse impact on the Services.

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

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

1.1.1.13. Provide Agency and any Agency-designated provider with all information regarding the Solution, 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.

1.1.1.14. 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 performing Services, and Agency will pay Contractor all amounts payable to Contractor for any Deliverables or Services delivered, 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 and agrees that the State selected Contractor, and is entering into this Contract, because of the special qualifications of Contractor's Key Persons identified in Exhibit E. Contractor's Key Persons shall not delegate performance of their powers and responsibilities they are required to provide under this Contract to another Contractor employee(s) 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. In the event Contractor requests that Agency approve a re-assignment or transfer of the Key Persons, or if 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 E deemed amended to include such Key Person. Agency reserves the right to determine if a replacement Key Person has acquired the project knowledge and skills necessary to perform within the twenty-eight (28) Calendar Day period following Agency approval of the replacement 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 fourteen (14) Calendar Days but not more than twenty-eight (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 Subscription Services 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 the Services required to deliver Subscription Services that meet Final Acceptance criteria.

Account Manager. Contractor shall designate an Account Manager as a Key Person for the Services. The Account Manager shall be familiar with Agency’s business operations and objectives. The Account 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:

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

1.1.1.16. Review System and Services performance and Contractor’s performance throughout the Contract and discuss possible improvements;

1.1.1.17. Discuss potential or planned changes to the System or Services;

1.1.1.18. Discuss any other Agency-raised issues or concerns; and

1.1.1.19. Provide at Agency’s request such other reports as Agency may request.

Security Manager. Contractor shall designate a Security Manager as a Key Person for the duration of the Contract. The Security Manager shall be familiar with federal and State security requirements and objectives. The Security Manager will participate with Agency in regular meetings and coordinate with Agency security regulators and is responsible for ensuring that Contractor is maintaining security controls in alignment with federal and State security standards.

Contractor’s Employees and Subcontractors. Contractor shall not use subcontractors to perform the Services without the State’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.212 for preventing sexual harassment, sexual assault, and discrimination against employees who are members of a protected class. Contractor agrees, as a material term of this Contract, to maintain such policy and practice in force during the entire Contract term. Contractor’s failure to maintain such policy and practice constitutes a breach entitling the State to terminate this Contract for cause.

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, 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.

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. Contractor shall perform all Services as an independent contractor. Although Agency reserves the right to evaluate the quality of the completed performance, Agency cannot 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. Contractor declares and certifies by execution of this Contract that it is not an “officer,” “employee,” or “agent” 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 the State and Contractor. Nothing in this Contract will be construed to make the State and Contractor partners or joint venture participants.

Declaration and Certification as to Conflict of Interest. Contractor by execution of this Contract 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 and, 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.

Compliance with Tax Laws. Contractor shall, throughout the duration of this Contract, comply with all tax laws of State and all applicable tax laws of any political subdivision of State. Any violation of this section or of Contractor’s warranty in Section 11.1.7 constitutes a material breach of this Contract. Any violation of this section or Section 11.1.7 entitles the State to terminate this Contract, to pursue and recover damages that arise from the breach and the termination of this Contract, and to pursue all other remedies available under this Contract, at law, or in equity.

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 _____Dollars ($_____) (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.

3.1.1. Payment of Fixed Prices. Agency will pay to Contractor the fixed price listed in Exhibit L for each Deliverable completed, delivered to, and Accepted by Agency.

3.1.2. Payment for Ongoing Services. Agency will pay to Contractor the fixed price per month for the Subscription Services (“Subscription Services Fee”), not to exceed __________________ as set forth in Exhibit L.

3.1.3. Payment for Equipment and Hardware. Subject to the parties’ agreement that Contractor will provide any equipment or hardware under this Contract, Agency will pay Contractor for any equipment and hardware delivered under this Contract upon Agency’s Acceptance of the equipment or hardware in accordance with the and delivery terms negotiated by the parties and at the prices in Exhibit L.

Retention Amount.

3.1.4. Retention Amount for Implementation Services. Agency may hold back an amount (the " Retention Amount") of not more than fifteen percent (15%) of any amount that is payable by Agency to Contractor for Implementation or for an Enhancement or Change Order, other than amounts attributable to the purchase of a license for any Third Party Intellectual Property. Agency will pay the then-accrued Retention Amount to Contractor within 30 Calendar Days following Final Acceptance.

Expenses. Agency will not pay or reimburse any expenses incurred by Contractor related to the Services except as authorized in the applicable Statement Work and the Payment Schedule (Exhibit L). Any such authorized travel expenses must comply with the Oregon Statewide Travel Policy, https://www.oregon.gov/das/Financial/Acctng/Documents/40.10.00.pdf including as updated.

Invoices. Agency will pay Contractor not more than once each month upon Contractor’s submission of a detailed invoice that sets forth the fixed prices due for Services performed and Accepted Deliverables, and for Subscription Services fees. Such invoices must comply with the requirements of this Section 6, identify the Deliverables completed and Accepted for which Contractor seeks compensation, and itemize and explain all authorized expenses and fees for which reimbursement is claimed. Contractor shall submit invoices to Agency’s Authorized Representative (or delegate). Agency will have the right to review each such invoice for compliance with the requirements of this section and any other relevant provisions of this Contract. 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 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 delivered 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…