3 - ATT B Sample Master Contract 3.6.25.docx

ATTACHMENT B

STATE OF OREGON

SAMPLE MASTER CONTRACT FOR CCaaS This Master Contract for CCaaS (Master Contract) is entered into by and between the State of Oregon (State) acting by and through its Department of Administrative Services, State Procurement Services (SPS) on behalf of Enterprise Information Services, Shared Service (EIS) and other Authorized Agencies (EIS and Authorized Agencies may be individually and collectively referred to as “Agency”), and __________________ a ___________ corporation (Provider) and is effective as of the Effective Date (defined below).

RECITALS

The State desires to engage a Provider to provide Contact Center as a Service (CCaaS) and other managed services (the “Services” as defined below) to enable EIS and other Authorized Agencies to achieve specific business and mission objectives defined in this Master Contract. To that end, SPS issued RFP # S-10700-00012867.

Provider is the successful proposer to the RFP and the State desires Provider to perform the Services.

Provider desires to perform the Services for EIS and other Authorized Agencies.

AGREEMENT

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

1. DEFINITIONS.

“Acceptance” or “Accepted” means written confirmation by Agency that Provider 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 required under this Master Contract, including but not limited to requirements and specifications for a Specific Deliverable in the applicable Statement of Work (or Service Order), and the Performance Warranties set forth in Section 11.2.

“Agency”, for the purposes of this Master Contract, includes SPS, acting on behalf of itself or SPS acting on behalf of other agencies, EIS, and Authorized Agencies.

“Agency Data” means information created and information provided by Agency, and information created and collected by Provider regarding Agency and its clients 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 Provider’s primary point of contact for the Services.

“Authorized Agency” means a State agency, board, commission, department or division authorized by EIS to request Services from Provider under this Master Contract.

“Authorized Representative” means a person representing a party to this Master Contract who is authorized to make commitments and decisions on behalf of the party regarding the performance of this Master Contract. Provider’s Authorized Representative is the person so identified in Exhibit E. SPS’ and EIS’ Authorized Representatives are the person so identified in Exhibit F. Other Authorized Agency Authorized Representatives are identified in a specific Service Order(s) issued pursuant to this Master Contract.

“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.

“Calendar Days” means contiguous days.

“Contact Center as a Service” or CCaaS” means a cloud-based solution that manages customer interactions across multiple channels like phone, email, chat, and social media, without the need to maintain on-premise infrastructure, including provision of all the functionalities of a contact center through a subscription service, managed by Provider.

“Provider Intellectual Property” means any intellectual property that is owned by Provider, which includes proprietary information described in Exhibit G, Documentation, and derivative works and compilations of any Provider Intellectual Property.

“Deliverables” means all items, including Work Product, that Provider is required to deliver to Agency under this Master Contract (or Service Order).

“Documentation” means all documents, including documents that are Deliverables described in a Statement of Work (or Service Order) and which may include reports, minutes, manuals, training materials, guides, commentary, listings, requirements documentation, and other materials that are to be delivered by Provider under this Master Contract (or Service Order). Documentation includes documents in hard copy or electronic form.

“Key Persons” means Provider’s Authorized Representative, the Project Manager, and all other persons designated as Key Persons in Exhibit E or on the Service Order.

“Services” means the CCaaS and all effort to be expended by Provider under the Master Contract (or Service Order), including advice and expertise, and development and delivery of Deliverables and other Work Product.

“State” means the State of Oregon.

“Statement of Work” or “SOW” means the documents that describe the Services to be provided by Provider, including the Tasks, Deliverables and Milestones, Documentation, Work Product, the attributes (including requirements and specifications) of each Deliverable, identification of the Tasks and Services that are associated with each Deliverable, and a completion date for each Milestone and Deliverable, the Payment Schedule for each Deliverable and Milestone, and any other items as agreed by the parties and attached hereto as a Statement of Work, including as amended pursuant to Section 7.

“Task” means a segment of the Services to be provided by Provider under this Master Contract (or Service Order).

“Third Party Intellectual Property” means any intellectual property owned by parties other than Agency or Provider. Third Party Intellectual Property includes software owned by Third Parties, and derivative works and compilations of any Third-Party Intellectual Property.

“Work Product” means everything that is specifically made, conceived, discovered, or reduced to practice by Provider or Provider’s subcontractors or agents (either alone or with others) pursuant to the Master Contract (or Service Order), 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, Provider Intellectual Property, or Third-Party Intellectual Property.

2. TERM.

The Effective Date of this Master Contract is the date on which this Master Contract is fully executed and approved according to applicable laws, rules and regulations. This Master Contract terminates on [date to be determined at Master Contract execution], unless otherwise terminated or extended in accordance with its terms. The parties may extend this Master Contract by amendment.

3. SCOPE OF SERVICES.

3.1. Performance and Delivery.

3.1.1. Responsibilities of Provider. Provider shall provide the CCaaS and other Services to EIS as described in the Statement of Work, attached hereto as Exhibit A, and meeting or exceeding the performance standards and service levels set forth in Exhibit B, Performance Standards and Service Levels.

3.1.1.1. Service Orders. In addition, from time to time, Authorized Agencies may issue Service Orders, for the Services generally described in Exhibit A-1, Service Catalog. If an Authorized Agency needs Provider’s Services under this Master Contract, Authorized Agency shall submit a written request to Provider. Provider shall submit a written quote for the Services to Authorized Agency. Upon approval of the quote from EIS and acceptance by Authorized Agency, Provider and Authorized Agency shall enter into an individual Service Order substantially in the form attached hereto as Exhibit L. All Service Orders will be subject to and incorporate the provisions of this Master Contract. Authorized Agency shall be solely responsible for the costs and expenses under a Service Order.

3.1.2. Performance Standards. Provider shall perform the Services meeting or exceeding the performance standards and service levels set forth in Exhibit B and as set forth in the applicable Statement of Work (or Service Order) in accordance with the current, Accepted Project Implementation Plan and Schedule and the standards and methodologies set forth in the Statement of Work (or Service Order) and elsewhere in this Master Contract (or Service Order). Provider agrees to perform the Services:

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

3.1.2.2. In compliance with information technology standards established by Enterprise Information Services EIS), found online at: https://www.oregon.gov/eis/pages/default.aspx , including as updated from time to time.

3.1.3. Cooperation. Provider shall cooperate with SPS, EIS, Agency and their designated third parties, including the State’s managed services provider for communications - Kyndryl, Inc., any Quality Assurance contractors, or any other third-party provider, by providing access and information on Provider’s Services as required for all oversight activities and State-identified third-party services.

3.2. Responsibilities of Agency. If a Statement of Work (or Service Order) 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 thirty (30) Calendar Days, Provider's sole remedy is an extension of the applicable delivery dates corresponding to the delay caused by Agency. If Agency's failure to provide such resources exceeds thirty (30) Business Days, and Provider 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 (or Service Order), then Provider will be entitled to recover from Agency the reasonable amount of such increased costs. Provider's right to delay applicable delivery dates or recover for increased costs may be exercised only if Provider provides Agency with reasonable notice of Agency's failure and Provider uses commercially reasonable efforts to perform notwithstanding Agency's failure to perform.

3.2.1. Exclusivity. This is not an exclusive agreement. EIS or Authorized Agency (with EIS approval and authorization) may acquire these Services or similar services from any other provider or providers at any time.

3.3. Delivery and Review of Deliverables.

3.3.1. Provider shall provide CCaaS and other managed services to EIS and Authorized Agencies as detailed in the Statement of Work attached hereto as Exhibit A (or as detailed in an applicable Service Order).

3.3.2. Provider shall deliver Deliverables and complete Milestones as set forth in the applicable Statement of Work attached hereto as Exhibit A (or in an applicable Service Order) by no later than the date or dates set for delivery in the Statement of Work (or Service Order). Delivery dates, both critical and non-critical, are set forth in the Statement of Work (or Service Order) and are subject to Agency performing its responsibilities in a timely manner.

3.3.3. Unless otherwise set forth in the Statement of Work attached hereto as Exhibit A (or in the applicable Service Order), Provider shall provide written notice to Agency upon delivery of a completed Deliverable to Agency. By no later than (i) fifteen (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 Master Contract (or Service Order). Acceptance Criteria includes all requirements for a Deliverable and associated Services described in the Statement of Work (or Service Order), and the Performance Warranties in Section 11.2. If Agency determines that the Deliverable meets, in all material respects, Acceptance Criteria, Agency will notify Provider of Agency’s Acceptance in writing.

3.3.4. Unless otherwise set forth in the Statement of Work attached hereto as Exhibit A (or in the applicable Service Order), If Agency determines that a Deliverable does not meet the Acceptance Criteria in all material respects, Agency will notify Provider 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, Provider shall, within a fifteen (15) Business Day period, modify or improve the Deliverable at Provider’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 fifteen (15) Business Days of receipt of the Provider'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 Provider. In the event of such default, Agency may either (i) notify Provider of such default or instruct Provider to modify or improve the Deliverables as set forth in this section, or (ii) notify Provider of such default and pursue its remedies for default under Section 15 of this Master Contract.

3.4. Final Acceptance. “Final Acceptance” of the Tasks and Deliverables under a Statement of Work or Service Order will occur when the following events have occurred or conditions exist:

3.4.1. Agency has notified Provider that Deliverables meet all Acceptance Criteria including as specified in the applicable Statement of Work (or Service Order);

3.4.2. All Documentation is complete, inventoried, and Accepted by Agency. Provider shall provide all text Documentation both in hard copy and in an electronic format as specified in the applicable Statement of Work (or Service Order); and

3.4.3. Agency has notified Provider that State of Oregon authorizations to Accept the Deliverables have been received.

3.5. Warranty Period. Provider shall warrant the Accepted Deliverables for a period of ninety (90) Calendar Days following Final Acceptance. During the Warranty Period, Provider shall, at no additional charge to Agency, furnish such materials and Services necessary to correct any deficiencies in a Deliverable that prevent the Deliverable from meeting its Acceptance Criteria and Master Contract warranties.

3.6. Ongoing Services. Following Implementation of the Solution under a Statement of Work (or Service Order), Provider shall provide Services to Agency and its end users as set forth in this Master Contract (or Service Order).

3.6.1. Performance Metrics; Failure to Perform. Provider agrees to meet or exceed the service level agreements and performance standards set forth in Exhibit B or in the applicable Statement of Work (or Service Order), during the period of performance. If Provider fails to meet a performance standard, Provider shall (i) investigate, assemble and preserve pertinent information with respect to, and report on the causes of, the problem; (ii) advise Agency, as and to the extent requested by Agency, of the status of remedial efforts being undertaken with respect to such problem; (iii) minimize the impact of and correct the problem and begin meeting the performance standard; and (iv) take appropriate preventive measures so that the problem does not recur.

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

3.6.3. Enhancements. Provider shall inform SPS, EIS and 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 Master Contract (or Service Order) completed in accordance with Section 7, this Master Contract will apply to such Enhancement. Agency understands additional fees may apply.

3.6.4. Technology Refresh. It is Provider’s intent to provide the State and Agency with a Solution which meets or exceeds industry standards for the duration of the Master Contract and all Service Orders. As such, and subject to the terms and conditions of this Master Contract, Provider shall use commercially reasonable efforts to upgrade the Solution to support new frequencies, technologies, and services during the Master Contract term consistent with upgrades provided to its other customers. Provider has the right to upgrade and implement new technologies to better serve Agency and its end users, provided that (i) such actions by Provider 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 Provider are undertaken in accordance with and are governed by the terms of this Master Contract. In the event that Provider’s upgrading of the Solution or deployment of new technologies would involve changes or interference with Agency’s operations or Agency equipment or facilities used to access the Services, then Provider shall request Agency's prior written approval, which will not be unreasonably withheld, conditioned, or delayed.

3.6.5. Business Continuity Management and Disaster Recovery. Provider shall deliver and maintain Business Continuity Management and Disaster Recovery Plan and Procedures for the Services that are acceptable to SPS and EIS. In the event of a disaster, Provider shall comply with the provisions of and deliver Services according to the Business Continuity Management and Disaster Recovery Plan and Procedures.

3.6.6. Response to Public Records Requests for Agency Data. 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. Provider shall support the ability of the State to respond to public records requests for Agency Data in accordance with applicable law.

3.7. Transition Services. Upon termination of this Master Contract (or a Service Order) Provider 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”) for up to One Hundred Eighty (180) Calendar Days (“Transition Period”). During the Transition Period, Provider shall complete the transition of Agency Data and Services from Provider and its subcontractors to Agency and to any providers that Agency designates, without causing any unnecessary interruption of or adverse impact on the Services. Provider shall:

· Cooperate with Agency and any Agency-designated provider by promptly taking all steps required to assist Agency in transitioning the Agency Data and Services;

· 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 (This includes data conversions, data access or transfers, and interface specifications.); and

· Promptly and orderly conclude all Services as Agency may direct (This includes the return of Agency property, documentation of any work in progress, and other measures).

3.7.1. Transition Plan. SPS, EIS and/or Agency may request a detailed plan at any time. Provider shall deliver a detailed Transition Plan within fourteen (14) Calendar Days of SPS’, EIS’ and/or Agency’s written request, or otherwise within a timeframe agreed upon by the parties, for Agency review. The detailed plan must include:

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

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

· 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 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.

3.7.2. The parties will cooperate in good faith with each other in connection with their obligations under this Section 3.7 and will perform their obligations. If the Transition Period extends beyond the Contract term, the provisions of this Contract remain in effect for the duration of the Transition Period.

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

4. PROVIDER’S PERSONNEL.

4.1. Key Persons. Provider acknowledges and agrees that Agency selected Provider, and is entering into this Master Contract, because of the special qualifications of Provider's Key Persons identified in Exhibit E. Provider's Key Persons shall not delegate performance of their powers and responsibilities they are required to provide under this Master Contract to another Provider employee(s) without first obtaining the written consent of the Agency. Further, Provider 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 the Agency with the required expertise, experience, judgment, and personal attention, without first obtaining Agency's written consent to such re-assignment or transfer, which Agency will not unreasonably withhold or delay. Notwithstanding the foregoing, Provider may replace Key Persons without Agency’s consent in the event any Key Persons are no longer available due to circumstances beyond Provider’s reasonable control, such as death, illness, or termination of employment with Provider. In the event Provider requests that Agency approve a re-assignment or transfer of the Key Persons, or if Provider 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 Master 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.

Provider 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.

4.2. Provider’s Employees and Subcontractors. Provider shall not use subcontractors to perform the Services without the Agency’s prior written consent. Provider 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 Master Contract.

4.3. Anti-Discrimination. Provider certifies that Provider 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. Provider agrees, as a material term of this Master Contract, to maintain such policy and practice in force during the entire Master Contract term. Provider’s failure to maintain such policy and practice constitutes a breach entitling Agency to terminate this Master Contract for cause.

4.4. Pay Equity. As required by ORS 279B.235, Provider 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. Provider’s compliance with this section is a material term of this Master Contract, and Provider’s failure to comply constitutes a breach entitling Agency to terminate this Master Contract for cause.

As required by ORS 279B.235, Provider 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. Provider 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.

5. INDEPENDENT CONTRACTOR; TAXES AND WITHHOLDING.

5.1. Independent Contractor. Provider 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 Provider’s performance. Provider is responsible for determining the appropriate means and manner of performing the Services. Provider declares and certifies by execution of this Master Contract that it is not an “officer,” “employee,” or “agent” of Agency, as those terms are used in ORS 30.265.

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

5.3. Declaration and Certification as to Conflict of Interest. Provider by execution of this Master 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 Provider or any Provider personnel or Key Persons who will perform Services under this Master Contract;(ii) in the event that Provider or its personnel are either employed by or performing services for the federal government, that no rules or regulations of the agency for which Provider or its personnel work or are employed prohibit Provider or its personnel from providing the Services under this Master Contract; and (iii) this Master Contract and the delivery of Services creates no other violation of ORS Chapter 244 for Provider, its agents, or subcontractors.

5.4. Responsible for Taxes. Provider is responsible for all federal and state taxes applicable to compensation and other payments paid to Provider under this Master Contract and, unless Provider is subject to backup withholding, Agency will not withhold from such compensation and payments any amount to cover Provider’s federal or state tax obligations. Provider is not eligible for any social security, unemployment insurance, or workers’ compensation benefits from compensation or payments paid to Provider under this Master Contract, except as a self-employed individual.

5.5. Compliance with Tax Laws. Provider shall, throughout the duration of this Master Contract, comply with all tax laws of the State and all applicable tax laws of any political subdivision of the State.

5.6. Foreign Contractor. If Provider is not domiciled in or registered to do business in the State of Oregon, Provider 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 Master Contract. Provider shall demonstrate its legal capacity to perform the Services under this Master Contract in the State of Oregon before entering into this Master Contract.

5.7. Disclosure of Social Security Number. Provider shall provide Provider’s Social Security number unless Provider 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.

6. COMPENSATION.

6.1. Rates and Charges. The Rates and Charges payable for the Services are set forth on Exhibit A-2 Rate Card.

6.1.1. Service Order. The maximum, not-to-exceed compensation that an Agency will pay to Provider under a Service Order which includes payment for any allowable expenses for which Provider may request reimbursement under the Service Order (the “SO NTE”) will be set forth in the applicable Service Order, subject to the rates set forth in Exhibit A-2.

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

6.3. Retention Amount. 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 Provider for an Accepted Deliverable under either a Statement of Work or a Service Order. Agency will pay the then-accrued Retention Amount to Provider within thirty (30) Calendar Days completion of the Services under a Statement of Work or a Service Order.

6.4. Expenses. Agency will not pay or reimburse any expenses incurred by Provider during the completion of the Services except as authorized in the Statement. Any such authorized travel expenses must comply with the Oregon Travel Policy, including as updated.

6.5. Invoices. Provider shall submit to Agency not more than once each month an accurate, detailed invoice that sets forth the Services performed and Deliverables Accepted by Agency. Such invoices must comply with the requirements of this Section 6, identify the Deliverables completed and Accepted for which Provider seeks compensation, and itemize and explain all authorized expenses for which reimbursement is claimed. Provider 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 Master Contract. Agency will pay all undisputed amounts, less any retention, within thirty (30) Calendar Days of receipt of the invoice, subject to the provisions of ORS 293.462.

6.6. Limit on Payments. Provider shall not submit invoices for, and Agency will not pay, any amount in excess of the Maximum Not-To-Exceed Compensation or SO NTE. If this maximum amount is increased by amendment of this Master Contract or Service Order pursuant to Section 7, the amendment must be fully effective before Provider performs Services 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 Master Contract or the applicable Service Order.

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

Similarly, Authorized Agency believes it has sufficient funds currently available and authorized for expenditure to finance the costs of Services under a Service Order within Authorized Agency’s biennial appropriation or limitation. Provider understands and agrees that Authorized Agency’s payments under a Service order are contingent on Authorized Agency receiving appropriations, limitations, or other expenditure authority sufficient to allow Authorized Agency, in the exercise of its reasonable administrative discretion, to continue to make payments under a Service Order.

7. AMENDMENTS. This Master Contract may be amended, modified, or supplemented only by a written amendment signed by SPS and Provider. Service Order(s) may be amended, modified, or supplemented only by a written amendment signed by EIS or the Authorized Agency issuing the Service Order and Provider. Any amendment that provides for additional Services may only provide for Services directly related to the scope of Services described in this Master Contract (or the Service Order), and no amendment will be effective until all requisite signatures and approvals are obtained. Either SPS or Provider may request a change to this Master Contract, including all exhibits hereto, by submitting a written proposal describing the desired change to the other party; EIS or Authorized Agency or Provider may request a change to a Service Order, including all exhibits thereto, by submitting a written proposal describing the desired change to the other party.

7.1. Change Control. Subject to the conditions above, amendments to a Statement of Work, attached hereto as Exhibit A or amendments to the Services under a Service Order and related costs may be managed through an Agency-authorized change control process that reflects at least the processes described in this section. Either Agency or Provider may request a change by submitting a written proposal describing the requested change to the other party. Agency’s and Provider’s Authorized Representatives will review the written change request and either mutually approve it for further analysis or reject it.

7.1.1. Analysis of Change Requests; Change Orders. The parties will analyze each change request (that has not been rejected) in accordance with the authorized change control process to determine the effect that the implementation of the change will have on a Statement of Work (or Service Order), and related costs. If Provider requests to make changes to meet Statement of Work (or Service Order) requirements, such changes will be made at no cost to Agency, unless such changes are due to the failure of Agency or its agents to perform their responsibilities in a timely manner. If the analyzed change request is mutually approved, the agreed-upon party will prepare a written change order, detailing all modifications to the changed Statement of Work (or Service Order) and related costs (the “Change Order”). A Change Order at a minimum must contain:

· The effective date of the Change Order;

· A detailed description of the Services to be performed under the Change Order;

· The particular specification or matter in the Master Contract or Service Order which will be altered, and the precise scope of that alteration;

· Whether the Change Order modifies critical path Deliverables or Milestones;

· Any change in the cost of the Services to be performed pursuant to the Change Order; and

· The cumulative cost changes of all Change Orders previously issued.

7.1.2. A Change Order may alter only that portion of a Statement of Work (or Service Order) and related costs to which it expressly relates and must not otherwise affect the terms and conditions of this Master Contract. Both parties must sign the Change Order to authorize the Services described therein and incorporate the changes into this Master Contract. No Services may be performed pursuant to the Change Order and no payment will be made on account of the Change Order until the Change Order is fully executed and all required State of Oregon approvals are received.

7.2 Payments. Subject to the foregoing provisions of this Section 7.1 and performance of the Services, Agency will pay for Services performed pursuant to an Amendment or a Change Order according to the acceptance and payment procedures set forth in this Master Contract.

8. OWNERSHIP AND LICENSES.

8.1. Agency Intellectual Property and Agency Data. Agency owns all Agency Intellectual Property, including Agency Data, provided to or collected by Provider pursuant to this Master Contract (or Service Order). Agency grants Provider a right to use, copy, display, distribute, transmit and prepare derivative works of Agency Intellectual Property, including Agency Data only to fulfill the purposes of this Master Contract. Agency’s license to Provider is limited by the term of the Master Contract (or Service Order) and the confidentiality and security obligations of this Master Contract.

8.2. Provider Intellectual Property. Provider retains ownership of all Provider Intellectual Property that Provider delivers to Agency pursuant to the Services performed under this Master Contract (or Service Order). Provider grants Agency a license to Provider Intellectual Property as set forth in Exhibit G. In the event that Work Product is Provider Intellectual Property, a derivative work based on Provider Intellectual Property, or a compilation that includes Provider Intellectual Property, and provided Agency has paid any applicable licensing fee, Provider grants Agency a perpetual non-exclusive, irrevocable, royalty-free, world-wide license to use, copy, display, distribute, transmit and prepare derivative works of Provider Intellectual Property employed in the Work Product, and to authorize others to do the same on Agency’s behalf.

8.3. Work Product. Except as otherwise provided herein or in a Statement of Work (or Service Order), Agency owns all Work Product.

8.4. Third Party Intellectual Property. Unless otherwise specified in a Statement of Work (or Service Order) that Agency, on its own, will acquire and obtain a license to Third Party Intellectual Property, Provider shall secure on Agency’s behalf, in the name of Agency and subject to Agency’s approval, a license to Third Party Intellectual Property provided to Agency by Provider during the term of the Master Contract (or Service Order) necessary for Provider to deliver the Services and Deliverables, including Work Product. Licenses for Third Party Intellectual Property are set forth in Exhibit H, and Exhibit H will be deemed to include any additional licenses for Third Party Intellectual Property approved by Agency. In the event that Work Product is Third Party Intellectual Property, a derivative work based on Third Party Intellectual Property, or a compilation that includes Third Party Intellectual Property, Provider shall secure on Agency’s behalf and in the name of Agency an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Third Party Intellectual Property and the pre-existing elements of the Third Party Intellectual Property employed in the Work Product, and to authorize others to do the same on Agency’s behalf.

8.5. No Rights. Except as expressly set forth in this Master Contract, nothing in this Master Contract may be construed as granting to or conferring upon Provider 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 Master Contract, nothing in this Master Contract may be construed as granting to or conferring upon Agency any right, title, or interest in any Provider Intellectual Property that is now owned or subsequently owned by Provider.

8.6. 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 Master Contract.

8.7. Competing Services. Subject to the provisions of this Section 8, and Provider’s obligations with respect to Confidential Information, including as defined in Section 9, nothing in this Master Contract precludes or limits in any way the right of Provider to: (i) provide services similar to those contemplated in this Master Contract, or, consulting or other services of any kind or nature whatsoever to any individual or entity as Provider in its sole discretion deems appropriate, or (ii) develop for Provider 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 performance under this Master Contract [related to and arising from its own Intellectual Property] free of any use restriction or payment obligation to the other.

9. PROVIDER’S DUTIES OF CONFIDENTIALITY AND NON-DISCLOSURE.

9.1. Confidential Information. Provider acknowledges that it and its employees, agents, or subcontractors may, in the course of performing the Services under this Master Contract, be exposed to or acquire information that is confidential to Agency or Agency’s clients. Any and all information of any form obtained by Provider or its employees, agents, or subcontractors in the performance of this Master Contract, including Agency Data, is deemed to be confidential information of Agency (“Confidential Information”). Provider 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.

9.2. Non-Disclosure. Provider, 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. Provider shall assist Agency in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the generality of the foregoing, Provider shall advise Agency immediately in the event Provider 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 Master Contract, and Provider will at its expense cooperate with Agency in seeking injunctive or other equitable relief in the name of Agency or Provider against any such person. Provider shall not at any time during or after the term of this Master Contract, except as directed by Agency, disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this Master Contract, and that upon termination of this Master Contract or at Agency’s request, Provider shall deliver to Agency all documents, papers, and other matter in Provider's possession that embody Confidential Information. Notwithstanding the foregoing and unless otherwise specified in this Master Contract, Provider may keep one copy of such Confidential Information necessary for quality assurance, audits, and evidence of performance of the Services.

The following information is not subject to the obligations of non-disclosure: information that (i) is or becomes (other than by disclosure by Provider) publicly known; (ii) is furnished by Agency to others without restrictions similar to those imposed by this Master Contract; (iii) is rightfully in Provider’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Master 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 Provider who can be shown to have had no access to the Confidential Information.

9.3. Privacy and Security Requirements. Provider 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 J, Privacy and Security Requirements, as they are stated elsewhere in this Master Contract, and as such laws, regulations, and policies are updated or otherwise made available to Provider.

9.4. Criminal Background Check. Provider’s employees, agents and subcontractors that will perform Services under this Master Contract must submit to a criminal background check conducted by Agency. Such background check must occur prior to arrival on Agency premises or the Project facility, or prior to access of Agency Confidential Information, whichever occurs first. Background checks will be performed at Agency expense. Agency in its sole discretion has the right to reject any Provider employee, agent, or subcontractor, or limit any such person’s access to State systems or premises based on the results of the background check.

9.5. Confidentiality Policies. Provider shall, upon Agency’s request, provide its policies and procedures for safeguarding Confidential Information to Agency for Agency’s review and consent. Such policies must address information conveyed in oral, written, and electronic format and include procedures for how Provider will respond when a violation or possible violation occurs.

9.6. Injunctive Relief. Provider 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, State 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. Provider 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.

9.7. Publicity. Provider agrees that it will not disclose the form, content or existence of this Master 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 Provider’s services, without the prior written consent of Agency.

10. PROVIDER’S PROPRIETARY INFORMATION; OREGON PUBLIC RECORDS LAWS. Agency will use reasonable efforts to maintain the confidentiality of any proprietary information received from Provider and will not use such proprietary information except to fulfill its obligations under this Master Contract and applicable state and federal law. Provider acknowledges and agrees that any obligation of Agency to maintain the confidentiality of Provider’s proprietary information is conditioned by and subject to Agency’s obligations under the Oregon Public Records Laws, including ORS 192.311 to 192.478, which may require disclosure of proprietary information as a “public record” unless exempt under ORS 192.345 or ORS 192.355, and the provisions for the custody and maintenance of public records, ORS 192.005 to 192.170.

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

10.2. Agency may disclose Provider proprietary information to its third party Quality Assurance contractor, and to State and federal oversight authorities to make required reports, to comply with requests for information, or to comply with an audit.

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