35077 Attachment A_Sample Price Agreement~1.docx

RFQ/Bid Solicitation S-7300-00004198 (35077) – Road Usage Charge Commercial Account Manager Att A

ATTACHMENT A

SAMPLE PRICE AGREEMENT

State of Oregon – Department of Transportation Price Agreement for Services

PRICE AGREEMENT #: _______________

PROJECT NAME: Road Usage Charge Commercial Account Manager

Certified Small Business Aspirational Target (for State-only funded and will exceed $100,000, including as amended; see Exhibit H)

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

12%

Assigned to WOCs when applicable

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

Name:

Address:

Phone:

Fax:

Email:

Agency’s Contract Administrator for this Price Agreement:

______@odot.oregon.gov

Address:

Fax:

Contractor’s Contract Administrator for this Price Agreement:

______@_____.com

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

______@odot.oregon.gov

Alternate Contact for Contractor

______@_____.com

Either party may change its Contract Administrator by providing the other notice in compliance with Section 17.6 of this Price Agreement.

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

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

Expiration and WOC Assignment Period

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

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

this Price Agreement less all exhibits;

Exhibit D, (Federal Terms and Conditions);

Exhibit C (Special Terms and Conditions);

Exhibit L (Security and Privacy Provisions0;

Exhibit A (Statement of Work);

Exhibit B (Required Insurance);

Exhibit E (Independent Contractor Certification) Exhibit F (Compensation Provisions);

Exhibit G (Title VI, Non-Discrimination Provisions);

Exhibit H (Certified Small Business Aspirational Target Provisions) Exhibit I (Work Order Contract Assignment and Requirements) The foregoing documents and Exhibits are attached hereto and made a part of the Price Agreement by this reference.

Services.

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

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

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

Compensation.

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

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

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

Expenses. Agency will not pay or reimburse any expenses incurred by Contractor during the completion of the Services except as authorized in the Statement Work or elsewhere in this Price Agreement. Any such authorized travel expenses must comply with the Oregon Travel Policy available on the Internet at: https://www.oregon.gov/das/Financial/Acctng/Documents/40.10.00.pdf Funds Available and Authorized.

1.1.1. Funds Available. Contractor shall not be compensated for Goods provided or Services performed under WOCs established under this Price Agreement by any other agency or department of the State of Oregon, other than Agency. Agency reasonably believes that, as of the effective date of the WOC, it has sufficient funds available and authorized for expenditure to finance the costs of the WOC within Agency's biennial appropriation or limitation. Contractor understands and agrees that Agency's payment of amounts under the WOC is contingent on Agency receiving from the Oregon Legislative Assembly appropriations, limitations, or other expenditure authority sufficient to allow Agency, in the exercise of its reasonable administrative discretion, to continue to make payments under the WOC. In the event Agency staff responsible for oversight of the WOC become aware that sufficient funds are not available and authorized for expenditure to finance the costs of the WOC within Agency’s biennial appropriation or limitation, Agency shall give prompt written notice to Contractor. In such event, Agency shall, to the extent state funds remain lawfully available for that purpose or these purposes, take reasonable action to mitigate Contractor’s losses.

1.1.2. OReGO Payments. In the OReGO mileage reporting and charge collection phase, Agency will pay Contractor the compensation established by the WOC or WOCs that address payment to Contractor of the amounts ascribed to Contractor’s performance of the Services necessary for the conduct of Contractor’s mileage reporting and charge collection operations. Contractor will submit to Agency invoices for the payment of the agreed compensation on a quarterly basis no later than the 10th day of the month immediately following the quarter for which OReGO charges were collected. Contractor’s fee in respect of any volunteer who has been enrolled for less than a full billing quarter shall be prorated by multiplying the full quarterly fee per volunteer by a fraction in which the numerator is the number of days the particular volunteer was enrolled and the denominator is the number of days in the quarter. Agency’s payment to Contractor will be due 30 days after the date of Contractor’s delivery of the invoice to Agency. Past due amounts shall bear interest, in accordance with the requirements of ORS 293.462(3), at the rate of two-thirds of one percent per month beginning from the date first due until paid in full. In compliance with ORS chapter 295, as described below in Section 11.5, Contractor shall deposit all funds Contractor collects from OReGO Participants daily into an Agency-approved account maintained at an Oregon State Treasurer approved depository bank.

Contractor’s Personnel.

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

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

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

Independent Contractor; Responsibility For Taxes And Withholding Independent Contractor. Contractor shall perform all Services as an independent contractor. Agency reserves the right (i) to determine and modify the delivery schedule for the Services and (ii) to evaluate the quality of the Services; however, Agency may not and will not control the means or manner of Contractor's performance. Contractor is responsible for determining the appropriate means and manner of performing the Services.

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

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

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

Subcontracts, Successors, And Assignments Contractor shall not enter into any subcontracts for any of the Services required by this Price Agreement or any WOC issued under this Price Agreement, or in any manner assign, sell or transfer any of its rights or interest under this Price Agreement or any WOC issued under this Price Agreement, or delegate any of its duties or performance under this Price Agreement or any WOC issued under this Price Agreement, without Agency's prior written consent, which consent will not be unreasonably withheld or delayed. Agency may require, as a condition of Agency’s consideration of any request for consent to an assignment, that Contractor provide ODOT information concerning the structure of the assignment arrangements and the integrity and financial reliability of the proposed assignee that is adequate, in Agency’s judgment, to demonstrate the capability and financial reliability of the proposed assignee to faithfully perform the assigned functions and to maintain the security of the financial transactions, and the security of the OReGO participants’ personally identifiable information (“PII”) as required under ORS 319.915, as contemplated by this Price Agreement and any WOC issued under this Price Agreement. In addition to any other provisions Agency may require, Contractor shall include, in any permitted subcontract under this Price Agreement and any WOC issued under this Price Agreement, contractual provisions that shall require any subcontractor (which may also be referred to as “subconsultant”) to comply with, Sections 8, 9, 10, 11, 12, 21, 22.1, 22.2 and 22.5 of these WOC provisions and the limitations provided in Exhibit F, Compensation, in the performance of the subcontractor’s Services on the project that is the subject of a WOC, as if the subcontractor were Contractor. Agency’s consent to any subcontract shall not relieve Contractor of any of its duties or obligations under this Price Agreement or any WOC issued under this Price Agreement, including with respect to any Services, whether performed or to be performed by Contractor or a subcontractor.

The provisions of the WOC shall be binding upon and shall inure to the benefit of the Parties hereto, and their respective successors and permitted assigns, if any.

Any purported assignment, delegation or disposition in violation of Section 7.1 above is void.

Representations and Warranties.

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

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

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

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

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

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

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

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

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

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

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

Contractor’s Performance Warranties.

1.1.9. Contractor’s Representations and Warranties. Contractor represents and warrants to Agency, for this Price Agreement and the WOCs, that (i) the Services under the WOC will be performed in accordance with the professional standard of care set forth in Section 9 below; and (ii) Contractor is an experienced firm having the skill, legal capacity, professional ability and resources necessary to perform all the Services required under the WOC;

1.1.10. Software Warranties. Contractor represents and warrants to Agency, for this Price Agreement and the WOCs, that:

1.1.10.1. The Services and all deliverables supplied by Contractor to Agency, shall materially conform to all specifications and requirements set forth in the WOC, including the Statement of Work, WOC Attachments, and any documentation provided by Contractor, shall be free from error or defect that materially impairs their use, and shall be free from material defects in materials, workmanship and design.

1.1.10.2. Except as otherwise provided in this Price Agreement or WOC, all Work Product supplied by Contractor to Agency shall be transferred to Agency free and clear of any and all restrictions on or conditions of transfer, modification, licensing, sublicensing, direct or indirect distribution, or assignment, and free and clear of any and all liens, claims, mortgages, security interests, liabilities, and encumbrances of any kind.

1.1.10.3. When used as authorized by this Price Agreement or WOC, no deliverable delivered by Contractor to Agency infringes, nor will Agency’s use, duplication, or transfer of such deliverables infringe, any copyright, patent, trade secret, or other proprietary right of any third party.

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

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

1.1.11. Warranties; Disclaimer; Limitation of Liability. Except as set forth below, the warranties set forth in this Section are in addition to, and not in lieu of, any other warranties set forth elsewhere in this Price Agreement. In respect to software provided as part of the Services, the warranties set forth in this Section 8 are exclusive and in lieu of all other warranties, whether express or implied, and Contractor expressly disclaims all other warranties, including any implied warranties of merchantability or fitness for a particular purpose, and further, Contractor does not warrant that Agency’s use of the software will be uninterrupted or error free. EXCEPT AS EXPRESSLY PROVIDED IN THIS PRICE AGREEMENT, NEITHER PARTY SHALL BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS, OR OTHER CONSEQUENTIAL OR INCIDENTAL DAMAGES, EVEN IF THAT PARTY IS INFORMED THAT THOSE DAMAGES MAY OCCUR. THE PARTIES AGREE THAT THE COSTS OF IDENTIFYING, INVOICING AND COLLECTING ROAD USE CHARGES, DUE TO THE FAILURE OR SUSPENSION OF THE OPERATION OF THE SOFTWARE SYSTEM, ARE DIRECT DAMAGES.

Contractor and Agency shall cooperate to recover those charges that reasonably can be detected and calculated after correction or reinstitution of the operation of the software on which the identification and calculation of the charges are dependent, and adjust Road Use Charges and Contractor’s compensation in accordance with the recovered amounts.

1.1.12. FOR THE PURPOSES OF THE FOREGOING LIMITATIONS, THE EXCLUSION OF CONTRACTOR’S LIABILITY FOR LOST PROFITS, LOST SAVINGS, LOST DATA, AND CONSEQUENTIAL OR INCIDENTAL DAMAGES DOES NOT APPLY TO OREGO CHARGES THE COLLECTION OF WHICH IS PREVENTED, FOREGONE, OR DELAYED AS A RESULT OF OR ARISING OUT OF CONTRACTOR’S VIOLATION OF THIS PRICE AGREEMENT, ANY WOC ISSUED UNDER THIS PRICE AGREEMENT, ANY SERVICE LEVEL AGREEMENT (“SLA”) THAT IS INCORPORATED INTO THIS PRICE AGREEMENT, OR ANY STATEMENT OF WORK.

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

Professional Standard of Care; Responsibility of Contractor.

Professional Standard of Care. Contractor shall provide all Goods and Services under this Price Agreement and any WOC issued under this Price Agreement in accordance with the highest standards of skill, care and diligence prevalent in Contractor’s industry, trade or profession.

Responsibility of Contractor.

1.1.13. Contractor shall be responsible for the professional quality (and technical accuracy, when applicable) of all Goods and Services furnished by Contractor under the WOC. For the duration of any period in which such Goods or Services are utilized by Agency consistent with this Price Agreement or with a WOC issued under this Price Agreement, Contractor shall remain obligated to remedy defects or deficiencies in the Goods or Services (as determined by reference to the performance standards established for the Goods or Services in this Price Agreement or the WOC that applies to the delivery of the particular Goods or Services). For avoidance of doubt, as used herein “defects or deficiencies” does not include failures due to ordinary wear and tear on Goods. For the duration of the period under which such Goods or Services are utilized by Agency pursuant to a WOC or WOCs the term of which ends after the term of the WOC under which such Goods or Services were delivered, Contractor shall maintain, repair, and update the Goods or Services in accordance with a WOC issued separately for such purpose.

1.1.14. Agency’s review, approval or acceptance of, or payment for, the Services and deliverables required under the WOC shall not be construed to operate as a waiver of any rights under the WOC or of any cause of action arising out of the performance of the WOC, and Contractor shall be and shall remain liable to Agency in accordance with applicable law for all damages to Agency caused by Contractor’s negligent or otherwise wrongful performance of any of the Services furnished under the WOC or negligent or otherwise wrongful failure to perform any part or all of the Services under the WOC.

1.1.15. The rights and remedies of Agency provided for under the WOC are in addition to any other rights and remedies provided by law.

1.1.16. If Contractor is comprised of more than one legal entity (for example, a joint-venture or partnership), each such entity shall be jointly and severally liable under the WOC.

Ownership of Work Product.

Definitions. The following terms have the meanings set forth below:

“Contractor Intellectual Property” means any intellectual property owned by Contractor which may be contained in or necessary for the use of the deliverables or services provided under the WOC. Contractor Intellectual Property includes commercial-off-the-shelf software or software-as-a-service owned by Contractor, documentation, and derivative works and compilations of any Contractor Intellectual Property.

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

“Work Product” means every invention, discovery, work of authorship, trade secret or other tangible or intangible item, and all intellectual property rights therein, that Contractor is expressly required to create for delivery to Agency pursuant to the WOC. Notwithstanding anything in the immediately preceding sentence to the contrary, Work Product does not include any Contractor Intellectual Property or Third Party Intellectual Property.

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

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

Work Product. Except as is set forth in section 10.5., below, Contractor owns all Work Product. Contractor grants Agency a non-exclusive, irrevocable, royalty-free, universal license to use, copy, display, distribute, and transmit Work Product and to authorize others to do the same on Agency’s behalf.

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

Agency Intellectual Property; Data and Background Information. Agency owns all Agency Intellectual Property and Agency data, Agency Standards Documents, Agency marks, and background information provided to Contractor pursuant to this Agreement. Neither Party owns the rights in the data from Participants, though such data remains subject to confidentiality provisions herein and in ORSs. Agency owns all Agency Standards Documents set forth in Exhibit A, Scope of Services. Agency grants Contractor a non-exclusive, royalty-free, universal license to use, copy, display, distribute, transmit and prepare derivative works of Agency Intellectual Property and Agency data and background information only to fulfill the purposes of this Price Agreement. Agency’s license to Contractor is limited to the duration of this Price Agreement and the confidentiality obligations of this Price Agreement. Agency owns, including rights to use, distribute, update, modify, produce derivative works based on, and otherwise support any Deliverable expressly identified as Agency Intellectual Property in a WOC. Agency is solely responsible for the content, the quality, integrity, and fitness of Agency Intellectual Property. Any liability of Agency under this provision is subject to the limitations of Article XI, section 7 of the Oregon Constitution and the Oregon Tort Claims Act, ORS 30.260 through 30.300.

Contractor Use of Work Product. Notwithstanding anything to the contrary in this Section 10, Contractor may refer to the Work Product in its brochures or other literature that Contractor utilizes for advertising purposes and, unless specified otherwise in the WOC, Agency hereby grants to Contractor a non-exclusive, non-transferable, royalty-free, perpetual license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display Agency-owned Work Product on other unrelated projects, except for any “Confidential Information” protected from disclosure under the provisions of Section 8 below, pertaining to Confidentiality and Non-Disclosure.

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

Marks. Neither party grants the other the right to use its trademarks, trade names, service marks or other designations in any promotion or publication without prior written consent. Each party grants only the licenses and rights specified in this Price Agreement.

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

Confidential Information.

Confidential Information. Each Party acknowledges that it and its employees and agents may, in the course of performing their responsibilities under the WOC, be exposed to or acquire information that is confidential to the other Party. Any and all information that a Party (the “Discloser”)provides to the other Party (the “Recipient”) or its employees or agents in the performance of the WOC that the Discloser designates as confidential (either on the document itself or through related correspondence), as well as all reports and other documents and materials (including software) that result from the Recipient’s use of such information and any other Work Product that the Discloser designates as confidential, is deemed to be confidential information of the Discloser (“Confidential Information”). Confidential Information does not include information that (i) is or becomes (other than by disclosure by Contractor) publicly known; (ii) is furnished by the Discloser to others without restrictions similar to those imposed by the WOC; (iii) is rightfully in the Recipient’s possession without the obligation of nondisclosure prior to the time of its disclosure under the WOC; (iv) is obtained from a source other than the Discloser without the obligation of confidentiality, (v) is disclosed with the written consent of the Discloser, or; (vi) is independently developed by employees or agents of the Recipient who can be shown to have had no access to the Confidential Information.

Non-Disclosure. The Recipient agrees to hold Confidential Information in strict confidence, using at least the same degree of care that the Recipient uses in maintaining the confidentiality of its own confidential information, and shall not, without the Discloser’s prior written consent, copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information to third parties, or use Confidential Information for any purposes whatsoever, other than the provision of Services to the Discloser hereunder. The Recipient shall advise each of its employees and agents of their obligations to keep Confidential Information confidential. The Recipient shall use reasonable efforts to assist the Discloser in identifying and preventing any unauthorized use or disclosure of any Confidential Information. The Recipient shall advise the Discloser immediately if the Recipient 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 Section 11.2, and the Recipient shall, at its expense, cooperate with the Discloser in seeking injunctive or other equitable relief in the name of the Discloser against any such person. The Recipient agrees that, except as directed by the Discloser, the Recipient will not at any time during or after the term of the WOC disclose, directly or indirectly, any Confidential Information to any person, except in accordance with the WOC, and that upon termination of the WOC or at the Discloser’s request, the Recipient shall turn over to the Discloser all documents, papers, and other matter in the Recipient’s possession that embody Confidential Information. In the event the Recipient is required to disclose Confidential Information pursuant to a subpoena or other legal process, the Recipient shall notify the Discloser of such subpoena or other legal process, provide the Discloser with copies of any subpoena, other legal process and any other written materials supporting the subpoena or other legal process, and otherwise cooperate with the Discloser in the event the Discloser decides to oppose the disclosure of the Confidential Information. In the event the Discloser decides not to oppose such subpoena or other legal process or the Discloser’s decision to oppose the subpoena or legal process has not been successful, the Recipient shall be excused from the confidentiality provisions of this Section, to the extent necessary to meet the requirements of the subpoena or other legal process controlling the required disclosure. Agency’s obligation under this Agreement to maintain the confidentiality is conditioned by and subject to Agency’s obligations under the Oregon Public Records Law, ORS 192.410 to 192.505, which may require disclosure of proprietary information as a “public record” unless exempt under ORS 192.501 or ORS 192.502. In the event Agency is served with a request for disclosure of confidential information of Contractor pursuant to the Oregon Public Records Law, Agency shall provide due diligence to notify Contractor with reasonably sufficient time to allow Contractor to object to such disclosure or to seek a court order to prevent it.

Protected Information. In the performance of the Price Agreement or WOC, Contractor may have possession or access to documents, records or items that contain “Personally Identifiable Information” (“PII”) as that term is used in ORS 319.883 to 319.945 or “Personal Information” as that term is used in the Oregon Consumer Information Protection Act ORS 646A.602(11), including Social Security numbers. PII and Personal Information are both types of Confidential Information that are highly sensitive and subject to additional protection. Therefore, prior to the receipt of, and during the period in which Contractor has possession of or access to, any PII or Personal Information, Contractor shall have in place, a formal written information security program that provides safeguards to protect PII and Personal Information from loss, theft, and disclosure to unauthorized persons, as required by ORS 319.883 to 319.945 and by the Oregon Consumer Information Protection Act, ORS 646A.600 to 646A.628. Contractor shall submit a copy of the written information security program to Agency within 90 calendar days after the execution of this Price Agreement. Nothing in this subsection 11.3. shall be construed as imposing any obligation or liability to third parties that exceeds those obligations and responsibilities imposed by ORS 319.915 and the Oregon Consumer Identity Theft Protection Act.

In addition to and without limiting the generality of the previous paragraph, and subject to ORS 319.915, Contractor shall not breach and shall use reasonable professional care, including compliance with all applicable laws and regulations and with Agency’s and Contractor’s own data security policies and programs, to prevent third parties from breaching the security of any PII or Personal Information that is contained in any document, record, compilation of information or other item to which Contractor receives access, possession, custody or control under this Price Agreement or under any WOC issued under this Price Agreement. Contractor shall not willfully, intentionally, or negligently disclose, and shall use reasonable professional care as described hereinabove to prevent access of any nature, by any unauthorized person, to any such PII or Personal Information. Contractor shall not willfully, intentionally, or negligently disclose, or otherwise permit access of any nature, to any unauthorized person, of any such PII except as provided in ORS 319.915. Contractor shall not use, distribute or dispose of any PII or Personal Information other than as expressly permitted by Agency, required by applicable law, or required by an order of a tribunal having competent jurisdiction.

Contractor shall report to Agency, as promptly as possible, any breach of security, use, disclosure, theft, loss, or other unauthorized access of any document, record, compilation of information or other item that contains PII or Personal Information to which Contractor receives access, possession, custody or control in the performance of this Agreement or WOC.

Contractor shall ensure the compliance of its employees and agents with this Section.

1.1.17. As stated above, and not in limitation of the foregoing provisions in this section, Contractor shall maintain the security and confidentiality of all PII. Contractor shall not willfully, knowingly, or negligently disclose any PII to any person except:

1.1.17.1. The registered owner of a subject vehicle or a subject vehicle’s lessee (“Participant”);

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

1.1.17.3. Agency employees who are involved in the administration of the OReGO;

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

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

1.1.17.6. An entity expressly approved in writing, by the Participant, to receive the PII information; or

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

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

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

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

1.1.19. Contractor may retain records of the location and daily metered use of subject vehicles if the Participant consents to retention.

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

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

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

1.1.22.1. Contractor may only disclose PII used or developed for reporting metered use for to entities expressly approved to receive this information by the Participant.

1.1.23. Contractor’s violation of any material provision of this subsection 11.3. shall constitute a material breach of this Price Agreement and unless such violation is cured within a reasonable amount of time following breach, shall entitle Agency to terminate this Price Agreement and any WOC issued under this Price Agreement and to pursue any damages sustained by Agency or the State Highway Fund as a result of the breach, as a result of the termination, or both.

1.1.24. Contractor’s violation of any material provision of this subsection 11.3. unless such violation is cured within a reasonable amount of time following breach, shall entitle Agency to recover all damages, losses or expenses Agency or the State Highway Fund sustains that arise out of the violation, including but not limited to:

1.1.24.1. All costs and expenses incurred by Agency or the State Highway Fund in identifying the Participant whose PII or Personal Information was disclosed or otherwise may have been compromised by any violation of this subsection 11.3., of ORS 319.915, or by the violation or breach of any protections, procedures, or protocols established in this Price Agreement to protect the confidentiality of the PII or Personal Information.

1.1.24.2. All costs and expenses incurred by Agency or the State Highway Fund in notifying the Participant whose PII or Personal Information was disclosed or otherwise may have been compromised by any violation of this subsection 11.3, of ORS 319.915, or by the violation or breach of any protections, procedures, or protocols established in this Price Agreement to protect the confidentiality of the PII or Personal Information.

1.1.24.3. All costs and expenses incurred by Agency or the State Highway Fund, including court costs, expert witness and consultant fees, and reasonable attorney fees, in pursuing any proceeding to halt or enjoin the unauthorized use or disclosure of any PII or Personal Information that was disclosed or otherwise may have been compromised by any violation of this subsection 11.3., of ORS 319.915, or by the violation or breach of any protections, procedures, or protocols established in this Price Agreement to protect the confidentiality of the PII and Personal Information.

1.1.25. Nothing in this subsection 11.3 shall excuse Contractor from any obligation to identify and notify any Participant whose PII or Personal Information was disclosed or otherwise may have been compromised by any violation of this subsection 11.3., of ORS 319.915, or by the violation or breach of any protections, procedures, or protocols established in this Price Agreement to protect the confidentiality of the PII or Personal Information.

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

1.1.27. Contractor shall ensure that its officers, employees and agents comply with this subsection 11.3. Contractor shall expressly include, in any subcontract Contractor establishes in connection with this Price Agreement, provisions that bind the subcontractor to comply with this subsection.

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

1.1.29. Contractor acknowledges that violation of this subsection 11.3, including any unauthorized disclosure of any PII or any Personal Information, will give rise to irreparable injury to Agency and any affected Participant that cannot adequately be compensated in damages. Accordingly, Agency and registered owners of subject vehicles or subject vehicles’ lessees may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available. Contractor acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of Agency, registered owners of subject vehicles, and subject vehicles’ lessees, and are reasonable in scope and content.

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

Security Policies. Contractor at all times shall comply with Agency’s security policies. Security Policies include but are not limited to: The federal Automobile Information Disclosure Act, ORS…