5906 ATTACHMENT A~1.docx

STATE OF OREGON

INFORMATION TECHNOLOGY SERVICES CONTRACT

(System Acquisition) This Information Technology Consulting Services Contract (Contract) is entered into by and between the State of Oregon (State) acting by and through its Oregon Health Authority (Agency), and_____, an __________ corporation (Contractor) and is effective as of the Effective Date (defined below).

RECITALS

Agency desires to engage a Contractor to provide data visualization application through RShiny software (the “Solution” as defined below) to enable Agency to achieve specific business and Agency mission objectives defined in this Contract, including professional services and knowledge transfer for the project known as RSHINY Data Visualization Application. To that end, Agency issued a Request for Proposal (RFP), OHA number 5906.

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

Contractor desires to perform the Services for Agency.

AGREEMENT

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

1. DEFINITIONS.

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

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

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

“Agency Data” means information created and information stored by Agency or Contractor on behalf of Agency through the Services. Agency Data is Confidential Information.

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

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

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

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

“Calendar Days” means contiguous days.

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

“Confidential Information” is defined in Section 9.1.

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

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

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

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

“Defect” means a reproducible failure of the Solution to operate in accordance with the Requirements in Exhibit L, specifications under a Statement of Work, or as required under a Service Level Agreement, despite the proper use of the Solution. A Defect may be due to a Data Error, or a problem with the Solution, Documentation, or both. Prior to Final Acceptance, a Defect may be due to a missed, missing, or misinterpreted Requirement.

Defect Levels will fall into one of the following categories:

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

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

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

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

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

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

“Documentation” means all documents, including documents that are Deliverables described in a Statement of Work, and which may include reports, minutes, manuals, training materials, operator’s and user manuals, guides, commentary, listings, requirements documentation, and other materials that are to be delivered by Contractor under this Contract and for use in conjunction with and for the operation of the Solution. Documentation includes documents in hard copy or electronic form.

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

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

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

“Final Acceptance” criteria are in Section 3.4.

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

“Help Desk Support” means all necessary activities to assist the users to use the Solution effectively and efficiently. Agency will provide Tier 1 Help Desk Support as defined below. Proposer shall provide Tier 2 and 3 Help Desk Support as defined below.

Tier 1 Support – Agency Help Desk response to incidents, with resolution of incidents that can be resolved by the Agency Help Desk (e.g. password resets, permissions settings, user provisioning) and Tier 2 assignment of those incidents that need further analysis.

Tier 2 Support – Analysis of escalated incidents to Contractor resources that have some technical or functional knowledge of the system. Examples of incidents that may be resolved by Tier 2 analysis, include data fixes or process issues.

Tier 3 Support – incidents leading to Solution changes that need to be incorporated into a Release. The established Agency Change Management process must be followed.

“Intellectual Property Rights” is defined in Section 12.2.

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

“Knowledge Transfer” means activities designed to impart detailed information from Contractor to Agency about the Solution. Knowledge Transfer goes beyond formalized training and Documentation to include Contractor ensuring that Agency can support the enhancements, operations and maintenance of the Solution. Knowledge Transfer includes Agency staff and other resources being integrated into Contractor’s work activities and being an integral part of identifying and resolving issues. Knowledge Transfer activities include ‘online work sessions’ training, which is informal training with the specific intent of developing skills or knowledge working side by side with Contractor.

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

“Milestone” means the completion date for a specific group of Tasks or Deliverables identified as a Milestone in a Statement of Work.

“Personal Information” is defined in Exhibit J.

“Production Environment” means the logical group of virtual or physical resources that is a permanent environment established for the daily business use and maintenance of the Solution in a live environment.

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

“Requirements” are the functions and elements required for the Solution. Requirements are in Exhibit L, and will be managed via Deliverables identified in an applicable Statement of Work.

“RFP” means the Request for Proposal #5906.

“Rollout” means the Milestone date identified in a Statement of Work, Change Order, or applicable Accepted Deliverable, on which the Solution will be available for Agency and its users in a Production Environment for the processing of transactions in accordance with Requirements and the Service Level Agreement. A Rollout date may be associated with a specific phase or enhancement under a Statement of Work, or a Change Order.

“Schedule of Deliverables” means the attributes of a Statement of Work that describe each Task, Deliverable, measurable attributes of each Deliverable and Milestone with identification of the Services that are associated with them, and a completion date for each Milestone and Deliverable. As an example, the Schedule of Deliverables includes the current, Accepted Project Management Plan and Schedule.

“Service Level Agreement” or “SLA” means an agreement that defines specific elements of the Services or performance guarantees for the Solution, periods of time during which performance will be measured, measurable conditions for determining successful completion or performance, and consequences for not meeting the SLA. The SLA may contain conditions for starting, stopping, and pausing the measurement of the relevant time period. SLAs are in Exhibit B.

“Services” means all effort to be expended by Contractor under the Contract, including advice and expertise, and development and delivery of Deliverables.

“Software” is an all-inclusive term meaning any computer programs, routines, or subroutines supplied by Contractor, including operating software, programming aids, application programs, and software programs.

“State” means the State of Oregon.

“Statement of Work” or “SOW” means a document that describes the Services to be provided by Contractor, including the Tasks, Deliverables and Milestones, Documentation, Work Product, the attributes of each Deliverable, identification of the Deliverables and Services that are associated with each Task, 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 as a Statement of Work, including as amended pursuant to Section 7. As used in this Contract, except where otherwise expressly identified as being applicable only to a specific Statement of Work, a reference to “Exhibit A,” “SOW” or “Statement of Work” means the applicable Exhibit A (e.g., Exhibit A-1, Exhibit A-2, etc.) individually. A Statement of Work includes Accepted Deliverables, if specifically agreed upon in a Statement of Work.

“Solution” means the sum of the Services, including Software, Work Product, Deliverables, intellectual property, and Documentation described in a Statement of Work that comprises the system, functionality, and operations that Contractor will deliver under this Contract.

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

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

“Warranty Period” means one of the time periods specified in Section 3.7.

“Work Product” means everything that is specifically made, conceived, discovered, or reduced to practice by Contractor or Contractor’s subcontractors or agents (either alone or with others) pursuant to the Contract, including every invention, modification, discovery, design, development, customization, configuration, improvement, process, software program, work of authorship, documentation, formula, datum, technique, know how, secret, or intellectual property right whatsoever or any interest therein (whether patentable or not patentable or registerable under copyright or similar statutes or subject to analogous protection). Notwithstanding anything in the immediately preceding sentence to the contrary, Work Product is not Agency Intellectual Property, Contractor Intellectual Property, or Third Party Intellectual Property.

2. TERM.

The Effective Date of this Contract is the date on which this Contract is fully executed and approved according to applicable laws, rules and regulations. This Contract terminates 2 years after the Effective Date, unless otherwise terminated or extended in accordance with its terms.

3. SCOPE OF SERVICES.

3.1. Performance and Delivery.

3.1.1. Responsibilities of Contractor. Contractor shall perform the Services as set forth in each Statement of Work, in accordance with the applicable current, Accepted Project Implementation Plan and Schedule and the standards and methodologies set forth in the Statement of Work and elsewhere in this Contract, including the Service Level Agreements and Performance Standards. Contractor shall perform the Services:

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

3.1.1.2. In compliance with information technology standards established by Enterprise Information Services (EIS), found at: https://www.oregon.gov/das/Pages/policies.aspx, which may be updated from time to time.

3.1.2. Contractor shall cooperate with Agency and its designated third party contractors by providing access and information on Contractor’s Services (such as architecture, design, operating environment, security, interfaces, and operating parameters) as required for all oversight activities and Agency-identified third party services.

3.1.3. If Agency elects to have Contractor provide hardware, Contractor shall deliver any hardware to Agency, F.O.B. destination, to the destination specified by Agency, and according to the delivery schedule approved by Agency. Title for the hardware will pass to State for each piece of hardware on the date of Final Acceptance. During the period that hardware is in transit, and until the hardware is tendered to enable Agency to take delivery of the hardware, Contractor and its insurers, if any, relieve Agency and State of the responsibility for all risk of loss of, or damage to, the hardware. Thereafter, all risk of loss of, or damage to, the hardware will be borne by Agency.

3.2. Responsibilities of Agency. If a Statement of Work requires Agency to provide any resources, and Agency fails to provide the requisite quality or quantity of such resources, or fails to provide such resources in a timely manner for a period that does not exceed thirty (30) Calendar Days, Contractor’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) Calendar Days, and Contractor can show to the reasonable satisfaction of Agency that Agency’s failure has resulted in an unavoidable increase in the cost of the Services required for the Statement of Work, then Contractor will be entitled to recover from Agency the reasonable amount of such increased costs. Contractor’s right to delay applicable delivery dates or recover for increased costs may be exercised only if Contractor provides Agency with reasonable notice of Agency’s failure and Contractor uses commercially reasonable efforts to perform notwithstanding Agency’s failure to perform.

3.3. Delivery and Review of Deliverables.

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

3.3.2. Contractor 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 Contract. Acceptance Criteria includes all requirements for a Deliverable and associated Services described in the applicable Statement of Work, and the Performance Warranties in Section 11.2. With respect to any Deliverables that are susceptible to Acceptance Testing, Agency will conduct Acceptance Testing as set forth in Section 3.4. If Agency determines that the Deliverable meets, in all material respects, Acceptance Criteria, Agency will notify Contractor of Agency’s Acceptance in writing.

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

3.4. Acceptance Testing.

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

3.4.1. Solution Testing. Contractor shall install and test the Solution in the Test Environment in accordance with Exhibit A, by using it in off-line processing of test data in order to determine if the Solution is in material conformance with Requirements set forth in Exhibit L, and in Deliverable __Functional Design Document, and Deliverable __, Technical Design Document, as those Deliverables are Accepted at the time of testing under this section. If Level 1, Level 2, or Level 3 Defects are discovered in the Solution, Contractor shall correct such Defects and retest at no additional charge to Agency prior to completion of System Testing under this section. Contractor shall resolve Level 4 Defects at no additional charge to Agency within Agency-approved timeframes.

3.4.2. User Acceptance Testing (UAT). Following Agency’s Acceptance of the final Deliverable __, Test Completion Report, an updated Requirements Traceability Matrix with test case tracking, and the correction of all known Level 1, Level 2, and Level 3 Defects discovered prior to UAT, Agency will test the remaining Deliverables for the Solution by using it in off-line processing using both test data and Agency’s converted operational data in order to determine if the Solution is in material conformance with Requirements set forth in Exhibit L, and in Deliverable __, Functional Design Document, and Deliverable __, Technical Design Document, as those Deliverables are Accepted at the time of testing under this section. Contractor shall deliver UAT Services in accordance with the UAT Task in Exhibit A. Agency will notify Contractor in writing of each Defect discovered during UAT in accordance with the Accepted User Acceptance Test Plan, and specify its level. Contractor shall correct all Level 1, Level 2, and Level 3 Defects identified during UAT at no additional charge to Agency, and resubmit the corrected Solution to Agency for retesting within ten (10) Business Days of a written notice of Defect. All such retesting will be done on an iterative basis and be completed by Agency no later than ten (10) Business Days after Contractor submission of the corrected Solution. Contractor shall correct all Level 1 Defects, Level 2 Defects, and Level 3 Defects prior to completion of UAT activities under this section. Contractor shall resolve Level 4 Defects discovered during UAT at no additional charge to Agency within Agency-approved timeframes.

3.5. Stabilization Period. Upon completion of Rollout, Agency will use the Solution for processing of Data in a live Production Environment for a period of 90 (ninety) Calendar Days (Stabilization Period) to determine if the Solution is stable, complete, and operating correctly.

3.5.1. If Defect(s) are discovered during the Stabilization Period, Agency will notify Contractor of the Defect in writing as soon as practical, describing the Defect and specifying its level. Upon receipt of such written notice, Contractor shall correct any Level 1 Defect within four (4) consecutive hours, any Level 2 Defect within twenty four (24) consecutive hours, and any Level 3 Defect within three (3) Business Days from the time of the written notice, and submit the corrected Solution to Agency for validation in accordance with this Section, at no additional charge to Agency. All such validation will be completed by Agency no later than five (5) Business Days after Contractor submission of the corrected Solution or as otherwise agreed upon by the parties.

3.5.2. At the end of the Stabilization Period, if any Level 1, Level 2, or Level 3 Defects discovered during the Acceptance Period remain uncorrected, Agency will grant Contractor one additional five (5) Business Day period from the end of the Stabilization Period to correct such Defects. If the Defects are not corrected during that period, unless Agency in its discretion allows additional time for correction, Agency may declare a material breach of this Contract by Contractor.

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

3.5.4. Completion of this Stabilization Period will mark the end of implementation under the Statement of Work.

3.6. Final Acceptance. Final Acceptance will occur when the following events have occurred or conditions exist:

3.6.1. Agency has notified Contractor that the Solution meets all Acceptance Criteria and all Acceptance Tests required pursuant to Section 3.4 have been successfully completed including as specified in the applicable Statement of Work;

3.6.2. The Solution is stable, complete, and operating correctly as specified in the applicable Statement of Work, without Level 1, Level 2, or Level 3 Defects;

3.6.3. All Documentation is complete, inventoried, and Accepted by Agency. Contractor shall provide all text Documentation in an electronic format as specified in the applicable Statement of Work;

3.6.4. All Software, configuration data, and system configuration information is complete, and are stored and controlled under a configuration management system as specified in the applicable Statement of Work;

3.6.5. Contractor has delivered all source code and Documentation in accordance with the terms of this Contract, including the applicable Statement of Work;

3.6.6. Contractor has reconciled all Requirements against the delivered, tested Solution to ensure Contractor has clearly and transparently met each Requirement.

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

3.6.8. Contractor has completed and Agency has Accepted Deliverables for User Training and Technical Training as specified in the applicable Statement of Work.

3.7. Warranty Period.

3.7.1. Post-Implementation Warranty Period. Contractor shall warrant the initial implementation of the Solution Accepted under the Statement of Work for a period of three hundred and sixty-five (365) Calendar Days following Final Acceptance. During the Post-Implementation Warranty Period, Contractor shall, at no additional charge to Agency, furnish such materials and Services necessary to correct any Defects in the Solution that prevent the Solution from meeting the Acceptance Criteria and Contract warranties. Contractor shall cure Defects discovered during the Post-Implementation Warranty Period that prevent the Solution from meeting the Acceptance Criteria and Contract warranties.

3.7.2. Solution Change Warranty Period. Contractor shall warrant Solution changes that modify or enhance the Solution Accepted at Final Acceptance, and that are not Defect corrections, for a period of ninety (90) Calendar Days following Acceptance of the implemented change. Contractor shall, at no additional charge to Agency, furnish such materials and Services necessary to correct any Defects relating to the Solution change that prevent the Solution from meeting the Acceptance Criteria and Contract warranties. Contractor shall cure Defects discovered during the Solution Change Warranty Period that prevent the Solution from meeting the Acceptance Criteria and Contract warranties.

3.8. Performance Standards and Service Level Agreements.

3.8.1. Contractor agrees to meet the performance standards and Service Level Agreements established in Exhibit A, Statement of Work, and in Exhibit B, Service Level Agreements and Performance Standards, during the Contract term.

3.8.2. Failure to Perform.

3.8.2.1. If Contractor fails to meet a performance standard, such as a Service Level Agreement, Contractor shall: (i) investigate, assemble and preserve pertinent information with respect to, and report on the causes of, the problem, including performing a root cause analysis of the failure; (ii) advise Agency, as and to the extent requested by Agency, of the status of remedial efforts being undertaken with respect to such failure; (iii) minimize the impact of and correct the problem and begin meeting the performance standard; and (iv) take appropriate preventive measures so that the failure does not recur.

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

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

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

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

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

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

3.9.2. If during the Transition Period Contractor believes Agency is not in compliance with the foregoing conditions, Contractor shall give Agency written notice of such noncompliance and Agency will have fifteen (15) Business Days, or such longer period to which the parties may agree, to correct the noncompliance before Contractor may end the Transition Period and move to the Wind-Down Phase described below.

3.9.3. Following receipt of the notice of termination (whether or not Contractor or Agency initiated the termination), Contractor shall not, without Agency’s prior written consent, which will not be unreasonably withheld, transfer, reassign, or otherwise redeploy any of Contractor’s personnel from providing Services under this Contract.

3.9.4. Transition Plan. Contractor and Agency will outline a Transition Plan, which may be requested pursuant to a notice of termination or in anticipation of the Contract terminating in accordance with its terms. The Transition Plan may serve as an update to or a confirmation of a Transition Services Task in the Statement of Work. Contractor shall deliver a detailed Transition Plan within fourteen (14) Calendar Days of Agency’s written request, or otherwise within a timeframe agreed upon by the parties, for Agency review. The Transition Plan will not be effective until it is approved by DOJ. This plan will determine the nature and extent of Contractor’s Transition Services obligations and detail the transfer of Services, but must not reduce Contractor’s obligation under this Contract to provide all Services necessary for Transition. The Transition Period will commence on the start date set in the DOJ-approved Transition Plan; provided, however, if Contractor does not deliver an acceptable Transition Plan on or before the Contract termination date, then the parties will abide by a draft of the plan promulgated by Agency until the Transition Plan is approved by DOJ. The Transition Plan must address at least:

3.9.4.1. The respective Tasks and Deliverables to be completed by each party under the Transition Plan,

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

3.9.4.3. 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 Contract Maximum Not-To-Exceed Compensation. If the parties agree Transition Services require new or additional Services that cause an increase in the Contract Maximum Not-To-Exceed Compensation, the Transition Plan will be in the form of a Contract amendment.

3.9.5. 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 under the DOJ-approved Transition Plan. If the Transition Period extends beyond the Contract term, the provisions of this Contract will remain in effect for the duration of the Transition Period.

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

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

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

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

3.9.7.3. Promptly and orderly conclude all Services as Agency may direct. This includes the documentation of work in progress, return of property under Section 16.6, and other measures to provide an orderly transition to Agency and any Agency-designated provider.

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

4. CONTRACTOR’S PERSONNEL.

4.1. Key Persons. Contractor acknowledges and agrees that Agency selected Contractor, and is entering into this Contract, because of the special qualifications of Contractor’s Key Persons identified in Exhibit E. Contractor’s Key Persons shall not delegate performance of their powers and responsibilities they are required to provide under this Contract to another Contractor employee(s) without first obtaining the written consent of Agency. Further, Contractor shall not re-assign or transfer a Key Persons to other duties or positions such that the Key Person is no longer available to provide Agency with the required expertise, experience, judgment, and personal attention, without first obtaining Agency’s written consent to such re-assignment or transfer, which Agency will not unreasonably withhold or delay. Notwithstanding the foregoing, Contractor may replace Key Persons without Agency’s consent in the event any Key Persons are no longer available due to circumstances beyond Contractor’s reasonable control, such as death, illness, or termination of employment with Contractor. In the event Contractor requests that Agency approve a re-assignment or transfer of the Key Persons, or if Contractor must replace Key Persons, Agency may interview, review the qualifications of, and approve or reject the proposed replacement(s) for the Key Persons. Any such replacement must have substantially equivalent or better qualifications than the Key Person being replaced. Any replacement personnel approved by Agency will thereafter be deemed a Key Person for purposes of this Contract and Exhibit E deemed amended to include such Key Person. Agency reserves the right to determine if a replacement Key Person has acquired the project knowledge and skills necessary to perform within the twenty-eight (28) Calendar Day period following Agency approval of the replacement Key Person.

4.1.1. Contractor shall not charge Agency, and Agency will not pay, for a replacement Key Person while such replacement acquires the project knowledge and skills necessary to perform the Services. Such period of non-charge will be agreed upon by the parties, and will last for a minimum of fourteen (14) Calendar Days but not more than twenty-eight (28) Calendar Days, and will be reflected as an adjustment to a fee for a Deliverable associated with the replacement Key Person’s Services.

4.2. Project Manager. Contractor shall designate a Project Manager as a Key Person for the Services. The Project Manager shall be familiar with Agency’s business operations and objectives. The Project Manager will participate with Agency in periodic review sessions and will provide at Agency’s request detailed progress reports that identify completed tasks and the status of the Services and Deliverables.

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

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

4.3.2. Review Solution and Contractor’s performance throughout the Contract and discuss possible improvements;

4.3.3. Discuss changes and Enhancements to the Solution or any new technologies that may be available for Agency;

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

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

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

4.5. Anti-Discrimination. Contractor certifies that Contractor has a written policy and practice that meets the requirements described in ORS 279A.212 for preventing sexual harassment, sexual assault, and discrimination against employees who are members of a protected class. Contractor agrees, as a material term of this Contract, to maintain such policy and practice in force during the entire Contract term. Contractor’s failure to maintain such policy and practice constitutes a breach entitling Agency to terminate this Contract for cause.

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

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

5. INDEPENDENT CONTRACTOR; TAXES AND WITHHOLDING.

5.1. Independent Contractor. Contractor shall perform all Services as an independent contractor. Although Agency reserves the right to evaluate the quality of the completed performance, Agency cannot and will not control the means or manner of Contractor’s performance. Contractor is responsible for determining the appropriate means and manner of performing the Services. Contractor declares and certifies by execution of this Contract that it is not an “officer,” “employee,” or “agent” of Agency, as those terms are used in ORS 30.265.

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

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

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

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

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

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

6. COMPENSATION.

6.1. Maximum Compensation. Notwithstanding any other provision of this Contract to the contrary, the maximum, not-to-exceed compensation that Agency will pay to Contractor is Two Hundred and Fifty Thousand Dollars ($250,000) (the “Maximum Not-To-Exceed Compensation”), which includes payment for any allowable expenses for which Contractor may request reimbursement under this Contract.

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

6.2.1. Payment of Fixed Prices. Payments are Deliverable-based. Agency will pay to Contractor the fixed price listed in Exhibit K for each Deliverable completed, delivered to, and Accepted by Agency.

6.3. Retention Amount.

6.3.1. Retention Amount for Services. Agency may hold back an amount (the "Retention Amount") of not more than ten percent (10%) of any amount that is payable by Agency to Contractor. Agency will pay the then-accrued Retention Amount to Contractor within thirty (30) Calendar Days following Final Acceptance.

6.3.2. Retention Amount for Hardware and Software. No retention amount will be withheld for purchases of hardware, subscription services, or licenses for Third Party Intellectual Property.

6.4. Expenses. Agency will not pay or reimburse any expenses incurred by Contractor during the completion of the Services except as authorized in the Statement Work and Exhibit K. Any such authorized travel expenses must comply with the Oregon Travel Policy, https://www.oregon.gov/das/financial/acctng/pages/travel.aspx, including as updated.

6.5. Invoices. Agency will pay Contractor not more than once each month upon Contractor’s submission of a 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 Contractor seeks compensation, and itemize and explain all authorized expenses for which reimbursement is claimed. The invoices must also include the total amount invoiced to date by Contractor prior to the current invoice. Contractor shall submit invoices to Agency’s Authorized Representative (or delegate). Agency has the right to review each such invoice for compliance with the requirements of this section and any other relevant provisions of this Contract. All payments to Contractor are subject to ORS 293.462.

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

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

6.8. Contractor or Subrecipient Determination.

In accordance with the Oregon State Controller’s Oregon Accounting Manual, policy 30.40.00. 104, Agency’s determination is that:

|_| Recipient is a subrecipient |X| Recipient is a contractor Catalog of Federal Domestic Assistance (CFDA) #(s) of federal funds to be paid through this Contract: 93.967

7. AMENDMENTS. This Contract may be amended, modified, or supplemented only by a written amendment signed by State and Contractor that, if required by applicable law, has been approved by DAS and for legal sufficiency by DOJ. Any amendment that provides for additional goods or Services may only provide for goods or Services directly related to the scope of goods and Services described in the RFP, and no amendment will be effective until all requisite signatures and approvals are obtained. Either Agency or Contractor may request a change to this Contract, including all exhibits hereto, by submitting a written proposal describing the desired change to the other party.

7.1. Change Control. Subject to the conditions above, amendments to an Exhibit A Statement of Work, Exhibit B, Service Level Agreements and Performance Standards, and to 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 Contractor may request a change by submitting a written proposal describing the requested change to the other party. Agency’s and Contractor’s Authorized Representatives will review the written change request and either approve it for further analysis or reject it.

7.1.1. Analysis of Change Requests; Change Orders. If both parties approve the written change request, 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 the Statement of Work or Service Level Agreement, and related costs. If Contractor requests to make changes to meet Statement of Work 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.