Att A Master Services Agreement~2.pdf

State of Oregon

Master Services Agreement

This Master Services Agreement (“MSA”) is by and between the State of Oregon, acting through its Department of Administrative Services, Procurement Services (“DAS”) on behalf of Oregon State Agencies and members of the Oregon Cooperative Purchasing Program (“Authorized Purchaser)” and Alaska Airlines, Inc. (“Contractor”) and is effective as of the Effective Date. DAS and Contractor are the parties to this MSA and may be referred to as “Party” or “Parties”, collectively.

Recitals

1. DAS desires to engage Contractor through this MSA to make available to DAS and other Authorized Purchasers certain City Pairs Airfare services, as described on Exhibit B (“Services”).

2. On January 10, 2024, DAS issued RFP #S-10700-00009172 to provide authority to directly award contracts to Contractor and other providers of the Services.

3. DAS desires Contractor to provide the Services to Authorized Purchasers, and Contractor wishes to provide the Services to Authorized Purchasers.

Agreement

The parties agree:

1. MSA Administrators.

Contractor Contract Administrator for this MSA is:

Contractor name:

Address:

City, State, Zip Phone:

Email Address:

DAS’ Contract Administrator for this MSA is:

Kaliska King, CPPB, OPBC 1225 Ferry St SE Salem, Oregon 97301 Phone: 503.798.1907 Email: Kaliska.king@das.oregon.gov

Either party may change its Contract Administrator by providing the other notice in compliance with Section 20.6 of this MSA.

2. Definitions. As used in this MSA, the following terms have the meanings set forth below:

“Authorized Purchaser” means: (i) DAS acting on behalf of itself, (ii) agencies of the State of Oregon that are subject to DAS procurement authority according to ORS 279A.050 and 279A.140 and that are authorized to use this mailto:Kaliska.king@das.oregon.gov

MSA through a delegation of authority according to OAR 125-246-0170 (“Authorized Agencies”); and (iii) ORCPP members.

“Authorized Purchaser Data” means information created and information stored by Authorized Purchaser through the Services, and information created and collected by Contractor regarding Authorized Purchaser and its clients during the course of providing the Services, including Personal Information.

“Authorized Purchaser Intellectual Property” means any intellectual property owned by Authorized Purchaser and developed independently from the Services.

“Business Day” 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.

“Capacity Controlled Inventory” means any available seat above the bottom 1/3 of the airline’s seating hierarchy in coach of the carrier’s commercial fare classification code schedule.

“City Pair” means the one-way flight in either direction between two designated cities.

“Contractor Intellectual Property” means any intellectual property owned by Contractor and developed independently from the Services.

“Customer Service” or “Help Desk Support” means all necessary activities to assist end users to effectively and efficiently use the Services and may include:

Tier 1 Support –Response to incidents, with resolution of incidents that can be resolved by the 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 Services or underlying systems.

Tier 3 Support – incidents leading to changes in the Services or underlying systems that need to be incorporated in a release.

“Direct flight” means a flight from one segment (city) to another segment (city) on the same aircraft with only one stop.

“Non-Stop flight” means a direct flight one segment (city) to another segment (city) with no stops or layovers in between.

“Oregon Cooperative Procurement Program” or “ORCPP” means the cooperative purchasing program created by DAS. Members may use DAS statewide price agreement. Members include: county, city, school district, law enforcement authority, special district, or any other kind of municipal, quasi-municipal, or public corporation organized pursuant to law.

“Partner Airline” means an airline that allows any code sharing allowances with and imposes no code sharing restrictions on the Traveler or partner airline.

“Protected class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability, or age.

“Segment” means each one-way flight.

“Services” means all effort to be expended by Contractor under the MSA.

“State” means the State of Oregon.

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

“TMC” means the Travel Management Contractor, which includes individuals and companies that coordinate reservations for lodging, airline, rail, and commercial modes of transportation including rental vehicles. These companies use Global Distribution Systems (GDS) to book flights for their clients. This allows the travel consultant to compare different itineraries and costs by displaying availability in real-time, allowing users to access fares for air tickets, hotel rooms and rental cars simultaneously.

“Traveler” means the person authorized (for official business) to acquire Services under this MSA.

“Unrestricted fare” means one-way fare offered to Authorized Purchasers.

“User Information” means all information directly or indirectly obtained from Travelers accessing the Services where such information is obtained by Contractor or by any of its employees, representatives, agents or any Third Parties having contractual privity with Contractor or who are under Contractor’s supervision or control.

“Work Product” means everything that is originally made, conceived, discovered, or reduced to practice by Contractor or Contractor’s subcontractors or agents (either alone or with others) pursuant to this MSA, including every invention, modification, discovery, design, development, customization, configuration, improvement, process, 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).

3. Contract Term. This MSA is effective on the date this MSA has been fully executed by each party and approved as required by applicable law (“Effective Date”). Unless extended or terminated earlier in accordance with its terms, this MSA terminates on _____ (“Initial Term”). Contractor and Authorized Purchaser may renew this MSA upon written agreement. The termination of this MSA will not extinguish or prejudice DAS’ or Authorized Purchaser’s right to enforce this MSA with respect to any default by Contractor that has not been cured.

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

1) this MSA less all exhibits;

2) Exhibit D (Federal Law);

3) Exhibit C (Special Requirements);

4) Exhibit A (Description of Services and Rates); and

5) Exhibit B (Required Insurance)

The foregoing documents and Exhibits are attached hereto and made a part of the MSA by this reference.

5. Services.

5.1. Performance of Services. From time to time, Authorized Purchasers may acquire from Contractor and Contractor shall perform services as described in Exhibit A, Description of Services (“Services”), subject to the provisions of this Contract, including the Special Terms and Conditions set forth in Exhibit C.

5.2. Request for Services.

5.2.1. ORCPP Members. Authorized Purchasers that are ORCPP members may use the process described in Section 5.2.2, or their own booking tools or processes as agreed to with Contractor to acquire Services.

5.2.2. Travel Management Services. Participating Entities and Authorized Users shall book and access the rates in this Agreement through the State of Oregon’s Travel Management Contractor (TMC). Rates must be accessible to the TMC, either through the Global Distribution Service (GDS) or through another way under which the TMC and Contractor each have access to the rates

5.2.3. State Agency Authorized Purchasers. State Agency Authorized Purchasers or Travelers needing to book travel must use the State’s TMC to book all flights via a TMC Agent or the online booking tool. In the event of multiple awards of Master Services Agreements, Authorized Purchaser’s travel coordinator (or the Traveler) should:

(1) review which flights are available for a City Pair fare and compare cost, Traveler schedule, and other needs or Services available, and then select the contractor that provides the best value for the Authorized Purchaser (or Traveler), and then

(2) the Authorized Purchaser’s traveler coordinator (or the Traveler) will either (i) call the TMC or (ii) book online via a booking tool, to book the applicable flight based upon what is in the best interest of Authorized Purchaser (or Traveler). Authorized Purchaser must reference this MSA in its request.

(3) Authorized Purchaser must immediately review the reservation for accuracy and cost. If the reservation is incorrect in any aspect, Authorized Purchaser may reject the reservation and request Contractor revise or cure any deficiency at Contractor’s cost.

5.2.4. Request Rejection. Contractor shall reject requests that do not comply with this section 6. Contractor also shall reject requests that are not from Authorized Purchasers. Contractor may verify ORCPP Members at:

http://www.oregon.gov/DAS/SSD/SPO/index.shtml

5.3. Authorized Purchasers’ Liability under Contracts. Contractor shall look solely to the Authorized Purchaser for any rights and remedies Contractor may have at law or in equity arising under any Contract between Contractor and the Authorized Purchaser. Contractor acknowledges and agrees that DAS is not liable to Contractor under any Contract entered into between Contractor and an Authorized Agency or an ORCPP Member unless DAS is purchasing the Services as the Authorized Purchaser.

5.4. Transition of Services. DAS may request that Contractor continue to provide the Services for a period up to 90 calendar days after the termination of this MSA (“Transition Period”). During the Transition Period, Contractor shall continue to provide the Services, and shall provide additional services to support a responsible and secure transition to another provider as designated by DAS and shall also continue to provide Authorized Purchaser with access to all Authorized Purchaser Data.

5.5. Cooperation. Contractor shall cooperate with DAS, Authorized Purchaser and their designated third parties, specifically including the TMC.

5.6. Public Records. DAS and State Agencies, as executive department entities of State, must respond to requests for Authorized Purchaser Data and other public records under Oregon’s Public Records laws, including ORS 192.311 to 192.478, within set timeframes. Contractor shall support the ability of DAS and any State Agency to respond to public records requests for Authorized Purchaser Data in accordance with applicable law.

5.7. Business Continuity Management and Disaster Recovery. Contractor shall deliver, maintain, and upgrade as necessary, Business Continuity Management and Disaster Recovery Plan and Procedures for the Services, acceptable to Authorized Purchaser. In the event of a disaster, Contractor shall comply with the provisions of and deliver the Service according to the Business Continuity Management and Disaster Recovery Plan and Procedures.

6. Payment.

6.1. Aire fare Payment. DAS has contracted on behalf of the State and other Authorized Purchasers for travel related charge services which include air fares. The TMC under contract with the State of Oregon charges the fare to the State's or Authorized Purchaser's respective billing number. The forms of payment for this Master Agreement are the Visa credit card (series 4730 and 4488 only) for State agencies, other Authorized Purchasers, and the Oregon University System. If the State or University System awards a new contract for its travel related charge services, DAS shall notify the Contractor in writing prior to the tickets being purchased with the new charge cards. The State reserves the right to allow a check form of payment through the State of Oregon Contract Travel Agency whenever a credit card becomes unavailable. At the discretion of any State Contract Travel Agency, the Contract Travel Agency may accept a check as the form of payment from the Authorized Purchaser and process the ticket through ARC. Under no circumstances shall checks be written directly to the Contractor.

6.2. Rates. Authorized Purchaser shall pay Contractor the Rates set forth on Exhibit A. Authorized Purchaser will not pay Contractor any amount in excess of the amounts set forth on Exhibit A and will not pay for Services performed before the Effective Date or after the expiration or termination of this MSA. If the Rates are increased by amendment, the amendment must be fully effective before Contractor performs Services subject to the amendment.

6.3. Price Changes. Contractor shall keep pricing specified in Exhibit A fixed for at least the first twelve (12) full months of this MSA. Thereafter, DAS and Contractor may adjust pricing no more than once annually by MSA amendment. The Party requesting the change shall send written notice to the other Party at least 30 days prior to the end of the then-current term. The notice should include the requested change(s) and reason for the change(s).

The Parties shall negotiate in good faith. The renegotiated rates will be effective on all existing and future Services obtained from Contractor on or after the amendment signing.

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

7. Independent Contractor; Responsibility For Taxes And Withholding

7.1. Independent Contractor. Contractor shall perform all Services as an independent contractor. DAS and Authorized Purchaser reserve the right (i) to determine and modify the delivery schedule for the Services and (ii) to evaluate the quality of the Services, but neither DAS nor Authorized Purchaser may or will control the means or manner of Contractor's performance. Contractor is responsible for determining the appropriate means and manner of performing the Services.

7.2. No Conflicts. Contractor represents and warrants that Contractor’s performance of the Services under this MSA 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 MSA.

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

7.4. Taxes and Benefits. Contractor is responsible for all federal or state taxes applicable to compensation or payments paid to Contractor under this MSA and, unless required by applicable law, Authorized Purchaser 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 MSA, except as a self-employed individual.

8. Representations and Warranties.

8.1. Contractor’s General Representations and Warranties. Contractor represents and warrants to DAS and Authorized Purchaser that:

• Contractor has the power and authority to enter into and perform this MSA;

• This MSA, when executed and delivered, is a valid and binding obligation of Contractor enforceable in accordance with its terms;

• Contractor shall, at all times during the term of this MSA, be qualified, professionally competent, and duly licensed to perform the Services;

• Contractor is not in violation of, charged with nor, to the best of Contractor’s knowledge, under any investigation with respect to violation of, any provision of any federal, state or local law, ordinance or regulation or any other requirement or order of any governmental or regulatory body or court or arbitrator applicable to provision of the Services, and Contractor’s provision of the Application Services or other Services will not violate any such law, ordinance, regulation or order; and

• Contractor is an independent contractor and Contractor’s performance under this MSA to the best of Contractor's knowledge creates no potential or actual conflict of interest, as defined by ORS 244, for Contractor or any Contractor personnel or Key Persons that will perform Services under this MSA and creates no other violation of ORS Chapter 244 for Contractor, its agents, or contractors.

8.2. Contractor’s Performance Warranties. Contractor represents and warrants to DAS and Authorized Purchaser that:

• Contractor has the skill and knowledge possessed by well-informed members of its industry, trade or profession and Contractor shall apply that skill and knowledge with care and diligence to perform the Services in a professional manner and in accordance with the highest standards prevalent in Contractor’s industry, trade or profession;

• The Services delivered by Contractor pursuant to the Services will materially comply with any service descriptions, specifications, standards or requirements set forth in this MSA;

• Any software, platform or application used to provide the Services is free of what are commonly defined as viruses, backdoors, worms, spyware, malware and other malicious code that will hamper performance of the software, collect unlawful personally identifiable information on users, or prevent the software from performing as required under the terms and conditions of this MSA. Notwithstanding the foregoing, this representation and warranty does not include a disabling device that limits, suspends or ends use of the software, platform or application expressly permitted by the terms and conditions by the license under which it was provided; and

• Except as otherwise set forth in this MSA, any subcontractors performing work for Contractor under this MSA have assigned all of their rights to Contractor or Authorized Purchaser and no third party has any right, title or interest in any Services supplied to Authorized Purchaser under this MSA.

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

9. Ownership of Work Product.

9.1. Authorized Purchaser Data and Intellectual Property. Authorized Purchaser owns all Authorized Purchaser Intellectual Property and Authorized Purchaser Data, including all Work Product. Authorized Purchaser hereby grants to Contractor a limited right to use Authorized Purchaser’s Intellectual Property and Authorized Purchaser Data, including all Work Product, for the purposes of this MSA only.

9.2. Original Works. All Work Product created by Contractor pursuant to the Services, including derivative works and compilations of Work Product, is the exclusive property of Authorized Purchaser. Authorized Purchaser and Contractor agree that such Work Product is “work made for hire” of which Authorized Purchaser is the author within the meaning of the United States Copyright Act. If for any reason the Work Product is not “work made for hire,” Contractor hereby irrevocably assigns to Authorized Purchaser any and all of its rights, title, and interest in all Work Product, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Upon Authorized Purchaser’s reasonable request, Contractor shall execute such further documents and instruments necessary to fully vest such rights in Authorized Purchaser. Contractor forever waives any and all rights relating to Work Product, including without limitation, any and all rights arising under 17 USC §106A or any other rights of identification of authorship or rights of approval, restriction or limitation on use or subsequent modifications.

9.3. License in Contractor Intellectual Property. Contractor hereby grants to Authorized Purchaser an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the pre-existing elements of the Contractor Intellectual Property employed in the Services, and to authorize others to do the same on Authorized Purchaser’s behalf.

9.4. License in Third Party Intellectual Property. Unless otherwise agreed, Contractor shall secure on Authorized Purchaser’s behalf and in the name of Authorized Purchaser an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the pre-existing elements of the Third Party Intellectual Property employed in the Services, and to authorize others to do the same on Authorized Purchaser’s behalf.

9.5. No Rights. Except as expressly set forth in this MSA, nothing in this MSA 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 Authorized Purchaser. Except as expressly set forth in this MSA, nothing in this MSA may be construed as granting to or conferring upon Authorized Purchaser any right, title, or interest in any Contractor Intellectual Property that is now owned or subsequently owned by Contractor.

9.6. 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 MSA.

9.7. Competing Services. Subject to the provisions of this Section, and Contractor’s obligations with respect to Confidential Information, nothing in this MSA precludes or limits in any way the right of Contractor to: (i) provide services similar to those contemplated in this MSA, 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 Services performed pursuant to this MSA. 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 MSA free of any use restriction or payment obligation to the other.

10. Confidential Information.

10.1. Confidential Information. Contractor acknowledges that it and its employees, officers, directors, agents or subcontractors (collectively, “Contractor Staff”) may, in the course of performing the Services under this MSA, be exposed to or acquire information that is confidential to Authorized Purchaser or its clients. Any and all information of any form (including but not limited to records, files, papers, materials, documents, and communications in written, verbal, oral and electronic form) that Contractor or any Contractor Staff may come into contact with or that is obtained by Contractor or Contractor Staff in the performance of this MSA is the confidential information of Authorized Purchaser (“Confidential Information”). Contractor shall and shall cause Contractor Staff to treat any reports or other documents or items (including software) that result from the use of the Confidential Information in the same manner as the Confidential Information.

10.2. Non-Disclosure. Contractor shall hold, and shall cause Contractor Staff to hold, all Confidential Information in confidence, using the highest standard of care applicable, and shall not copy, reproduce, sell, assign, license, market, transfer, distribute, or otherwise dispose of, give, make available or disclose, in whole or in part, directly or indirectly, Confidential Information to third parties (other than its authorized subcontractors), or use Confidential Information for any purposes whatsoever other than the provision of Services to Authorized Purchaser hereunder.

Contractor shall assist Authorized Purchaser in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the generality of the foregoing, Contractor shall advise DAS and Authorized Purchaser immediately in the event Contractor learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this MSA, and Contractor will at its expense cooperate with DAS and Authorized Purchaser in seeking injunctive or other equitable relief in the name of the State or Contractor against any such person. Contractor shall not at any time during or after the term of this MSA disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this MSA or as directed by DAS or Authorized Purchaser. Upon expiration or termination of this MSA or at DAS’ or Authorized Purchaser’s request, Contractor shall deliver to Authorized Purchaser all Confidential Information in Contractor's possession. Contractor may keep one copy of such Confidential Information as necessary for quality assurance, audits and evidence of performance of the Services.

The following information is exempt from the non-disclosure obligations, information that: (i) is or becomes publicly known or is contained in a publicly available document except to the extent applicable law still restricts disclosure; (ii) is furnished by Authorized Purchaser to others without restrictions similar to those imposed by this MSA; (iii) is rightfully in Contractor’s possession without the obligation of nondisclosure prior to the time of its disclosure under this MSA; (iv) is obtained from a source other than Authorized Purchaser without the obligation of confidentiality, (v) is disclosed with the written consent of Authorized Purchaser; (vi) is independently developed by Contractor or Contractor Staff who can be shown to have had no access to the Confidential Information; or (vii) is required to be disclosed by law.

10.3. Consumer Information Protection. In the performance of this MSA, Contractor may have possession or access to documents, records or items that contain “Personal Information”, as that term is used in ORS 646A.602(12). Personal Information is a type of Confidential Information that is highly sensitive and subject to additional protection. Prior to the receipt of, and during the period in which Contractor has possession of or access to, any Personal Information, Contractor shall have and maintain a formal written information security program that provides safeguards to protect Personal Information from loss, theft, and disclosure to unauthorized persons, as required by the Oregon Consumer Information Protection Act, ORS 646A.600-646A.628. Contractor shall not breach or permit breach of the security of any 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 MSA. Contractor shall not disclose, or otherwise permit access of any nature, to any unauthorized person, of any such Personal Information. Contractor shall not use, distribute or dispose of any Personal Information other than expressly permitted by Authorized Purchaser, required by applicable law, or required by an order of a tribunal having competent jurisdiction. Contractor shall promptly report to the Authorized Purchaser any breach of security, use, disclosure, theft, loss, or other unauthorized access of any document, record, compilation of information or other item that contains Personal Information to which the Contractor receives access, possession, custody or control in the performance of this MSA.

10.4. Data and Network Security. Contractor shall comply at all times with all of the State’s data and network security requirements as applicable to this MSA or the Services, as modified or adopted from time to time.

10.4.1. State Standards. Contractor shall comply with all applicable State standards:

• Oregon’s Statewide Information Security Standards:

https://www.oregon.gov/eis/cyber-security-services/Pages/guidance-for-state-agencies.aspx, including security controls that meet or exceed “Moderate” security controls in the National Institute of Standards and Technology (NIST) Special Publication (SP) 800-53.

• Oregon’s Statewide Information Technology Policies:

https://www.oregon.gov/das/Pages/policies.aspx#IT

• the requirements of the Oregon Consumer Information Protection Act (ORS 646A.600 et. seq.)

10.4.2. Criminal Background Checks. Contractor’s employees, agents and subcontractors performing Services under this MSA must submit to a criminal background check, that may include a combination of fingerprinting, Oregon Law Enforcement Data Systems (“LEDS”), and Federal Bureau of Investigation Criminal Justice Information Services (“FBI CJIS”) background checks. Background checks must occur prior to arrival on State facilities or prior to access of Authorized Purchaser Confidential Information, whichever occurs first.

Background checks will be performed at Authorized Purchaser expense. Authorized Purchaser has the right to reject any Contractor employee, agent, or subcontractor, or limit any such person’s access to the Services or premises based on the results of the background check.

10.4.3. Breach Notification. In the event Contractor or its subcontractors or agents discover or are notified of a breach or potential breach of security relating to the Services or Confidential Information, including a failure to comply with Contractor’s confidentiality obligations under this MSA, Contractor shall immediately notify DAS’ and Authorized Purchaser’s Authorized Representative of the breach or potential breach. If Authorized Purchaser determines that the breach or potential breach requires notification of Authorized Purchaser clients or employees, or other notification required by law, Authorized Purchaser will have sole control over the notification content, timing, and method, subject to Contractor’s obligations under applicable law.

10.4.4. Prohibition on Data Mining. Contractor shall not capture, maintain, scan, index, share or use Authorized Purchaser Data stored, processed, or transmitted by the Services, or otherwise use any data-mining technology, for any unrelated commercial purposes, advertising or advertising-related purposes, or for any other purpose other than security analysis that is not explicitly authorized in this MSA, and Contractor shall not permit its agents or subcontractors to do so either.

10.5. Injunctive Relief. Contractor acknowledges that breach of this Section, including disclosure of any Confidential Information, will cause irreparable injury to the State that is inadequately compensable in damages.

Accordingly, the State may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available. Contractor acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of the State and are reasonable in scope and content.

10.6. Publicity. Contractor agrees that it will not disclose the form, content or existence of this MSA in any advertising, press releases or other materials distributed to prospective customers, or otherwise attempt to obtain publicity from its association with Authorized Purchaser or the State of Oregon, without the prior written consent of DAS and Authorized Purchaser.

https://www.oregon.gov/das/Pages/policies.aspx#IT

11. Indemnification and Claims.

11.1. Indemnity by Contractor. Contractor shall defend (subject to ORS Chapter 180), save, hold harmless, and indemnify the State of Oregon DAS, and Authorized Purchaser and their officers, employees and agents from and against all third party claims, suits, actions, losses, damages, liabilities, statutory penalties, costs (including attorneys’ fees) and expenses, of any nature whatsoever resulting from, arising out of, or relating to the activities of Contractor or its officers, employees, subcontractors, or agents under this MSA. CONTRACTOR IS NOT AUTHORIZED TO SETTLE OR COMPROMISE ANY CLAIM REFERENCED IN THIS SECTION WITHOUT THE EXPRESS WRITTEN CONSENT

OF DAS AND AGENCY.

11.2. Damages to State Property and Employees. Contractor is liable for all claims for personal injury or death, including death, damage to real property and damage to tangible and intangible personal property of the State of Oregon or any of its employees, subcontractors or agents resulting from, arising out of, or relating to the intentional, reckless, or negligent acts or omissions of Contractor or its officers, employees, subcontractors, or agents under this MSA.

12. Limitation of Liabilities.

12.1. CONTRACTOR'S AGGREGATE LIABILITY FOR DAMAGES RELATED TO BREACH OF CONTRACT, INCLUDING ANY REPRESENTATION, WARRANTY OR COVENANT IN THIS CONTRACT WILL BE LIMITED TO THE AMOUNT OF ANY ACTUAL DIRECT DAMAGES UP TO ONE AND ONE HALF TIMES THE MAXIMUM-NOT-TO-EXCEED COMPENSATION.

12.2. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOST SAVINGS, OR PUNITIVE, INDIRECT, EXEMPLARY, CONSEQUENTIAL, OR INCIDENTAL DAMAGES.

12.3. Limitation of DAS and Authorized Purchaser Liabilities. DAS’ or Authorized Purchaser’s liabilities to Contractor, if any, are subject to Article XI, Section 7 of the Oregon Constitution and the Oregon Tort Claims Act, ORS 30.260-30.300.

13. Insurance. Contractor shall maintain insurance as set forth in Exhibit B.

14. Contractor Default; DAS and Authorized Purchaser Remedies.

14.1. Contractor Default. Contractor will be in default under this MSA if Contractor:

• Institutes or has instituted against it insolvency, receivership or bankruptcy proceedings, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis; or

• No longer holds a license or certificate that is required for Contractor to perform its obligations under the MSA and Contractor has not obtained such license or certificate within 14 Calendar Days after DAS’ and Authorized Purchaser’s notice or such longer period as DAS and Authorized Purchaser may specify in such notice; or

• Commits any material breach or default of any covenant, warranty, obligation, certification, or agreement under this MSA, fails to perform the Services under this MSA within the time specified herein or any extension thereof, or so fails to pursue the Services as to endanger Contractor's performance under this MSA in accordance with its terms, and such breach, default or failure is not cured within 14 Calendar Days after DAS’ and Authorized Purchaser’s notice, or such longer period as DAS and Authorized Purchaser may specify in such notice; or

• Has undisclosed liquidated and delinquent debt owed to the State of Oregon or any of its agencies, boards, commissions, departments or divisions.

14.2. DAS’ and Authorized Purchaser’s Remedies for Contractor’s Default. In the event Contractor is in default, DAS and Authorized Purchaser may, at their option, pursue any or all of the remedies available to it under this MSA and at law or in equity, including, but not limited to:

• Suspension of Services; or

• Termination of this MSA; or

• Withholding all monies due for Services that Contractor has failed to deliver within any scheduled completion dates or has performed inadequately or defectively; or

• Initiation of an action or proceeding for damages, specific performance, or declaratory or injunctive relief;

or

• Exercise of its right of setoff, and withholding of amounts otherwise due and owing to Contractor, without penalty; or

• Undertaking collection by administrative offset, or garnishment if applicable, of all monies due for Services to recover liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State. Offsets or garnishment may be initiated after the Contractor has been given notice if required by law.

14.3. Remedies Cumulative. The remedies set forth in Section 15.2 are cumulative to the extent the remedies are not inconsistent, and DAS and Authorized Purchaser may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever. If a court determines that Contractor was not in default, then Contractor will be entitled to the same remedies as if this MSA was terminated for convenience.

15. Authorized Purchaser Default and Contractor Remedies.

15.1. Authorized Purchaser Default. Authorized Purchaser will be in default under this MSA if Authorized Purchaser: (i) Authorized Purchaser fails to pay Contractor any amount pursuant to the terms of this MSA, and Authorized Purchaser fails to cure such failure within 30 Calendar Days after Contractor’s notice or such longer period as Contractor may specify in such notice; or (ii) Authorized Purchaser commits any material breach or default of any covenant, warranty, or obligation under this MSA, and such breach or default is not cured within 30 Calendar Days after Contractor’s notice or such longer period as Contractor may specify in such notice.

15.2. Contractor’s Remedies. If Authorized Purchaser is in default or if Authorized Purchaser terminates this MSA for convenience Contractor may terminate the MSA, but Contractor’s sole remedy will be (i) a claim against Authorized Purchaser for unpaid invoices, time worked within any limits set forth in this MSA but not yet invoiced and authorized expenses incurred and interest, subject to ORS 293.462, or (ii) a claim against Authorized Purchaser for the sum designated for completing the Services multiplied by the percentage of Services completed and accepted by Authorized Purchaser, less previous amounts paid and any claim(s) that Authorized Purchaser has against Contractor. In no event will DAS nor Authorized Purchaser be liable to Contractor for any expenses related to termination of this MSA or for anticipated profits. If previous amounts paid to Contractor exceed the amount due to Contractor under this sub-Section, Contractor shall pay immediately any excess to Authorized Purchaser upon written demand

16. Stop Work. Authorized Purchaser may, at any time, by written notice to Contractor, require Contractor to stop providing the Services or to stop all or any part of the work required by this MSA for a period of up to 90 Calendar Days after the date of the notice, or for any further period to which the parties may agree. Upon receipt of the notice, Contractor shall immediately comply with the Stop-Work Order terms and take all necessary steps to minimize the incurrence of costs allocable to the work affected by the Stop Work Order notice. Within a period of 90 Calendar Days after issuance of the written notice, or within any extension of that period to which the parties have agreed, Authorized Purchaser will either: (i) cancel or modify the Stop Work Order by a supplementary written notice, or (ii) amend the MSA, or (iii) terminate the work.

If the Stop Work Order is canceled or Authorized Purchaser issues a notice directing Contractor to resume Services, the parties may make an adjustment in the time required to complete the Services by a duly executed amendment, including any ramp-up time required to for Contractor to resume Services. Any such Contractor request must be in the form of a Change Request and must be received by Authorized Purchaser within 10 Business Days of Authorized Purchaser’s notice canceling the Stop Work Order or directing Contractor to resume Services.

17. Termination.

17.1. DAS’ and Authorized Purchaser’s Right to Terminate. DAS and Authorized Purchaser may terminate this

MSA:

17.1.1. For convenience, upon 30 Calendar Days’ prior written notice by DAS and Authorized Purchaser to Contractor;

17.1.2. Immediately upon written notice by DAS and Authorized Purchaser to Contractor if Authorized Purchaser fails to receive funding, appropriations, limitations, allotments or other expenditure authority at levels sufficient to pay for the Services or Work Products; or

17.1.3. Immediately upon written notice by DAS and Authorized Purchaser to Contractor if federal or state laws, regulations, or guidelines are modified or interpreted in such a way that the Authorized Purchaser’s purchase of the Services or Work Products under this MSA is prohibited or Authorized Purchaser is prohibited from paying for such Services or Work Products from the planned funding source; or

17.1.4. DAS and Authorized Purchaser may terminate this MSA immediately upon written notice by DAS and Authorized Purchaser to Contractor, or at such later date as DAS and Authorized Purchaser may establish in such notice, if Contractor is in default and has failed to cure.

17.2. Contractor’s Right to Terminate for Cause. Contractor may terminate this MSA immediately upon written notice to DAS and Authorized Purchaser, or at such later date as Contractor may establish in such notice, if Authorized Purchaser is in default and has failed to cure.

17.3. Return of Property. Upon termination of this MSA for any reason, Contractor shall immediately deliver to Authorized Purchaser all of Authorized Purchaser’s property (including without limitation any Authorized Purchaser Data, Services or Work Products for which Authorized Purchaser has made payment in whole or in part) that is in the possession or under the control of Contractor in whatever stage of development and form of recordation such Authorized Purchaser property is expressed or embodied at that time.

17.4. Effect of Termination. Upon receiving a notice of termination of this MSA, Contractor shall immediately cease all activities under this MSA, unless DAS or Authorized Purchaser expressly directs otherwise in such notice of termination. Upon DAS’ or Authorized Purchaser’s request, Contractor shall surrender to anyone DAS or Authorized Purchaser designates, all documents, research or objects or other tangible things needed to complete the Services.

18. Compliance with Law.

18.1. Compliance with Law Generally. Contractor shall comply, and cause all subcontractors to comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to this MSA, Contractor or the performance of the Services, as may be modified or adopted from time to time.

Without limiting the generality of the foregoing, Contractor expressly agrees to comply with the following laws, regulations and executive orders to the extent they are applicable to this MSA: (i) Titles VI and VII of the Civil Rights Act of 1964, as amended; (ii) Title V and Sections 503 and 504 of the Rehabilitation Act of 1973, as amended; (iii) the Americans with Disabilities Act of 1990 and ORS 659A.142, as amended; (iv) Executive Order 11246, as amended; (v) the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health (HITECH) Act portion of the American Recovery and Reinvestment Act of 2009 (ARRA), including the Privacy and Security Rules found at 45 CFR Parts 160 and 164, as the law and its implementing regulations may be updated from time to time; (vi) the Age Discrimination in Employment Act of 1967, as amended, and the Age Discrimination Act of 1975, as amended; (vii) the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended; (viii) Section 188 of the Workforce Investment Act (WIA) of 1998, as amended; (ix) ORS Chapter 659, as amended; (x) all regulations and administrative rules established pursuant to the foregoing laws; and (xi) all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations. These laws, regulations and executive orders are incorporated by reference herein to the extent that they are applicable to the MSA and required by law to be so incorporated.

18.2. Compliance with Federal Law. Notwithstanding the generality of Section 19.1 or the above, Contractor shall comply with all applicable federal laws, including, without limitation, those set forth in Exhibit D, which is attached and incorporated into this MSA by this reference.

18.3. Specific State Requirements. Authorized Purchaser’s performance under the MSA is conditioned upon Contractor's compliance with the provisions of ORS 279B.220, 279B.225, 279B.230, 279B.235 and 279B.270 which are incorporated by reference herein. Contractor shall, to the maximum extent economically feasible in the performance of this MSA, use recycled paper (as defined in ORS 279A.010(1)(gg)), recycled PETE products (as defined in ORS 279A.010(1)(hh)), and other recycled products (as “recycled product” is defined in ORS 279A.010(1)(ii)).

18.4. Compliance with Oregon Tax Laws. Contractor certifies that for a period of 6 years prior to the Effective Date of this MSA Contractor has complied with and shall, throughout the duration of this MSA, comply with all tax laws of this State, including: (i) all tax laws of State, as referenced in ORS 305.380(4), ORS 305.620 and ORS chapters 316, 317, and 318; (ii) any tax provisions imposed by a political subdivision of 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; (iii) any tax provisions imposed by a political subdivision of State that applied or apply to Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor; and

(iv) any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions. The Oregon Department of Revenue may take any action permitted by law to enforce the tax laws.

18.5. ASSIGNMENT OF ANTITRUST RIGHTS. CONTRACTOR IRREVOCABLY ASSIGNS TO AUTHORIZED PURCHASER ANY CLAIM FOR RELIEF OR CAUSE OF ACTION WHICH THE CONTRACTOR NOW HAS OR WHICH MAY ACCRUE TO THE CONTRACTOR IN THE FUTURE BY REASON OF ANY VIOLATION OF 15 U.S.C. § 1-15 OR ORS 646.725 OR ORS 646.730, IN CONNECTION WITH ANY GOODS OR SERVICES PROVIDED TO THE CONTRACTOR FOR THE PURPOSE OF CARRYING OUT THE CONTRACTOR'S OBLIGATIONS UNDER THIS MSA, INCLUDING, AT AUTHORIZED PURCHASER’S OPTION, THE RIGHT TO CONTROL ANY SUCH LITIGATION ON SUCH CLAIM OR RELIEF OR CAUSE OF ACTION. CONTRACTOR SHALL REQUIRE ANY SUBCONTRACTORS HIRED TO PERFORM ANY OF CONTRACTOR'S DUTIES UNDER THIS MSA TO IRREVOCABLY ASSIGN TO AUTHORIZED PURCHASER, AS THIRD PARTY BENEFICIARY, ANY RIGHT, TITLE OR INTEREST THAT HAS ACCRUED OR WHICH MAY ACCRUE IN THE FUTURE BY REASON OF ANY VIOLATION OF 15 U.S.C. § 1-15 OR ORS 646.725 OR ORS 646.730, IN CONNECTION WITH ANY GOODS OR SERVICES PROVIDED TO THE SUBCONTRACTOR FOR THE PURPOSE OF CARRYING OUT THE SUBCONTRACTOR'S OBLIGATIONS TO THE CONTRACTOR IN PURSUANCE OF THIS MSA, INCLUDING, AT AUTHORIZED PURCHASER’S OPTION, THE RIGHT TO

CONTROL ANY SUCH LITIGATION ON SUCH CLAIM OR RELIEF OR CAUSE OF ACTION.

18.6. Anti-Discrimination. Contractor certifies that Contractor has, and shall maintain for the entire MSA term, 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 Cass.

18.7. Pay Equity. In compliance with ORS 652.220, Contractor shall 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. 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.

18.8. Oregon False Claims. Contractor understands and acknowledges it is subject to the Oregon False Claims Act (ORS 180.750 to 180.785) and to any liabilities or penalties associated with the making of a false claim under that Act. Contractor certifies the truthfulness, completeness, and accuracy of any statement or claim it has made, it makes, it may make, or cause to be made that pertains to the MSA or the Services being provided, including but not limited to Contractor invoices, correspondence, reports, or other deliverables.

19. Governing Law; Venue and Jurisdiction.

19.1. Governing Law. This MSA is governed by and construed in accordance with the laws of the State of Oregon without regard to principles of conflicts of law.

19.2. Dispute Resolution. Any dispute between the parties under this MSA that is not resolved through informal discussions may be submitted to…