AttachI_SampleGrpBenefitsCon_Rx.pdf

PEBB Medical & Pharmacy Benefits RFP OregonBuys Bid Number S-44300-00014758 Attachment I, Pharmacy

Public Employees’ Benefit Board Pharmacy Benefit Services Contract

This Pharmacy Benefits Contract, (the “Contract”) is between the State of Oregon, acting by and through its Public Employees’ Benefit Board (“PEBB”), and ________. (“Contractor”):

Contractor Name Address Address Phone

Fax Email

Federal Tax Identification Number:

State Tax Identification Number:

CONTRACT TERM (Non-Negotiable) This Contract is effective on January 1, 2027 (“Effective Date”). Unless extended or terminated earlier in accordance with its terms, this Contract terminates on December 31, 2029. For the Contract’s term to be extended, Contractor must satisfactorily perform the required services and meet annual PEBB requirements.

PURPOSE

The purpose of this Contract is for Contractor to provide Pharmacy Benefit Services to State employees who elect to participate in PEBB’s Benefit Plans.

CONTRACT DOCUMENTS

This Contract consists of (a) this Group Benefits Contract without Attachments, together with (b) the following listed exhibits which are attached and are hereby incorporated into this Contract by reference:

Exhibit A – Legal Terms and Conditions Exhibit B – Definitions Exhibit C – Statement of Work Exhibit D – Reporting and Performance Requirements Exhibit E – Rates Exhibit F – Data Sharing Agreement Exhibit G – Insurance Requirements Exhibit H – Independent Contractor Certification Exhibit I – Companion Guide

Attachment I, Pharmacy

SIGNATURE PAGE TO FOLLOW

Attachment I, Pharmacy

CONTRACT SIGNATURES:

In witness, the parties have caused this Contract to be executed by their duly authorized representatives.

Contractor

By: Date:

Authorized Signatory, Title

PEBB

By: Date:

PEBB Board Chair or authorized designee

PEBB

By: Date:

Ali Hassoun, PEBB Director or authorized designee

Legal Sufficiency Approval

By: Date:

AAG Name, Title, Oregon Department of Justice

Attachment I, Pharmacy

EXHIBIT A

LEGAL TERMS AND CONDITIONS

1. Definitions

1.1. The following definitions apply to this Contract:

Please see Attachment B of the main RFP document. The Contract resulting from this RFP will include those definitions in Exhibit B of this Contract to the extent the defined terms are used in the future Contract.

1.2. Except for terms specifically defined in Exhibit B of this Contract, the definitions in PEBB’s administrative rules in Chapter 101 of the Oregon Administrative Rules found at https://secure.sos.state.or.us/oard/displayChapterRules.action?selectedChapter=36 govern this Contract.

2. Consideration

In consideration of the Work being performed under this Contract, PEBB shall pay Contractor consistent with Exhibit E, Rates. PEBB shall not pay for Work performed before this Contract is effective (except as provided herein) or after the Contract terminates.

3. Default

3.1. Contractor shall be in default under this Contract if:

3.1.1 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;

3.1.2 Contractor no longer holds a license or certificate that is required for Contractor to perform its obligations under the Contract and Contractor has not obtained such license or certificate within 14 calendar days after PEBB’s notice or such longer period as PEBB may specify in such notice;

3.1.3 Contractor commits any material breach or default of any covenant, warranty, obligation or agreement under this Contract, or fails to perform the Work under this Contract within the time specified under this Contract or any extension by PEBB of such time, or fails to pursue the Work as to endanger Contractor’s performance under this Contract in accordance with its terms, and such breach, default or failure is not cured within 10 calendar days after PEBB’s notice, or such longer period as PEBB may specify in such notice; or

3.1.4 Contractor has liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State.

https://secure.sos.state.or.us/oard/displayChapterRules.action?selectedChapter=36

Attachment I, Pharmacy

3.2 If Contractor is in default under Section 3 , PEBB may pursue any or all of the remedies available to it under this Contract and at law or in equity, including, but not limited to:

3.2.1 Termination of this Contract under Section 4;

3.2.2 Withholding all monies due for Work and Work Products that Contractor has failed to deliver within any scheduled completion dates or has performed inadequately or defectively;

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

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

3.2.5 Undertaking collection by administrative offset, or garnishment if applicable, of all monies due for Services and Deliverables 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; or

3.2.6 All of them or any combination thereof.

3.3 These remedies described above in 3.2 are cumulative to the extent the remedies are not inconsistent, and PEBB may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever.

3.4 PEBB will be in default under this Contract if:

3.4.1 PEBB fails to pay Contractor any amount pursuant to the terms of this Contract, and PEBB 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

3.4.2 PEBB commits any material breach or default of any covenant, warranty, or obligation under this Contract, 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.

4. Termination

4.1 PEBB’s Right to Terminate at its Discretion. PEBB may terminate this Contract:

4.1.1 Upon 30 calendar days’ prior written notice by Agency to Contractor;

4.1.2 Immediately upon written notice by PEBB to Contractor if PEBB fails to receive funding, appropriations, limitations, allotments or other expenditure authority at levels sufficient to pay for the Services or Work Products; or,

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

4.2 PEBB’s Right to Terminate for Cause. In addition to any other rights and remedies PEBB may have under this Contract, PEBB may terminate this Contract immediately upon written notice by PEBB to Contractor, or at such later date as PEBB may establish in such notice, if Contractor is in default under Section 3.

4.3 Contractor’s Right to Terminate for Cause. Contractor may terminate this Contract immediately upon written notice to PEBB, or at such later date as Contractor may establish in such notice, if PEBB is in default under Section 3.

4.4 Return of Property. Upon termination of this Contract for any reason whatsoever, Contractor shall immediately deliver to PEBB all of PEBB’s property (including without limitation any Services or Work Products for which PEBB 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 PEBB property is expressed or embodied at that time.

4.5 Effect of Termination. Upon receiving a notice of termination of this Contract, Contractor shall immediately cease all activities under this Contract, unless PEBB expressly directs otherwise in such notice of termination. Upon PEBB's request, Contractor shall surrender to anyone PEBB designates, all documents, research or objects or other tangible things needed to complete the Services and the Deliverables.

5 Procedure upon Expiration

5.1 When this Contract expires (or in the event it is earlier terminated) and if requested by PEBB, Contractor shall administer all Benefits Claims through the applicable grace period and run out period. Contract termination will not extinguish or prejudice PEBB’s rights to enforce this Contract with respect to any default by Contractor that has not been cured.

5.2 Upon expiration or termination of this Contract, Contractor shall:

5.2.1 Promptly deliver to PEBB all of PEBB’s property (including, but not limited to any

Work or Work Products for which PEBB 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 PEBB property is expressed or embodied at that time;

5.2.2 Cease all activities under this Contract, except for those activities and obligations that survive termination under Section 5.1, unless PEBB expressly directs otherwise in such notice of expiration or termination; and

5.2.3 Upon PEBB ‘s request, surrender to anyone PEBB designates, all documents, research, or objects or other tangible things needed to complete the Work and the Work Products.

6. Rates

Contractor guarantees all fees, rates, retention, discounts, and other compensation elements set forth in Exhibit E, Rates, for the Work performed under this Contract through the term date described in the Contract Term section of the Contract. If the Board makes substantive changes to the Plan Benefits provided under this Contract, PEBB will work with Contractor to determine whether any updates to Exhibit E, Rates, will also be appropriate. Contractor understands and agrees that payment of amounts under this Contract are contingent on PEBB receiving appropriations, limitations, allotments or other expenditure authority sufficient to allow them, in the exercise of reasonable administrative discretion, to continue to make payments under this Contract.

7. Eligibility and Enrollment

Contractor shall provide services without discrimination to all Members, consistent with Exhibit C, Statement of Work. PEBB will furnish to Contractor a Member eligibility file in a manner consistent to that described in Exhibit C, Statement of Work.

8. Representations and Warranties (Non-Negotiable)

Contractor represents and warrants to PEBB that:

8.1 Contractor has the power and authority to enter into and perform this Contract.

8.2 This Contract, when executed and delivered, will be a valid and binding obligation of

Contractor enforceable in accordance with its terms.

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

8.4 Contractor shall, at all times during the term of this Contract, be qualified, professionally competent, and duly licensed to perform the Work.

8.5 Contractor prepared its proposal related to this Contract, if any, independently from all other

Proposers, and without collusion, fraud, or other dishonesty.

8.6 The representations and warranties set forth in this section are in addition to, and not in lieu of, any other representations and warranties set forth elsewhere in this Contract.

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

Attachment I, Pharmacy

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

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

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

8.7.4 Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions; and

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

9 Ownership of Work Product

9.1 All Work Product created by Contractor pursuant to the Work, including, but not limited to derivative works and compilations, and whether or not such Work Product is considered a work made for hire or an employment to invent, is the exclusive property of PEBB. PEBB and Contractor agree that such Work Product is “work made for hire” of which ORBB 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 PEBB 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 PEBB’s reasonable request, Contractor shall execute such further documents and instruments necessary to fully vest such rights in PEBB. 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.

9.2 Contractor Intellectual Property. In the event that a Deliverables delivered by Contractor under this Contract is or is a derivative work based on Contractor Intellectual Property, or is a compilation that includes Contractor Intellectual Property, Contractor hereby grants to PEBB 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 Deliverables, and to authorize others to do the same on PEBB’s behalf.

9.3 Third Party Intellectual Property. In the event that a Deliverables delivered by Contractor under this Contract is or is a derivative work based on Third Party Intellectual Property, or is a compilation that includes Third Party Intellectual Property, Contractor shall secure on the PEBB’s behalf and in the name of the PEBB 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 Deliverables, and to authorize others to do the same on PEBB’s behalf.

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

9.5 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 Contract.

9.6 Competing Services. Subject to the provisions of this Section 10, and Contractor’s obligations with respect to Confidential Information, including as defined in Section 10, nothing in this Contract precludes or limits in any way the right of Contractor to: (i) provide services similar to those contemplated in this Contract, or consulting or other services of any kind or nature whatsoever to any individual or entity as Contractor in its sole discretion deems appropriate, or (ii) develop for Contractor or for others, Deliverables or other materials that are competitive with those produced as a result of the Services provided hereunder, irrespective of their similarity to the Deliverables delivered pursuant to this Contract. 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 Contract free of any use restriction or payment obligation to the other.

10 Independent Contractor; Responsibility for Taxes and Withholding (Non-Negotiable)

10.1 Contractor shall perform all required Work as an independent contractor. PEBB reserves the rights to determine (and modify) the delivery schedule for the Work and to evaluate the quality of the completed performance; however, PEBB may not control the means or manner of Contractor’s performance. Contractor is responsible for determining the appropriate means and manner of performing the Work.

10.2 Contractor certifies that: (i) Contractor’s Work to be performed under this Contract creates no potential or actual conflict of interest as defined by ORS chapter 244; (ii) no statutes or rules of any State of Oregon agency, including PEBB, prohibit Contractor’s Work under this Contract; and (iii) Contractor is not an “officer,” “employee,” or “agent” of PEBB, as those terms are used in ORS 30.265.

10.3 Contractor is responsible for all federal or state taxes applicable to compensation or payments paid to Contractor under this Contract and, unless required by law, PEBB will not withhold from such compensation or payments any amounts 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.

11 Records Maintenance; Access (Non-Negotiable)

11.1 Contractor shall maintain all financial records relating to this Contract in accordance with generally accepted accounting principles. In addition, Contractor shall maintain any other records, books, documents, papers, plans, records of shipments and payments and writings of Contractor, whether in paper, electronic or other form, that are pertinent to this Contract (“Records”) in such a manner as to clearly document Contractor's performance. Contractor acknowledges and agrees that PEBB and the Oregon Secretary of State's Office and the federal government and their duly authorized representatives will have access to such financial records and other Records that are pertinent to this Contract, whether in paper, electronic or other form, to perform examinations and audits and make excerpts and transcripts. Contractor shall retain and keep accessible all such financial records and other Records for a minimum of 6 years, or such longer period as may be required by applicable law, following final payment and termination of this Contract, or until the conclusion of any audit, controversy or litigation arising out of or related to this Contract, whichever date is later.

11.2 Contractor shall allow PEBB to audit Benefit Claims and other records relating to this

Contract at any time, with personal identifiers removed. PEBB will have the right to audit any billings or examine any Records maintained pursuant to this Contract both before and after payment. PEBB may recover any excessive or illegal payment from Contractor regardless of PEBB’s payment of any amount under this Contract.

12 Oregon Law (Non-Negotiable)

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

12.2 Venue; Consent to Jurisdiction. Any claim, action, suit or proceeding between PEBB (or any other agency or department of the State of Oregon) and Contractor that arises from or relates to this Contract must be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon. CONTRACTOR, BY EXECUTION

OF THIS CONTRACT, HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION

OF SAID COURTS.

12.3 Immunities. In no event may this section be construed as (i) a waiver by the State of Oregon of any form of defense or immunity, whether it is sovereign immunity, governmental immunity, immunity based on the Eleventh Amendment to the Constitution of the United States or otherwise, from any claim, action, suit or proceeding, or (ii) consent by the State of Oregon to the jurisdiction of any court.

13 Reserved

14 Foreign Contractor (Non-Negotiable)

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 Work under this Contract in the State of Oregon prior to entering into this Contract.

15 Compliance with Applicable Law (Non-Negotiable)

15.1 Contractor shall comply with all federal, state, and local laws, administrative rules regulations, executive and emergency orders, administrative bulletins, and ordinances applicable to the Contract or the performance of the Work under the Contract. Without limiting the generality of the foregoing, Contractor expressly agrees to comply with the following laws, rules, and regulations to the extent applicable to the Contract:

15.1.1 Civil rights and employment laws including, but not limited to Titles VI and VII of the Civil Rights Act of 1964, as amended; Title V and Sections 503 and 504 of the Rehabilitation Act of 1973, as amended; the Americans with Disabilities Act of 1990 and ORS 659A.142, as amended; Executive Order 11246, as amended; the Age Discrimination in Employment Act of 1967, as amended, and the Age Discrimination Act of 1975, as amended;

15.1.2 Laws protecting privacy and security, including, but not limited to 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) (jointly referred to as “HIPAA”), including the Privacy and Security Rules found at 45 CFR Parts 160 and 164 (“Federal Privacy Rule”), as the law and its implementing regulations may be updated from time to time;

15.1.3 Laws protecting benefits rights of veterans, including, but not limited to the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 and the Uniformed Services Employment and Reemployment Rights Act of 1994, as amended; Section 188 of the Workforce Investment Act (WIA) of 1998, as amended;

15.1.4 Any Oregon state laws corresponding to or implementing the federal laws in this

Section 15;

15.1.5 The Patient Protection and Affordable Care Act (“ACA”);

15.1.6 The Consolidated Appropriations Act of 2021 (“CAA”);

15.1.7 The Oregon Consumer Identity Theft Protection Act, ORS 646A.600 to 646A.628, including, but not limited to the notice of breach of security provisions;

15.1.8 If Contractor is an insurance company, the Insurance Code as defined in ORS 731.004, or if Contractor is a health care service contractor within the meaning of ORS 750.005, the portions of the Insurance Code that ORS 750.055 applies to health care service contractors; and

15.1.9 All regulations and administrative rules established pursuant to the foregoing laws; and all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations

15.2 The above referenced laws, regulations, and executive orders are incorporated by reference if applicable to this Contract and required by law to be incorporated. Contractor shall require and ensure that each of its subcontractors complies with these requirements. A reference in this Contract to a provision of law means the provision in effect or as amended from time to time.

16 Privacy and Security (Non-Negotiable)

16.1 Contractor and its Affiliates and subcontractors shall comply with the laws, rules, and policies governing access to use of PEBB data, including as required in Exhibit F, Data Sharing, as they are stated elsewhere in this Contract, and as such laws, rules and policies are updated or otherwise made available to Contractor.

16.2 Contractor acknowledges and agrees that it is a “Covered Entity” and that it may, from time to time, enter into Subcontracts with a “Business Associate” as both such terms are defined under 45 CFR § 160.103. Accordingly, Contractor shall ensure it enters into Business Associate agreements with its Subcontractors when required under, and in accordance with, HIPAA.

16.3 Contractor shall provide PEBB’s Consultant access to PHI if PEBB’s Consultant executes a

Business Associate agreement with the Contractor.

16.4 HIPAA and the Federal Privacy Rule require that PEBB, as the Plan Sponsor, and Contractor ensure that Plan Documents restrict uses and disclosures of PHI consistent with the Federal Privacy Rule. This Contract is a Plan Document for the purposes of the Federal Privacy Rule.

For this Section 17, capitalized terms not elsewhere defined in this Contract have the meanings ascribed to them in HIPAA or the Federal Privacy Rule.

16.5 Contractor may provide PHI to PEBB, consistent with Sections 16.5 through 16.9, in addition to summary information upon PEBB’s request. Summary information provided to PEBB may only be used for the following purposes:

16.5.1 Performing contract administration functions, which PEBB performs for this

Contract;

16.5.2 Modifying, amending, or terminating this Contract.

16.6 PEBB may authorize Contractor to disclose PHI to PEBB for the purposes related to eligibility, enrollment or Benefit Claims resolution.

16.7 Contractor may disclose PHI to PEBB for purposes related to eligibility, enrollment, Benefit

Claims resolution or performing contract administration functions.

16.8 Contractor shall not disclose PHI to PEBB for the purpose of employment-related actions or other decisions in connection with any other benefit.

16.9 If PEBB notifies Contractor that PEBB has elected to be a “covered entity” within the meaning of HIPAA, Contractor may disclose to PEBB upon request such PHI as HIPAA permits to be disclosed to a covered entity.

17 Confidential Information (Non-Negotiable)

17.1 Confidential Information. Contractor acknowledges that it and its employees, officers, directors, agents or subcontractors (collectively, “Contractor Staff”) may, in the course of performing the Work under this Contract, be exposed to or acquire information that is confidential to PEBB or PEBB’s 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 Contract shall be considered for the purposes of this Contract the confidential information of PEBB (“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.

Confidential Information does not include information that (i) is or becomes (other than by disclosure by Contractor or Contractor Staff acquiring such information) publicly known or is contained in a publicly available document except to the extent applicable law still restricts disclosure; (ii) is furnished by Agency to others without restrictions similar to those imposed by this Contract; (iii) is rightfully in Contractor’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Contract; (iv) is obtained from a source other than Agency without the obligation of confidentiality, (v) is disclosed with the written consent of Agency, or; (vi) is independently developed by Contractor or Contractor Staff who can be shown to have had no access to the Confidential Information.

17.2 Non-disclosure. Contractor, its employees, agents, and subcontractors shall hold

Confidential Information in confidence, using the highest standard of care applicable, and shall not copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information to third parties (other than its authorized subcontractors), or use Confidential Information for any purposes whatsoever other than the provision of Services to PEBB or performance of the Work hereunder, and shall advise each of its employees and agents of their obligations to keep Confidential Information confidential. Contractor shall assist PEBB in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the generality of the foregoing, Contractor shall advise PEBB 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 Contract, and Contractor will at its expense cooperate with PEBB in seeking injunctive or other equitable relief in the name of PEBB or Contractor against any such person. Contractor shall not at any time during or after the term of this Contract, except as directed by PEBB, disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this Contract, and that upon termination of this Contract or at PEBB’s request, Contractor shall deliver to PEBB all documents, papers, and other matter in Contractor's possession that embody Confidential Information. Notwithstanding the foregoing and unless otherwise specified in this Contract, Contractor may keep one copy of such Confidential Information necessary for quality assurance, audits and evidence of delivery of the Services and performance of the Work.

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

17.4 Injunctive Relief. Contractor acknowledges that breach of this Section 10, including disclosure of any Confidential Information, will cause irreparable injury to Agency that is inadequately compensable in damages. Accordingly, Agency may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available. Contractor acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of Agency and are reasonable in scope and content.

17.5 Publicity. Contractor agrees that it will not disclose the form, content or existence of this

Contract or any Deliverables in any advertising, press releases or other materials distributed to prospective customers, or otherwise attempt to obtain publicity from its association with Agency or the State of Oregon, whether or not such disclosure, publicity or association implies an endorsement by Agency or the State of Oregon of Contractor’s services, without the prior written consent of Agency.

17.6 Contractor’s Proprietary Information; Oregon Public Records Law. PEBB will use reasonable efforts to maintain the confidentiality of any Proprietary Information received from Contractor and will not use such Proprietary Information except to fulfill its obligations under this Contract and applicable state and federal law. Contractor acknowledges and agrees that any obligation of PEBB to maintain the confidentiality of Contractor’s Proprietary Information is conditioned by and subject to PEBB’s obligations under the Oregon Public Records Laws, including ORS 192.311 to 192.478, which may require disclosure of Proprietary Information as a “public record” unless exempt under ORS 192.345 or ORS 192.355.

17.7 PEBB may disclose Contractor’s Proprietary Information to the extent disclosure is required by the Oregon Public Records Law (ORS 192.311-192.478). If PEBB receives from a third party any request under the Oregon Public Records Law for the disclosure of Contractor Proprietary Information, PEBB shall notify Contractor within a reasonable period of time of the request. Contractor is exclusively responsible for defending Contractor’s position concerning the confidentiality of the requested information. PEBB is not required to assist Contractor in opposing disclosure of Confidential Information. Notwithstanding the foregoing, while PEBB is not required to actively assist Contractor in opposing disclosure of Proprietary Information, PEBB will cooperate in good faith to the extent reasonably practicable with Contractor’s efforts to protect its Proprietary Information.

17.8 PEBB is not required to return or destroy Proprietary Information if to do so would violate public records retention requirements under ORS chapter 192.

18 Indemnity (Non-Negotiable)

18.1 Claims. Contractor shall defend, save, hold harmless, and indemnify the State of Oregon and PEBB and their officers, employees and agents from and against all third party claims, suits, actions, losses, damages, liabilities, costs (including attorneys’ fees) and expenses (collectively, "Claims") 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 Contract, including but not limited to, unauthorized disclosure of Confidential Information, professional malfeasance, infringement of intellectual property rights, intentional, willful, or wanton wrongful acts, and acts outside the scope of Work set forth in this Contract.

18.2 Legal Counsel. If Contractor is required to defend the State of Oregon or Agency or their officers, employees or agents under this Section, then Contractor shall select legal counsel reasonably acceptable to the Oregon Attorney General to act in the name of, or represent the interests of, the State of Oregon, Agency or their officers, employees and agents. Such legal counsel must accept appointment as a special assistant attorney general under ORS chapter 180 before such action or representation. Further, the State of Oregon, acting by and through its Department of Justice, may assume its own defense, including that of its officers, employees and agents, at any time when in the State of Oregon's sole discretion it determines that (i) proposed counsel is prohibited from the particular representation contemplated; (ii) counsel is not adequately defending the interests of the State of Oregon or its officers, employees and agents; (iii) important governmental interests are at stake; or (iv) the best interests of the State of Oregon are served thereby. Contractor's obligation to pay for all costs and expenses includes those incurred by the State of Oregon in assuming its own defense or that of its officers, employees, and agents under (i) and (ii) above.

18.3 CONTRACTOR IS NOT AUTHORIZED TO SETTLE OR COMPROMISE ANY CLAIM

REFERENCED IN THIS SECTION WITHOUT THE EXPRESS WRITTEN CONSENT OF

PEBB.

18.4 PEBB is not responsible for the provision of Benefit Plans and Benefit Claim services by Providers, and Providers furnishing services under this Contract are not PEBB agents. In no event shall indemnity obligations under this Contract apply to that portion of any liability, settlement, and related expense caused by malpractice or the acts or omissions of Providers with respect to PEBB.

19 Insurance (Non-Negotiable)

Contractor shall maintain insurance as set forth in Exhibit G.

20 Subcontracts, Successors, and Assignments. (Non-Negotiable)

20.1 Subcontracts (Not applicable to Network Providers or Network Pharmacy). Contractor shall not enter into any subcontracts for any of the Work required by this Contract without PEBB’s prior written consent. In addition to any other provisions PEBB may require, Contractor shall include in any permitted subcontract under this Contract provisions to ensure that PEBB will receive the benefit of subcontractor’s performance as if the subcontractor were Contractor.

PEBB’s consent to any subcontract does not relieve Contractor of any of its duties or obligations under this Contract.

20.2 Successors and Assigns. The provisions of this Contract are binding upon and inure to the benefit of the parties to this Contract, their respective successors, and permitted assigns, if any.

20.3 No Assignment. Contractor shall not assign or transfer any of its rights or delegate its obligations under this Contract without PEBB’s prior written consent.

21 Survival

All rights and obligations cease upon termination or expiration of this Contract, except for the rights and obligations and declarations which expressly or by their nature survive termination of this Contract, including without limitation this Section 21, and provisions regarding Contract definitions, warranties and liabilities, independent Contractor status and taxes and withholding, maximum compensation, Contractor’s duties of confidentiality, ownership and license of intellectual property and Deliverables, confidentiality and non-disclosure, Contractor’s representations and warranties, control of defense and settlement, remedies, return of PEBB property, dispute resolution, order of precedence, maintenance and access to records, notices, severability, successors and assigns, third party beneficiaries, waiver, headings, and integration.

22 Notice

22.1 Except as otherwise expressly provided in this Contract, any communications between the parties hereto or notices to be given hereunder will be given in writing by email, personal delivery, or mailing through U.S. mail and postage prepaid, to Contractor or PEBB at the address, number or email address set forth in this Contract, or to such other addresses or numbers as either party may indicate pursuant to this Section. All such communications or notices shall be deemed given and effective as follows:

22.1.1 Via U.S. postal service: effective seven (7) calendar days after mailing.

22.1.2 Via personal delivery: effective when actually delivered.

22.1.3 Via email: any notice given by email is effective when the sender receives confirmation of delivery, either by return email, or by demonstrating through other technological means that the email has been delivered to the intended email address.

22.2 Contractor’s Notice Contact Information

Company Name:

Attn: Contact Person Phone:

Email:

22.3 PEBB’s Notice Contact Information

Oregon PEBB Attn: PEBB/PEBB Contracts Team 500 Summer St NE – Dept. 89 Salem, Oregon 97301-1094 Phone: TBD Email: TBD

23 Entire Contract (Non-Negotiable)

This Contract and its attached Exhibits A through I constitute the entire agreement between the parties (the “Contract”). Communication materials prepared by PEBB or Contractor for distribution to do not constitute a part of this Contract unless part of an Exhibit to this Contract.

There are no understandings, agreements, or representations, oral or written, not specified herein regarding this Contract.

24 Order of Precedence (Non-Negotiable)

The parties agree Exhibits identified in Section 24 are by this reference incorporated into and comprise the Contract. To the extent provisions contained in more than one of the foregoing Group Benefits Contract and exhibits apply in any given situation, the parties agree: (i) to read such provisions together whenever possible to avoid conflict, and (ii) to apply the following descending order of precedence only in the event of an irreconcilable conflict:

The Group Benefits Contract - without exhibits Exhibit A - Legal Terms and Conditions Exhibit B – Definitions Exhibit C – Statement of Work Exhibit D – Reporting and Performance Guarantees Exhibit E – Rates Exhibit F – Data Sharing Exhibit G – Insurance Requirements Exhibit H – Independent Contractor Certification Exhibit I – Companion Guide

25 Waiver (Non-Negotiable)

No waiver, consent, modification or change of terms of this Contract will bind the parties unless in writing and signed by both parties and all necessary State approvals have been obtained in writing.

Such waiver, consent, modification, or change, if made, will be effective only in the specific instance and for the specific purpose given. The failure of PEBB to enforce any provision of this Contract in one instance will not constitute a waiver by PEBB of its right to enforce that or any other provision.

26 Amendments

26.1 Any change or amendment to this Contract must be approved by an officer of Contractor, an officer of PEBB, and, if applicable, the Oregon Attorney General and must also refer specifically to this Contract to be valid. No amendment to this Contract is effective unless it is in writing signed by the parties, and all approvals required by applicable law have been obtained before becoming effective.

26.2 The parties may amend the Contract to change rates and fees and add additional program requirements. No amendment to this Contract is effective unless it is in writing signed by the parties, and has been approved as required by applicable law. PEBB will not pay Contractor for Work performed before the Contract Effective Date or after the expiration or termination hereof.

26.3 PEBB may amend this Contract to the extent provided in the Request for Proposals from which this Contract arose, and to the extent permitted by applicable statutes and administrative rules.

27 Force Majeure (Non-Negotiable)

Neither PEBB nor Contractor will be liable to the other for any delay or failure of any performance of any the obligations under this Contract when such failure or delay is wholly or primarily caused by acts or events beyond their reasonable control, including, fire, riot, acts of God, terrorist acts, acts of political sabotage, acts of civil or military authority, war, or floods, wildfire, floods, earthquake, volcanic eruptions, or other similar natural disasters. Except as expressly provided otherwise in this Section, Contractor shall make all reasonable efforts to remove or eliminate such cause of delay or default and shall, upon the cessation of the cause, diligently pursue performance of its obligations under this Contract. In addition to the foregoing, Contractor shall use its greatest possible efforts to make its Plan Benefits and services, and similar emergency services promptly available in the event of an incident requiring them.

28 No Third Party Beneficiaries (Non-Negotiable)

PEBB and Contractor are the only parties to this Contract and are the only parties entitled to enforce the terms of this Contract. Nothing in this Contract gives, is intended to give, or will be construed to give or provide any benefit or right not held by or made generally available to the public, whether directly, indirectly, or otherwise, to third persons unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Contract.

Attachment I, Pharmacy

29 Severability (Non-Negotiable)

If any term or provision of this Contract is declared by a court of competent jurisdiction to be illegal or otherwise invalid, the validity of the remaining terms and provisions will not be affected, and the rights and obligations of the parties will be construed and enforced as if the Contract did not contain the particular term or provision held to be invalid.

30 Code of Conduct (Non-Negotiable

The following terms and conditions supplement and do not replace any provisions required by the rules or policies of PEBB:

30.1 Prohibited Practices. Except as disclosed in writing to and accepted or authorized in writing by PEBB, or as otherwise expressly permitted or required by this Contract, Contractor shall not, and shall assure that its Affiliates shall not, in any way:

30.1.1 Take unfair advantage of PEBB through manipulation, concealment, abuse of privileged information, misrepresentation of material facts or any other unfair practice.

30.1.2 Mislead PEBB through deceptive acts or practices, false advertising claims, misrepresentations regarding Contractor’s services.

30.1.3 Engage in any conduct, conspiracy, contract, agreement, arrangement or combination, or adopt or follow any practice, plan, program, scheme, artifice or device similar to, or having a purpose and effect similar to, the conduct prohibited above.

30.2 Conflicts of Interest. To maintain independence of judgment and action, Contractor and Affiliates shall avoid conflict of interest or an appearance of conflict that might arise because of economic or personal self-interest, except as disclosed in writing to and consented in writing by PEBB. The Contractor’s disclosure to PEBB may include suggestions for mitigating or managing a conflict of interest, such as communications barriers with conflicted individuals. While it is impossible to list all situations that could constitute a conflict of interest, the following are some common examples:

30.2.1 Using property or non-public information of PEBB or an Affiliate’s position with or relationship with Contractor, for personal gain of the Contractor or Affiliate (other than compensation to Contractor expressly provided in the Contract).

30.2.2 Having an ownership or economic interest in a company that does business with a Vendor or with Contractor or an Affiliate, where the owner or interested person is in a position to influence Contractor’s or PEBB’s relationship with the company.

Attachment I, Pharmacy

30.2.3 Having the representative of a Contractor or Vendor to the State of Oregon be a family member of an employee of the State of Oregon who has authority over the Contractor or Procurement.

30.2.4 A Contractor or Affiliate employing a former employee of the State of Oregon who assisted in preparing the Procurement.

30.3 Use of Funds or Assets. To the extent it uses funds and assets of the State of Oregon under the Contract, Contractor shall not, directly or indirectly:

30.3.1 Use funds or assets for any purpose which would be in violation of any applicable law or regulation.

30.3.2 Make contributions to any political candidate, party, or campaign either within or without the United States.

30.3.3 Establish or maintain a fund, asset, or account that is not recorded and reflected accurately on the books and records of Contractor or the State of Oregon.

30.3.4 Make false or misleading entries in the books and records of Contractor or the State of Oregon, or omit to make entries required for these books and records to be accurate and complete.

30.3.5 Effect a transaction or make a payment with the intention or understanding that the transaction or payment is other than as described in the documentation evidencing the transaction or supporting the payment.

30.4 Arms’ Length Transactions. Except as authorized in writing by PEBB, Contractor shall assure that all relationships with its Affiliates and subcontractors relating to the State of Oregon are conducted at arms-length using criteria approved by PEBB and are based on fairness and the best interests of PEBB.

30.4.1 In any dealings with a supplier, customer, government official, or other person or entity, Contractor or its Affiliate shall not request, accept, or offer to give any payments, gifts, trips, kickbacks, or other significant things of value, the purpose or result of which could be to influence the bona fide Benefit Plan program benefit received by PEBB or that may be construed as swaying PEBB Procurement of the Benefit Plan program based on other than the merits of the Benefit Plan program and the evaluation criteria in the Procurement. For this purpose, a “significant thing of value” will mean a thing that a person could not lawfully receive or be given as an employee of PEBB under ORS chapter 244.

Attachment I, Pharmacy

30.4.2 In any dealings with a supplier, customer, government official, or other person or entity for or on behalf of PEBB or in connection with a Procurement, Contractor and its Affiliates shall not exchange business gifts, meals, entertainment, or other business courtesies that are intended to interfere, or are in a magnitude that may have the effect of interfering, with the recipient’s duty to act in the best interests of PEBB or to interfere with the recipient’s business judgment.

30.5 Representation and Warranty of Compliance. Contractor represents and warrants to PEBB that Contractor and its Affiliates complied with the Code of Conduct in this Section 30 in connection with the RFP under which this Contract was issued. The provisions of this Section 30 Code of Conduct do not alter any stricter or different guidelines or prohibitions of

PEBB.

30.6 Oregon False Claims Act. Contractor acknowledges the Oregon False Claims Act, ORS

180.750 to 180.785, applies to any action by Contractor pertaining to this Contract, including the procurement process relating to this Contract, that constitutes a "claim" (as defined by ORS 180.750(1)). By its execution of this Contract, Contractor certifies the truthfulness, completeness, and accuracy of any statement or claim it has made, it makes, it may make, or causes to be made that pertains to this Contract.