Attachment_16-B_Sample_Long-Term_Contract_Final.docx
DOCX document 283 KB Posted
- Attached to
- Mobile App Replacement
- Solicitation number
- S-177000-00016166
- Issued by
- Marion County, Oregon
About this file
This document is a Sample Long-Term Contract Master Agreement between the State of Oregon, acting through its Oregon State Lottery Commission, and a contractor for System Planning, Implementation, Support, and Maintenance services related to a Mobile App Replacement and Associated Technology Solutions. The master agreement establishes the framework for an initial term with potential extension periods of up to multiple years, with the specific commencement and expiration dates to be determined in separately executed Transaction Documents. The contractor will provide comprehensive services including project management, change management, planning, solution requirements and specifications, implementation services, and ongoing support and enhancement services. Deliverables and specific service requirements will be detailed in individual Transaction Documents negotiated between the parties, with each Transaction Document specifying its own effective date, expiration date, detailed Statement of Work, and service specifications. The contract structure allows for multiple Transaction Documents to be executed sequentially during the term, with the Master Agreement serving as the overarching terms and conditions document that governs all individual transaction agreements.
Key financial and operational terms include compensation to be specified in each Transaction Document based on rates and prices set forth in Schedule 6, with rate increase requests limited to the lesser of three percent or the percentage increase in the National Producer Price Index for IT technical support and consulting services. The Oregon State Lottery Commission retains ownership of all Lottery Data and intellectual property, while the contractor retains ownership of its pre-existing intellectual property but grants perpetual, non-exclusive licenses for deliverables created under the agreement. The contractor must obtain and maintain Professional Liability Insurance of not less than $5,000,000 per claim, Commercial General Liability Insurance of not less than $2,000,000 per occurrence, and Automobile Liability Insurance with combined single limits of not less than $2,000,000. All contractor personnel providing services must complete security background investigations in accordance with Oregon Administrative Rule 177-037, and the agreement includes provisions for service level credits and incentives, detailed change control procedures, comprehensive security and data protection requirements, and termination for cause or convenience by the Lottery with potential transition service periods of up to 365 days.
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ATTACHMENT 16 – B
SAMPLE LONG TERM CONTRACT
MASTER AGREEMENT SYSTEM PLANNING, IMPLEMENTATION, SUPPORT, AND MAINTENANCE MASTER AGREEMENT This System Planning, Implementation, Support and Maintenance Master Agreement, including all exhibits and schedules attached (this “Master Agreement”) is dated as of (the “Effective Date”) and is between the State of Oregon acting by and through its Oregon State Lottery Commission (“Lottery”) and , a corporation (“Contractor”). Lottery and the Contractor each shall be referred to herein individually as a “Party” and together, the “Parties”. Capitalized terms have the meanings assigned to them in this Master Agreement.
RECITALS
1. Lottery desires to engage a Contractor to provide an initial set of services that may include providing project management, change management, planning, solution requirements and specifications, and implementation services as well as ongoing support and enhancement services for a Mobile App Replacement and Associated Technology Solutions (the “Application Services” as defined below) to enable Lottery to achieve specific business and Lottery mission objectives defined in this Master Agreement. To that end, Lottery issued RFP #.
2. Contractor is a successful proposer to the RFP and Lottery desires Contractor to perform the Services.
3. Contractor desires to perform the Services for Lottery.
4. Lottery wishes to engage Contractor for, and Contractor wishes to provide to Lottery, comprehensive services as described in this Master Agreement, and in separately executed Transaction Documents (defined below). The Parties intend that Contractor will make available to Lottery all necessary human resources, as well as all expertise, in collaboration with Lottery and its vendors and contractors necessary to fulfill its obligations set forth in this Master Agreement and in each Transaction Document.
In consideration of the mutual agreements contained in this Master Agreement, the sufficiency of which is acknowledged, Lottery and Contractor agree as follows:
AGREEMENT
1. Structure and Purpose of Master Agreement.
| General. This Master Agreement together with each Transaction Document (defined below) specify the terms and conditions applicable to the Parties’ relationship related to the implementation and operation of the Services, the process and form to be used to negotiate and execute Transaction Documents between the Parties for (i) planning services, implementation services, maintenance and support services, and (ii) other services related to the ongoing operations of the Application Services (altogether, “Services”), and any deliverables associated with these Services (as specified in more detail in Transaction Documents, the “Deliverables”). |
| Transaction Documents. From time to time during the Term, Lottery may wish to procure additional Services, Deliverables, or both, from Contractor. Upon Lottery’s request, Lottery and Contractor will negotiate and enter into additional individual binding and enforceable transaction documents that provide for Contractor’s delivery of specific Services and Deliverables, and Lottery’s payment therefore, substantially in the form attached to this Master Agreement as Schedule 2 (each, a “Transaction Document). |
| Reserved. |
| Transaction Document Requirements. Lottery may initiate a request for Services, Deliverables, or both, by sending Contractor a request to negotiate a Transaction Document for Services and Deliverables identified with reasonable specificity. The Parties will negotiate the Services and Deliverables to be provided, specifications, requirements, time frames, compensation and any other considerations related to the specific Services and Deliverables that are the subject of the Transaction Document. |
| Transaction Document Terms. Each Transaction Document must incorporate by reference, and will be subject to, the terms and conditions of this Master Agreement. This Master Agreement and each Transaction Document will be interpreted as a single agreement so that all provisions are given as full effect as possible. Each Transaction Document must specify its effective date (the “Transaction Document Effective Date”) and expiration date (the “Transaction Document Expiration Date”) and must incorporate a detailed Statement of Work that clearly specifies all required Services and Deliverables. Each Transaction Document may also include other terms and conditions negotiated by the Parties specific to the Services and Deliverables described in the Transaction Document. Each duly executed Transaction Document shall be sequentially numbered, the first such Transaction Document, as Transaction Document 1, followed by Transaction Document 2, 3, etc.. |
| Order of Precedence. In the event of a conflict between this Master Agreement and any Transaction Document, the order of precedence will be as follows (items with a lower number having priority over, and controlling in the event of a conflict with, items having a higher number): |
(1) the applicable Transaction Document, including its Exhibits and Schedules (but only in respect of Services to be performed and Deliverables to be delivered under such Transaction Document);
(2) the Master Agreement; and (3) the Exhibits, Schedules and attachments to the Master Agreement.
2. Term, Extension of Master Agreement and Transaction Documents
| Initial Term. The term for the Master Agreement commences on the Effective Date, and unless earlier terminated or extended as provided herein, this Master Agreement shall expire on the later of (a) | , or (b) the expiration or termination every Transaction Document in effect as of |
| (the “Initial Term”). | |
| Extension Term. As set forth in Section 2.4, and subject to the limitations set forth therein, the Parties may extend the Initial Term for a total of year terms (each, an “Extension Term”). The Initial Term and any Extension Term are referred to as the “Term.” | |
| Reserved. | |
| Renewals. Not more than nine (9) months but not less than six (6) months before the expiration of the then current Term, Contractor shall notify Lottery in writing whether it wishes to extend the Term (for avoidance of doubt by extending the expiration date of the Master Agreement, any then current Transaction Documents, or both). If Lottery also wishes to extend the Term, then the Parties shall negotiate in good faith to extend the Term and to renegotiate any terms and conditions of this Master Agreement (including any Transaction Document as applicable) as the Parties deem |
appropriate. If Contractor fails to notify the Lottery within the time periods set forth in this section, then Lottery may, by giving notice to Contractor no later than the end of the then current Term, extend the Term of this Master Agreement and the term of any then-effective Transaction Document for a period of up to one year on the same terms and conditions then in effect.
| Expiration. If the Parties are unable to agree to the terms and conditions of any extension or renewal, the Master Agreement will terminate at the end of the then current Term, subject to Lottery’s right to request Transition Services pursuant to Section 5. For the avoidance of doubt, the termination or expiration of a Transaction Document shall not cause the termination of the Master Agreement. However, all Transaction Documents shall immediately terminate upon the effective termination of this Master Agreement, except as may be otherwise specifically set forth in a Transaction Document. |
| Rights Following Termination. No expiration or termination of this Master Agreement or any Transaction Document will affect any accrued rights or obligations of either Party as of the effective date of such termination, nor will it affect any rights or obligations of either Party that are intended by their nature to survive any such termination. |
3. Definitions. Defined terms used in this Agreement or in a Transaction Document have the meanings set forth in Schedule 1 (Definitions) or in the applicable Transaction Document.
4. Relationship Management and Personnel; Background Checks.
| Key Persons. Contractor acknowledges and agrees that a significant reason Lottery selected Contractor and is entering into this Master Agreement and Transaction Documents hereunder is the special qualifications of each Key Person. Accordingly, Lottery is engaging the expertise, experience, judgment, and personal attention of such Key Persons designated in Schedule 3 to this Master Services Agreement. In addition, the Parties may designate specific Key Persons in any Transaction Document entered into under this Master Agreement. A Key Person under this Master Agreement and any applicable Transaction Document shall be Lottery’s main point of contact for Contractor for the area of expertise applicable to that Key Person. |
| Obligations of Key Persons. Contractor shall ensure that its Key Persons identified in Schedule 3 of this Master Agreement or in a Transaction Document are available and responsive in a timely and effective manner to facilitate timely delivery of Services and Deliverables, including meetings and conference calls, and other forms of communication related to the Services and Deliverables. Contractor shall ensure that its Key Persons and all other personnel assigned to provide Services and Deliverables timely respond to email, and other communications related to the Services and Deliverables. Contractor shall provide Key Persons, personnel and resources to Lottery throughout Lottery’s Business Day. Contractor agrees that it will not reassign such Key Persons without notifying Lottery and obtaining Lottery’s consent, which will not be unreasonably withheld or delayed. Contractor warrants that all Key Person replacements will have comparable skill, experience and familiarity, to the extent reasonably possible, with the Services and their related processes. Lottery may, at any time during the Term and at its sole discretion, notify Contractor that it will no longer accept Services provided by particular Key Person, in which case Contractor will replace such personnel with personnel who possess requisite skills so that the effectiveness of Service delivery is not compromised. |
| Cooperation with Other Lottery Contractors. Contractor shall cooperate fully and in good faith with all other Lottery contractors, as necessary, to deliver all Services and Deliverables as set forth in this Master Agreement and any Transaction Document. |
| Background Investigations. |
4.4.1 Oregon Administrative Rule Requirement. This Master Agreement has been classified by Lottery as a Major Procurement in accordance with OAR 177 division 37. Therefore, Contractor shall complete, and shall cause its control persons (“Control Persons,” as defined in ORS 461.410), sub-contractors and employees performing Services (together, “Subject Persons”) to complete, a security background investigation performed by Lottery's Security Section and continually report, during the term of this Agreement, to Lottery's Security Section, pursuant to OAR 177-037. This investigation may include, but may not be limited to, the completion of forms that will be provided by Lottery and a finger-print background investigation. Additionally, Contractor shall comply, and shall cause the aforementioned individuals who have successfully completed the initial security background investigation performed by Lottery's Security Section to comply, with all continuing disclosure obligations pursuant to OAR 177-037.
4.4.2 Continuing Disclosure Obligations. Contractor shall comply with the continuing disclosure requirement under OAR 177-037-0030(3). Contractor shall report, and shall cause all Subject Persons to report, any change in, addition to, or deletion from, the information disclosed to Lottery for purposes of any background investigation conducted by Lottery’s Security Section. Contractor shall deliver, and shall cause all Subject Persons to deliver, such report in the form of a letter addressed to Lottery and to the attention of Lottery’s Assistant Director of Security within thirty (30) Days following the effective date of the change, addition, or deletion. In particular, Contractor shall report the involvement of any Subject Person or of Contractor’s employees performing Services in connection with this Master Agreement or any Transaction Document in any known criminal arrest (exclusive of minor traffic violations) or investigation. Lottery may provide, and Contractor and each Subject Person shall complete and return to Lottery, additional forms that Lottery, through its Security Section, may require for ongoing background investigations and information updates.
4.4.3 Effect of Background Investigation Results. If at any time Lottery obtains information about any Subject Person and reasonably concludes that Lottery’s fairness, integrity, security or honesty may be adversely affected due to the substance of the information, Lottery shall notify Contractor and give Contractor forty-five (45) Days to address such information, after which time Lottery may immediately terminate this Master Agreement or any Transaction Document for cause if the Contractor fails to address such situation and the Lottery reasonably determines termination is necessary to protect its fairness, integrity, security or honesty. If at any time Lottery obtains information about any Subject Person and reasonably concludes that Lottery’s fairness, integrity, security or honesty is in imminent harm due to the substance of the information, and cure is impossible, Lottery may immediately terminate this Master Agreement or any Transaction Document for cause.
4.4.4 Classification of Future Transaction Documents. Lottery may classify a Transaction Document as a “Major Procurement,” for purposes of these disclosure obligations, in which case any additional or different disclosure obligations shall be set forth in the applicable Transaction Document.
Reserved.
5. Transition Upon Termination of Master Agreement.
| Transition Generally. Contractor shall provide reasonable cooperation fully and in good faith with any conversion of the Application Services to a replacement system or transition of the support for and other Services related to the Application Services provided pursuant to this Master Agreement to another service provider or to the Lottery upon the expiration or termination of this Master Agreement. Contractor shall remove all of Contractor’s equipment and materials relating to the Services from Lottery property after completion of the transition activities provided under this Section 5 on a mutually agreed schedule, within a reasonable time period as set by Lottery. Upon at least five business days prior written notice, Lottery may, at Contractor’s expense, dispose of any equipment and materials not so removed by Contractor. Contractor is obligated to perform the duties under this Section 5 regardless of whether the Master Agreement expires or is terminated. |
| Extension of Termination Date. Notwithstanding the expiration or any notice of termination, or the basis for termination set forth therein, Lottery may, at its sole discretion, extend the Term of the Master Agreement and any or all then current Transaction Documents one or more times as it elects in its discretion, for purposes of affecting an orderly transition of the Services and the functions performed by the Application Services to Lottery or another provider; provided that the total of all such extensions shall not exceed 365 Days following the end of the Term in place immediately prior to the initial extension under this Section (all such extensions, the “Transition Period”). Lottery will provide notice of an extension under this Section to Contractor within 30 (thirty) Days of the then-scheduled Master Agreement or Transaction Document termination date. |
| Obligations during Transition Period. During the Transition Period Contractor shall continue to provide the Services and Deliverables under the Master Agreement and set forth in the affected Transaction Documents, for the same rates and at the same Service Levels in effect as of the Day immediately preceding the first day of the Transition Period; provided that at Contractor’s request, Lottery will pay in advance for Services performed during the Transition Period if either or both of the following conditions exist: |
5.3.1.1 Lottery is not up-to-date with its undisputed payment obligations at the commencement of the Transition Period;
5.3.1.2 Lottery fails to pay all undisputed invoices during the Transition Period in accordance with its obligations referenced in this Section 5.
If during the Transition Period Contractor believes Lottery is not in compliance with the foregoing conditions, Contractor shall give Lottery written notice of such noncompliance and Lottery will have 15 Business Days, or such longer period to which the Parties may agree, to either make an advance payment of Services for the one-month period following the date of Contractor’s notice or pay any undisputed invoices.
| Additional Services During Transition Period. Prior to or at any time during the Transition Period Lottery may, pursuant to the Change process set forth in Section 6 of this Master Agreement, request that Contractor enter into a Change Order under which Contractor will provide additional assistance to Lottery to assist in the transition of the Services provided under the Master Agreement and Transaction Documents to Lottery or a third party, for avoidance of doubt, upon agreement of all terms and conditions including without limitation compensation. | |
| Contractor Staff. During the Transition Period Contractor shall not, without Lottery’s prior written consent, which will not be unreasonably withheld, transfer, reassign, or otherwise redeploy any Contractor Staff from providing Services under the Master Agreement and any Transaction Documents in effect during the Transition Period. |
| Transition Services. Services provided by Contractor pursuant to this Section 5 shall be referred to herein and in Transaction Documents as “Transition Services.” | |
| Exception. The provisions of this Section 5 do not apply to any termination of this Master Agreement unless Contractor has entered into one or more Transaction Documents. | |
| 6. Change Control. If for any reason either Party believes that it is necessary or desirable that Contractor make a change, modification, enhancement, upgrade, expansion or addition to the Services, or any Deliverable (a “Change”) then the Parties shall follow the process described in this Section 6. | If Lottery wants to have Contractor deliver a Change, then Lottery shall submit a written request for the Change with high-level requirements (a “Change Request”) to Contractor, and Contractor shall have twenty (20) Business Days from the Day it receives the Change Request to respond to the Change Request with a proposed written change order (a “Change Order”). If Contractor wants to deliver a Change, then Contractor shall submit a proposed Change Order to Lottery. Lottery will review the proposed Change Order and give notice to Contractor within twenty (20) Business Days from the Day it receives the Change Order whether Lottery will agree to negotiate the proposed Change or whether it will reject the proposed Change. Each Change Order shall address the following matters in writing to the extent applicable: |
(1) the technical feasibility and commercial viability of the Change;
(2) the high-level specifications for the Change;
(3) the impact of the Change on the applicable delivery or project schedule;
(4) a proposed schedule for the design, development, installation, implementation, testing and acceptance of the Change;
(5) the compensation payable by Lottery to Contractor for the Change and the terms of payment therefor;
(6) the party responsible for the costs of obtaining regulatory approval of the Change (if required); and
(7) any other terms and conditions applicable to the Change.
The Parties shall negotiate in good faith mutually acceptable terms and conditions of each Change Order. Once the Parties have agreed to and signed the Change Order, Contractor shall deliver the Change pursuant to the Change Order.
7. Security and Business Continuity Security Generally. When the Services required by a Transaction Document require configuration of the Application Services Contractor shall configure the Application Services to materially comply with the following:
7.1.1 Lottery’s Cloud Security SaaS Guidelines set forth in Schedule 4-A, and Lottery’s Cloud Applications Technical Guidance in set forth in Schedule 4-B;
7.1.2 All Lottery Data either stored or processed within the Application Services must be encrypted both when in transit and at rest, and stored on services located within the continental United States.
Additional Security Measures. Contractor shall implement and comply with any additional security measures applicable to the Application Services and the Services generally as set forth in a Transaction Document agreed to by the Parties.
Contractor’s Security and Business Recovery Obligations.
7.3.1 Operations Security Plan. Contractor shall develop and maintain a security plan for the entire Application Services that includes any such plan related Lottery’s use of the Application Services, as well as the specific steps that Contractor will take to ensure the security of the Application Services.
7.3.2 Business Recovery and Continuity. Contractor shall develop and maintain a business recovery plan applicable to Lottery’s use of the Application Services, as well as the specific steps that Contractor will take to ensure the continued operation of the Application Services.
| Force Majeure. If either Party is rendered unable to perform its obligations under this Master Agreement or any Transaction Document for reasons similar to acts of god, riot, war, terrorism, civil unrest, flood, earthquake, government fiat or acts beyond the reasonable control of either Party (“Force Majeure Event”), then during the pendency of such Force Majeure Event, but for no longer period, the obligations of such Party will be suspended (or reduced, as applicable) to the extent the Force Majeure Event makes such performance impossible. During a Force Majeure Event, Contractor shall use commercially reasonable efforts to continue to perform its obligations under this Master Agreement and each Transaction Document. If a Force Majeure Event occurs, Lottery is obligated to pay for only those Deliverables and other Services actually delivered and accepted by Lottery. |
| Notification of Breach. Contractor must promptly disclose to Lottery logical or physical security breaches (e.g., data breach, ransomware, business email compromise, intellectual property theft, credential theft, burglary, etc., whether occurring with respect to the Application Services or otherwise) that actually result in, or Contractor has knowledge of, and reasonably believes will likely result in, any unauthorized disclosure of any Lottery Confidential Information, whether criminal or accidental in nature. Contractor will provide, and will cause its subcontractors to provide, detailed information as to the nature and extent of the event, including mitigation and remediation efforts, and allow Lottery access to any and all mitigation and remediation reports associated with the incident. If Lottery determines that the breach requires notification of Lottery end users or employees, or other notification required by applicable law, Lottery will have sole control over the notification content, timing, and method, subject to Contractor’s obligations under applicable law. |
8. Ongoing Operations of Application Services
| Software Corrections and Updates and Enhancements After Go-Live. Contractor shall manage updates and enhancements to the Application Services in accordance with the release schedule of the provider of the Application Services. The implementation of any such updates and enhancements in accordance with either a Transaction Document that provides for such implementation, or as set forth in Section 6 above as Changes and as set forth below and shall follow the Release Management process set forth in the Statement of Work to the Transaction Document. Software corrections and updates that are contractually required and enhancements that exceed or differ from then current Specifications shall be delivered through Releases. Each Release will be delivered pursuant to agreed terms including schedule, scope, software priority (high medium or low) and compensation for any enhancements included in the Release. |
| Approval of Modifications. Contractor shall not introduce to the production Application Services any untested, unapproved modifications. The Lottery must approve any Contractor serviced upgrade or change made to the Application Services after the Go-Live Date, including changes and revisions impacting configurations, and must be approved as specified in the relevant Transaction |
Document or Change Order before introduction into the production environment. Contractor shall use the process specified in the Statement of Work to the Transaction Document to ensure that neither Contractor or any third party introduce unauthorized modifications to the Application Services.
Continued Support and Maintenance
8.3.1 Contractor shall maintain all software and services, including settings, workflows, and any other software or service configuration provided by Contractor in good working order at all times, as set forth in more detail in the SOW to the Transaction Document. The Contractor shall maintain current documentation for its provided software and services. To the full extent permitted by or available in the Application Services, all modifications to software and services will have an auditable documentation trail, and Contractor will maintain at a minimum the software and code for the prior two deployments for the purposes of restoring to working condition software and services provided by Contractor while maintenance, troubleshooting, upgrading, and validation occurs.
8.3.2 Contractor shall provide Application Services support as specified in and subject to the terms and conditions set forth in a Transaction Document.
Contractor’s Reporting Obligations. Contractor shall comply with all reporting obligations set forth in this Master Agreement and in each Transaction Document.
9. Service Levels; Service Credits and Service Incentives.
| Service Levels and Performance Expectations. Contractor will perform the Services set forth in each Transaction Document in accordance with the Service Levels set forth in each Transaction Document. |
| Reports. Contractor will provide Lottery with periodic reports on Contractor’s compliance with the Service Levels as set forth in the applicable Transaction Document upon request of the Lottery. |
| Root-Cause Analysis. If Contractor fails to provide the Services in accordance with the Service Levels, Contractor will (1) promptly investigate, perform a root cause analysis on the failure as appropriate, (2) identify the problem causing the failure and report to Lottery, (3) correct the problem as soon as practicable and resume meeting the Service Levels, (4) advise Lottery of the status of the problem at stages determined by Lottery and (5) demonstrate to Lottery that all reasonable action has been taken to prevent any recurrence of such default or failure. |
| Service Level Credits and Incentives. |
9.4.1 Contractor shall perform the Services in accordance with the Service Levels set forth in Transaction Documents.
9.4.2 Service Levels contained within a Transaction Document may have Service Incentives attached to them. In the event Contractor meets or exceeds a Service Level that is associated with a Service Incentive, Contractor may, upon receiving Lottery’s written confirmation that it has met any such Service Level, invoice the Lottery for payment by Lottery of the applicable Service Incentive.
9.4.3 In the event of a failure to provide the Services set forth in any Transaction Document in accordance with the applicable Service Levels, Contractor will incur the Service Credits identified in and according to such Transaction Document.
9.4.4 Service Credits and Service Incentives will be calculated and assessed in accordance with the procedure set forth in the applicable Transaction Document.
9.4.5 The Service Credits will not limit Lottery’s right to recover, in accordance with this Master Agreement, other damages incurred by Lottery as a result of such failure; provided, however, notwithstanding anything to the contrary in this Master Agreement, any award of damages in respect of any such failure will be reduced by any Service Credits already credited or paid by Contractor to Lottery in respect of such failure.
9.4.6 Before determining to assess Service Credits, and subject to the terms applicable to Service Credits in any Transaction Document, Lottery may decide in its sole discretion whether Contractor shall have any period of time to correct the situation. Upon determining that Service Credits will or may be assessed, Lottery agrees to promptly notify Contractor of that fact. Within 15 Days of receiving Lottery's notice, Contractor may submit to the designated Lottery Authorized Representative a statement of any factors it believes Lottery should consider regarding the relevant facts and circumstances. Lottery will fully and fairly consider those facts and circumstances in making any decision regarding the assessment of Service Credits. Upon determination that Service Credits will be assessed, Lottery shall notify Contractor of the assessment in writing.
9.4.7 Upon correcting any issues that caused Contractor to fail to meet a Service Level Contractor shall issue a written notice verifying that Contractor has corrected conditions causing the failure. If Lottery determines, after it has tested or otherwise verified all that all corrections have been made to Lottery’s reasonable satisfaction and that Contractor has corrected the conditions that caused Contractor to fail to meet a Service Level, then the Service Credits shall be calculated as if the applicable Service Level was restored as of the date of the Contractor’s written notice.
9.4.8 In lieu of collecting damages, including Service Credits, Lottery may accept goods or services, or both, from Contractor with a value that the Parties agree is fair given the amount of any applicable damages, including Service Credits.
9.4.9 Contractor is not required to pay Service Credits for delays due solely to a Force Majeure Event or for delays specifically due to, or approved in writing by, Lottery, or actions of third parties not under Contractor’s control.
9.4.10 Nothing in this Section 9 will be deemed to limit or obviate Lottery’s right to terminate this Master Agreement or any Transaction Document pursuant to the terms of this Master Agreement or the Transaction Document.
Enforceability. If a court of competent jurisdiction determines that any provision providing Lottery the right to Service Credits is unenforceable, all other Service Credits provisions and all other remedies available to Lottery herein, remain in full force and effect.
10. Payment and Invoicing
| Compensation. The Lottery shall compensate Contractor for performance of the Services set forth in a Transaction Document according to the payment methodology, set forth in each Transaction Document. |
| Rates and Prices. Contractor shall base its proposed costs to complete the Services described in a potential Transaction Document utilizing the rates and prices set forth in Schedule 6. |
| Rate and Price Change Requests. The rates and prices set forth in Schedule 6 shall remain effective for the Initial Term of this Master Agreement. Contractor may, prior to the |
commencement of any extension to the Term, request a change in the rates or prices set forth in Schedule 6 in accordance with the methods provided for in Schedule 6, and such revised rates or prices will be effective only with respect to Transaction Documents entered into following the Parties’ agreement to the revised rates and prices.
| Funds Available and Authorized. Lottery certifies at the time this Master Agreement and each Transaction Document is signed that sufficient funds are available and authorized for expenditure to finance costs of this Master Agreement or the Transaction Document within Lottery’s current financial plan. Contractor understands and agrees that Lottery’s payment of amounts under this Master Agreement or the Transaction Document attributable to work performed after the last Day of Lottery’s current financial plan is contingent on Oregon State Lottery Commission approval of expenditure authority to continue to make payments under this Master Agreement or the Transaction Document. Article XV, Section 4 of the Oregon Constitution provides that Lottery shall operate as a self-supporting, revenue-raising agency and that no appropriations, loans, or other transfers of state funds shall be made to it. Consequently, only revenues from Lottery sales shall be used to satisfy liabilities of Lottery. Contractor shall not be compensated for Services performed under this Master Agreement or any Transaction Document entered into hereunder by any other agency or department of the State of Oregon. |
| Contractor Expenses. Unless specifically set forth in a Transaction Document, Contractor shall pay all of Contractor’s own expenses incurred in connection with providing the Services and Deliverables including all expenses related to salaries, benefits, employment taxes and insurance for its staff. Contractor may only request Lottery for reimbursement of expenses with respect to Services provided under a Transaction Document that are specifically authorized for reimbursement under the Transaction Document, and then only if Contractor has obtained Lottery’s prior written approval. Contractor is not authorized to incur expenses payable by Lottery without Lottery’s prior written approval. If Lottery does approve to reimburse Contractor for expenses, then it will only do so in compliance with the State of Oregon Travel Policy available at: https://www.oregon.gov/das/Financial/Acctng/Documents/40.10.00.pdf. |
| Invoicing and Payments. Lottery will pay Contractor for Services and Deliverables provided under a Transaction Document in accordance with the payment terms set forth in the Transaction Document. Contractor may submit invoices in compliance with the Transaction Document. All payments to Contractor are subject to ORS 293.462. |
| Payments Due. Notwithstanding payment terms set forth in the Transaction Document that extend the period of payment, payment for complete and payable invoices shall be due 45 days after receipt by Lottery. Payments received before the payment due date shall be extended a discount on the net invoice amount as provided below: |
· Payments received by Contractor 15 days before the payment due date: 1% Discount
· Payments received by Contractor 30 days before the payment due date: 3% Discount Substitute W-9 Form. Contractor shall complete a Substitute W-9 Form, and return the completed form to Lottery as a condition of Lottery’s obligation to make any payments to Contractor under this Master Agreement.
11. Intellectual Property Ownership and Licenses Contractor Intellectual Property. Contractor retains ownership of all Contractor Intellectual Property. In the event that a Deliverable is Contractor Intellectual Property, a derivative work based on Contractor Intellectual Property, or a compilation that includes Contractor Intellectual Property, and provided Lottery has paid all charges related to such Deliverable, Contractor grants Lottery a perpetual non-exclusive, irrevocable, royalty-free, world-wide license to use, copy, display, distribute, transmit and prepare derivative works of the Contractor Intellectual Property that is part of the Deliverable, and to authorize others to do the same on Lottery’s behalf.
Application Services. The license in the Application Services is not the subject of this Agreement.
Lottery will license the Application Services separate from this Agreement.
| Work Product. The Parties agree that all Work Product is “work made for hire” of which Lottery 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 Lottery any and all of its rights, title, and interest in all Work Product delivered under this Master Agreement or a Transaction Document, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Upon Lottery’s reasonable request, Contractor shall execute, and cause Contractor Agents to execute, such further documents and instruments to fully vest such rights in Lottery. Contractor waives any and all rights relating to Work Product created pursuant to this Master Agreement or a Transaction Document, 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. |
| Third Party Intellectual Property. Unless otherwise specified in a Transaction Document that Lottery independently will acquire and obtain a license to Third Party Intellectual Property, Contractor shall secure on Lottery’s behalf, in the name of Lottery and subject to Lottery’s approval, a license to Third Party Intellectual Property delivered to Lottery by Contractor during the term of the Master Agreement or a Transaction Document or that is necessary for Contractor to deliver the Services or Deliverables. In the event that a Deliverable is Third Party Intellectual Property, a derivative work based on Third Party Intellectual Property, or a compilation that includes Third Party Intellectual Property, and there is no separate license for the Third Party Intellectual Property set forth in Schedule 8 or delivered to Lottery by Contractor, Contractor shall secure on Lottery’s behalf and in the name of Lottery an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Third Party Intellectual Property contained in the Deliverable and the pre-existing elements of the Third Party Intellectual Property, and to authorize others to do the same on Lottery’s behalf. |
| Lottery Intellectual Property; Data and Background Information. Lottery owns all Lottery Intellectual Property provided to Contractor pursuant to this Master Agreement or a Transaction Document. Lottery grants Contractor a non-exclusive, royalty-free, world-wide license to use, copy, display, distribute, transmit and prepare derivative works of Lottery Intellectual Property, and Work Product only to fulfill the purposes of this Master Agreement or a Transaction Document. Lottery’s license to Contractor is limited by the term of the Master Agreement or a Transaction Document and the confidentiality obligations of this Master Agreement or a Transaction Document. |
| No Rights. Except as expressly set forth in this Master Agreement or a Transaction Document, nothing in this Master Agreement or a Transaction Document 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 Lottery. Except as expressly set forth in this Master Agreement or a Transaction Document, nothing in this Master Agreement or a Transaction Document may be construed as granting to or conferring upon Lottery any right, title, or interest in any Contractor Intellectual Property that is now owned or subsequently owned by Contractor. |
Competing Services. Subject to the provisions of this Section 11, and Contractor’s obligations with respect to Confidential Information, including as defined in Section 12, nothing in this Master Agreement or a Transaction Document precludes or limits in any way the right of Contractor to:
(i) provide services similar to those contemplated in this Master Agreement or a Transaction Document, 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. 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 Master Agreement or a Transaction Document free of any use restriction or payment obligation to the other.
| General Knowledge. Subject to the terms and conditions of this Master Agreement, each party shall own and be free to utilize any concepts, processes, know-how, techniques, improvements or other methods it may independently develop during the course of performance under this Master Agreement, free of any use restriction or payment obligation to the other party, subject to any underlying ownership or license rights of the other party and to the confidentiality and non-disclosure provisions under Section 12 of this Master Agreement. |
| Promotions; Advertising; Reservation of Trademark Rights. Contractor acknowledges and agrees that Contractor may not use any names identifying the State of Oregon or Lottery, including any agency, department, or office, nor in any other way identify the State of Oregon in connection with the Services, in Contractor’s marketing tools without Lottery’s prior written approval. Further, Lottery reserves all rights in all trademark and service mark rights it may have, whether common law, federal, or otherwise, and Lottery does not grant Contractor a license to use the same unless otherwise expressly provided. Notwithstanding anything to the contrary in this Section 11.9, Lottery approves Contractor’s use of Lottery’s name and logo only in Contractor’s lists and narratives indicating that Lottery has been or is Contractor’s customer for the services described in any Transaction Document. |
12. Confidentiality
| Definition of Confidential Information. “Confidential Information” means: (i) the Specifications; (ii) Lottery Data; (iii) all information marked “confidential” that a Party (“Disclosing Party”) delivers in whatever medium (including reproductions) directly or indirectly to the other Party (“Receiving Party”); and (iv) any information received by the Receiving Party from the Disclosing Party that a reasonable business person in similar circumstances would consider to be confidential. The Parties agree to take reasonable commercial efforts to conspicuously mark written Confidential Information “confidential.” |
| Exclusions. Confidential Information does not include any information, however disclosed or designated, that: (i) is or subsequently becomes publicly available without Receiving Party’s breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s disclosure of such information to Receiving Party pursuant to the terms of this Master Agreement; (iii) became known to Receiving Party from a source other than Disclosing Party and other than by the breach of an obligation of confidentiality owed to Disclosing Party; or |
(iv) is independently developed by Receiving Party without reliance on the Disclosing Party’s Confidential Information.
Confidential Information Protection. Receiving Party will take reasonable measures to protect Disclosing Party’s Confidential Information from unauthorized disclosure and use, and use at least the same level of protection the Receiving Party applies to its own Confidential Information. Receiving Party shall not use Disclosing Party’s Confidential Information for purposes other than those necessary to directly further the purposes of this Master Agreement. Except as otherwise provided in Section 12.6 or Section 12.7, the Receiving Party shall not disclose to third Parties Disclosing Party’s Confidential Information without the prior written consent of Disclosing Party. Receiving Party may disclose Confidential Information to Receiving Party’s employees, agents or contractors only as permitted by the terms of this Master Agreement and only on a “need-to-know” basis after such third Parties have agreed to be bound by Section 12 as if the third Parties are Receiving Parties. Except as expressly provided otherwise in this Master Agreement, no ownership or license rights are granted in any Confidential Information.
| Injunctive Relief. Each Party acknowledges that the disclosure of any Confidential Information of Disclosing Party, except Confidential Information disclosed pursuant to Section 12.6, will immediately result in continuing irreparable injury to Disclosing Party and others that is inadequately compensable in damages at law. Accordingly, and without prejudice to any other remedy available to Disclosing Party, Disclosing Party has the right to seek injunctive relief without the requirement of posting a bond. |
| Return of Confidential Information. Upon the expiration or earlier termination of this Master Agreement or any Transaction Document, and subject to receipt of a written request from Disclosing Party, Receiving Party shall immediately return all Confidential Information to Disclosing Party without retaining any copies thereof, or must certify to the destruction of the same. Contractor’s destruction obligations in this Master Agreement are subject to Contractor’s record retention policies which may prohibit Contractor’s immediate destruction of, or other immediate disposition of, Confidential Information. Contractor shall provide written notice of its record retention policies to Lottery if the policies prohibit immediate destruction or disposition. |
| Public Records and Retention Laws. Lottery’s disclosure and destruction obligations under in this Master Agreement are subject to Oregon’s record retention and Public Records Laws, including ORS 192.005 through 192.170 and 192.311 through 192.431 (“Oregon Public Records Law), which may prohibit Lottery’s destruction of, or other disposition of, Confidential Information. Non-disclosure of documents or any portion of a document submitted by Contractor to Lottery may depend upon official or judicial determinations made pursuant to the Oregon Public Records Law. If Lottery receives a request from a third Party under the Oregon Public Records Law for the disclosure of Contractor’s Confidential Information, Lottery will promptly notify Contractor within a reasonable period of time of the request allowing Contractor to take action available under law to protect its Confidential Information. Lottery will only disclose consistent with and to the extent required under law, |
| Third-Party Nondisclosure Obligations. In connection with the subject matter of this Master Agreement and Transaction Documents, and to enable Contractor to fully perform its obligations thereunder, certain of Lottery’s third-Party contractors (“Lottery’s Designees”) may provide their Confidential Information to Contractor. Accordingly, if requested by Lottery’s Designee, Contractor shall execute a nondisclosure agreement negotiated in good faith with the Lottery’s Designee in form and substance reasonably satisfactory to Contractor and Lottery’s Designee before taking possession of the Confidential Information of Lottery’s Designee. |
13. Lottery Data.
Ownership of Lottery Data. All Lottery Data is, or will be, and will remain the property of Lottery. Without Lottery’s approval (in its sole discretion), Lottery Data will not be, (A) used by Contractor or Contractor Staff other than in connection with providing the Services, (B) disclosed (except as otherwise permitted by Article 12 (Confidentiality)), sold, assigned, leased or otherwise provided to third parties by Contractor or Contractor Staff or (C) commercially exploited by or on behalf of Contractor or Contractor Staff. Contractor hereby irrevocably assigns, transfers and conveys, and will cause Contractor Staff to assign, transfer and convey, to Lottery without further consideration all of its and their right, title and interest in and to Lottery Data. Upon request by Lottery, Contractor will execute and deliver, and will cause Contractor Staff to execute and deliver, any documents that may be necessary or desirable under any Law to preserve, or enable Lottery to enforce, its rights with respect to Lottery Data.
Return of Data. Subject to any specific data or file retention obligations set forth in the applicable Transaction Document, upon request by Lottery at any time during the Term and upon expiration or termination of this Master Agreement or a Transaction Document, Contractor will (A) promptly return to Lottery, in a format that complies with file formats described in Section 13.2 and on the media requested by Lottery, all or any part of Lottery Data, and (B) use commercially reasonable efforts to erase or destroy all or any part of Lottery Data in Contractor’s possession, in each case to the extent so requested by Lottery. Lottery Data that Contractor is unable to erase or destroy using commercially reasonable efforts pursuant to the previous sentence will continue to be subject to the provisions of this Article.
14. Records and Audits.
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