Attachment A_Sample Contract Master Services Agreement S-DASOBO-00011270_OCB Final for Posting~1.docx

Oregon Commission for the Blind Communication, Public Relations and Education, and Outreach Services Master Services Agreement #_________

This master services agreement (“MSA”) is between the State of Oregon (“State”) acting by and through its Department of Administrative Services, State Procurement Services (“DAS SPS”) on behalf of the Oregon Commission for the Blind (“OCB” or “Agency”) and _________________, (“Contractor”) for Communication, Public Relations, Public Education, and Outreach Services.

Recitals

A. DAS SPS desires to engage Contractor through this MSA to make available to OCB certain communication, public relations, public education, and outreach services, as described on Exhibit B (““Services” and “Pricing”).

B. On {date}, DAS SPS issued RFP #S-DAS SPSOBO-00011270 to provide authority to directly award contracts to Contractor and other providers of the Products and Services.

C. Contractor desires to perform the Services for OCB, pursuant to the terms of this MSA.

Agreement

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

1. Purpose of MSA. This MSA establishes terms and conditions applicable to Contractor and DAS SPS in connection with the Services, including but not limited to:

1.1. the Work Order Contracts (“WOCs” or “Contracts”) to be used by OCB and Contractor to enter contracts for Services ;

1.2. the terms and conditions applicable to Contracts;

1.3. the process through which Contracts will be created; and

1.4. the pricing applicable to Contracts.

Agency and Contractor will enter into binding and enforceable contracts for Services only by execution of Contracts, substantially in the form attached hereto as Exhibit C.

Each Contract will specify the Services to be performed, the associated deliverables to be delivered, and will incorporate the terms and conditions in Exhibit A as applicable to the Contract.

2. Effective Date and Term. This MSA is effective on the later of (i) {Date}, or (ii) the date that it has been executed by DAS SPS and Contractor and has been approved as required by applicable law (“Effective Date”). Unless terminated or extended, the initial term of this MSA is 2 years and expires on (Date) (“MSA term”). DAS SPS and Contractor may extend this MSA by written agreement. MSA expiration or termination does not extinguish or prejudice DAS SPS’ right to enforce this MSA with respect to any Contractor breach or any default or defect in Contractor performance that has not been cured. The total term of this MSA shall not exceed ten (10) years.

3. MSA Documents. This MSA includes the MSA and its exhibits which are attached and incorporated by reference. If a conflict, inconsistency or ambiguity exists among any portion of this MSA and any other documents, then the issue must be interpreted in the following order of precedence:

3.1. This MSA less all exhibits;

3.2. Exhibit A, Contract Terms and Conditions;

3.3. Exhibit B, Description of Services; Pricing;

3.6. Exhibit C, Work Order Form;

3.7 Exhibit C-1, Statement of Work to Work Order Contract Form;

3.8 Exhibit D, Federal Terms and Conditions;

3.9 Exhibit E, Independent Contractor Certification;

3.10 Exhibit F, Contract Contact Information.

4. Firm Offer Established; Pricing Changes.

4.1. Firm Offer Established. This MSA constitutes a firm offer by Contractor regardless of whether any Contract for Services is executed. This MSA is enforceable as a firm offer pursuant to ORS 279B.140 for the MSA term specified in section 2, and all pricing in Exhibit B is valid until the MSA expires or is terminated, unless the pricing is changed according to subsection 4.2. Notwithstanding ORS 72.2050, obligations under this MSA are not revocable by Contractor.

4.2. Pricing Changes. Contractor shall keep pricing specified in Exhibit B fixed for at least the first twelve (12) full months of this MSA. Thereafter, DAS SPS and Contractor may adjust pricing no more than once annually by MSA amendment. Contractor shall submit all pricing increase requests to DAS SPS in writing and provide substantiating evidence that each request is based on demonstrable market changes impacting the cost of the Services. Pricing changes will apply to Contracts and amendments to Contracts entered on and after the effective date of the pricing change.

5. Non-exclusive MSA; Contractor Selection.

5.1. Non-exclusivity. This MSA is not exclusive. Agency retains the right to contract for Services through any selection process authorized by law, or to perform the Services itself. Neither DAS SPS nor Agency guarantees that any specific number of Contracts will be entered or that any specific amount of Services will be required.

5.2. Contractor Selection. In the event DAS SPS awards more than one Master Services Agreement, Agency must conduct a best value comparison process to select the contractor for award based upon various factors, including: cost, Services availability, time of performance, or other factors. Agency shall issue a request for quote to all Master Services Agreement holders detailing the Service need and evaluation criteria, including: Service availability, time for delivery or performance, costs, and any other factors. Agency shall award the Contract to the contractor with the offer that is in the best interest of Agency. Agency determination is final.

6. Signed Contract Required for Products or Services.

6.1. Contract Form. DAS SPS and Agency must use a WOC form substantially similar to the forms attached as Exhibit C.

6.2. Contract Negotiation. Prior to signing a Contract, Agency and Contractor may negotiate the Services to be included in the Contract from the Services Categories set forth in Exhibit B, including but not limited to the cost of the Services. Agency and Contractor may negotiate a fixed price or maximum amount payable for the Services or both under the Contract based on the pricing specified in Exhibit B. Contractor’s pricing under any resulting Contract shall not exceed the pricing specified in Exhibit B.

6.3. Contract Content. To order Services, Agency completes the best value selection process set forth in section 5.2 above and must submit a Contract to the selected contractor that specifies all of the following:

6.3.1. Language stating that the Contract is submitted under this MSA and the MSA number;

6.3.2. Language incorporating all Contract terms and conditions of Exhibit A into the Contract;

6.3.3. Clear description of the required Services and associated deliverables;

6.3.4. Rates and maximum amount payable for the Services (including travel and other expenses);

6.3.5. Required delivery schedule for the Services;

6.3.6. Invoicing address; and

6.3.7. Name of Agency’s authorized representative and contact information for that individual, including telephone number and e-mail address.

6.4. Contract Rejection. Contractor shall reject Contracts that do not comply with this section 6. Contractor also shall reject Contracts that are not from Agency.

6.5. Contract Creation. Each fully executed Contract creates a separate contract between Agency and Contractor that is enforceable according to its terms and is independent of all other executed Contracts. Each Contract consists only of the terms specified for Contracts in this MSA and no other terms, regardless of source. DAS SPS is an intended beneficiary under each Contract between Agency and Contractor. DAS SPS is not obligated or liable to Contractor under any Contract.

6.6. Agencys’ Liability under Contracts. Contractor shall look solely to the Agency for any rights and remedies Contractor may have at law or in equity arising under any Contract between Contractor and the Agency. Contractor acknowledges and agrees that DAS SPS is not liable to Contractor under any Contract entered into between Contractor and Agency

7. Payment. Agency will pay Contractor for Services and associated deliverables according to the payment methodology specified in the applicable Contract. Agency will pay Contractor only for Services that Contractor has delivered or completed and Agency has accepted.

8. Services; Pricing. Attached hereto as Exhibit B is a list of the Services and applicable price available pursuant to this MSA.

9. Reserved

10. Representations and Warranties: Contractor represents and warrants to DAS SPS that:

10.1. Contractor is not an “officer,” “employee,” or “agent” of DAS SPS, as those terms are used in ORS 30.265;

10.2. Contractor fully understands and will perform its obligations under this MSA;

10.3. Contractor is qualified to do business in the State of Oregon and will remain qualified throughout the MSA term;

10.4. Contractor is not in arrears in the payment of any monies due and owing the State of Oregon, or any department or agency thereof, including but not limited to the payment of taxes and employee benefits, and will not become so during the MSA;

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

10.6. Contractor will comply with all federal, state, and local laws, ordinances, rules, and regulations applicable to its performance under this MSA;

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

10.8. Contractor’s performance under this Contract to the best of Contractor's knowledge creates no potential or actual conflict of interest, as defined by ORS 244, for either Contractor or any Contractor personnel that will perform the Services under this Contract;

10.9. Contractor represents and warrants that the personnel providing services under this Contract are employees of Contractor; that Contractor withholds applicable income taxes from the pay of its employees; that Contractor pays workers’ compensation insurance premiums arising from the employment of its employees under this Contract; that Contractor makes all other applicable tax and related payments arising from that employment (including without limitation social security tax payments); and that Contractor provides employee benefits to its employees, including without limitation health insurance benefits, vacation benefits, and retirement benefits;

10.10. Contractor (to the best of Contractor’s knowledge), for a period of no fewer than six (6) calendar years preceding the Effective Date, faithfully has complied with:

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

10.10.2. 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;

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

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

10.11. Contractor possesses and will maintain at its own expense all required licenses, certifications and permits necessary to deliver Services under this MSA and all Contracts;

10.12. Contractor has the power and authority to enter into and perform this MSA and all Contracts;

10.13. This MSA, when executed and delivered, is a valid and binding obligation of Contractor enforceable according to its terms;

10.14. Contractor has the skill and knowledge possessed by well-informed members of its trade or profession and Contractor will apply that skill and knowledge with care and diligence so Contractor and Contractor’s employees and any authorized subcontractors perform the Services described in this MSA in accordance with the highest standards prevalent in the industry or business most closely involved in providing the Services and Contractor shall, at all times during the term of this MSA and any Contract, be qualified, professionally competent, and duly licensed to perform the Services;

10.15. The Services will materially conform to acceptance criteria set forth in the MSA and the Contract, including the Statement of Work and any Documentation provided by Contractor, and are free from error or defect that materially impairs their use, and be free from material defects in materials, workmanship, or design;

10.16. Except as otherwise provided in this MSA or a Contract, Contractor shall transfer all Services to Authorized Purchaser free and clear of any and all restrictions on or conditions of transfer, modification, licensing, sublicensing, direct or indirect distribution, or assignment, and free and clear of any and all liens, claims, mortgages, security interests, liabilities, and encumbrances of any kind;

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

10.18. When used as authorized by this Contract, no Work Product infringes nor will Agency’s use, duplication or transfer of the Work Product infringe any copyright, patent, trade secret or other proprietary right of any third party.

The warranties set forth in this section 10 are in addition to, and not in lieu of, any other warranties provided in this MSA or in any Contract.

11. MSA Default. Contractor is in default of this MSA if:

11.1. Contractor fails to honor pricing at least at or lower than the pricing specified in Exhibit B; or

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

11.3. Contractor violates or fails to perform any covenant, representation, warranty, obligation or certification under this MSA.

Before Contractor can be found in default of this MSA, DAS SPS shall first deliver a notice of default to Contractor. The notice must describe the specific nature of the default, cite the specific provisions of this MSA that have been violated, indicate whether the default can be cured, and specify the time period in which the default must be cured, if cure is permitted.

12. Remedies for Default. If Contractor is in default under section 11, DAS SPS may, at its option, pursue any or all remedies available to it under this MSA and at law or in equity, including without limitation, termination of this MSA pursuant to section 13 or pursuing a claim for damages, or 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 any or all.

13. Termination.

13.1. Mutual Termination. The parties may terminate this MSA upon the date specified in written agreement.

13.2. DAS SPS’ Right to Terminate. DAS SPS may, at its sole discretion, terminate this MSA as follows:

13.2.1. DAS SPS may terminate this MSA upon thirty (30) calendar days’ prior written notice to Contractor or any later date as specified in the written notice; or

13.2.2. DAS SPS may terminate this MSA immediately if federal or state laws, regulations or guidelines are modified in such a way that would prohibit any party’s performance under this MSA.

13.3. DAS SPS’ Right to Terminate for Cause. In addition to any other rights and remedies DAS SPS may have under this MSA, DAS SPS may terminate this MSA, in whole or in part, immediately upon written notice to Contractor of Contractor’s default under section 11.

13.4. Effect of MSA Termination or Expiration. Upon termination or expiration of this MSA, Contractor shall continue to provide the Services and meet its obligations under all effective Contracts issued prior to MSA termination or expiration, unless such Contract is otherwise terminated pursuant to its terms. The termination or expiration of this MSA will be without prejudice to the rights of the parties accrued up to the date of such termination or expiration.

14. Contractor’s Compliance with Tax Laws.

14.1. Contractor must, throughout the term of this MSA and any extensions, comply with all tax laws of this state and all applicable tax laws of any political subdivision of this state. For the purposes of this Section, “tax laws” includes all the provisions described in subsection 10.10.1 through 10.10.4 of this MSA.

14.1. Any violation of this subsection 14.1 constitutes a material breach of this MSA. Further, any violation of Contractor’s warranty in subsection 10.10 of this MSA, that Contractor has complied with the tax laws of this state and the applicable tax laws of any political subdivision of this state, also constitutes a material breach of this MSA. Any violation shall entitle DAS SPS to terminate this MSA, to pursue and recover any and all damages that arise from the breach and the termination of this MSA, and to pursue any or all of the remedies available under this MSA, at law, or in equity, including but not limited to:

14.1. Termination of this MSA, in whole or in part;

14.2. Exercise of the right of setoff, or garnishment, if applicable, and withholding of amounts otherwise due and owing to Contractor, in an amount equal to State’s setoff right, without penalty; and

14.3. Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief. DAS SPS shall be entitled to recover any and all damages suffered as the result of Contractor's breach of this MSA, including but not limited to direct, indirect, incidental and consequential damages, costs of cure, and costs incurred in securing replacement Services, replacement contractor, or any of the above.

These remedies are cumulative to the extent the remedies are not inconsistent, and DAS SPS may pursue any remedy or remedies singly, collectively, successively, or in any order whatsoever.

15. Indemnity. Contractor shall defend, save, hold harmless, and indemnify the State of Oregon and DAS SPS, and their officers, employees and agents from and against all third party claims, suits, actions, losses, damages, liabilities, statutory penalties, costs and expenses of any nature whatsoever, including personal injury, death, damage to real property and damage to tangible or intangible personal property resulting from, arising out of, or relating to the intentional, reckless or negligent acts or omissions of Contractor or its officers, employees, subcontractors, or agents under this MSA or any Contract including:

15.1. Any claim that Contractor, a subcontractor, or Contractor’s staff or a subcontractor’s staff are employees of the State or Agency for any reason; and

15.2 Any claim against the State or Agency, which, if true, would constitute a breach by Contractor of any of the representations, warranties, or covenants set forth in this MSA.

Without limiting the generality of the foregoing, Contractor will have no obligation to indemnify the State of Oregon or DAS SPS from and against any claims, suits, actions, losses, damages, liabilities, costs and expenses attributable solely to the acts or omissions of DAS SPS or its officers, employees or agents.

16. Governing Law. This MSA is governed by and construed according to the laws of the State of Oregon without regard to principles of conflict of laws.

17. Venue and Consent to Jurisdiction. Any claim, action, suit, or proceeding (collectively, “Claim”) between DAS SPS and Contractor that arises from or relates to this MSA must be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon; provided, however, if a Claim must be brought in a federal forum, then it must be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. CONTRACTOR BY EXECUTION OF THIS CONTRACT HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF THE COURTS REFERENCED IN THIS SECTION 17. 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 sovereign immunity, governmental immunity, immunity based on the eleventh amendment to the Constitution of the United States or otherwise, from any claim, or (ii) consent by the State of Oregon to the jurisdiction of any court.

18. MSA Contract Administrators. The MSA Contract Administrators for DAS SPS and for Contractor are the individuals identified in this section 18 or any other individual identified in writing as the MSA Administrator to the other party.

gwen.sunken@das.oregon.gov

OCB MSA Contract Administrator:

Michael Wolff, Office Manager 535 SE 12th Avenue Portland OR 97214

(971) 673-1596 (o)

(503) 703-3561 (m) michael.wolff@ocb.oregon.gov

19. Amendment. This MSA may be amended, modified, or supplemented only by a written amendment signed by DAS SPS and Contractor. Any amendment that provides for additional Services, may only provide for Services, directly related to the scope of Services. No amendment will be effective until all requisite signatures and approvals are obtained. Either DAS SPS or Contractor may request a change to this MSA, including all Exhibits hereto, by submitting a written proposal describing the desired change to the other party.

20. Nondiscrimination in Employment. Contractor certifies that Contractor has a written policy and practice that meets the requirements, described in ORS 279A.112, of preventing sexual harassment, sexual assault, and discrimination against employees who are members of a protected class. Contractor agrees, as a material term of the MSA, to maintain the policy and practice in force during the entire MSA term.

21. Integration. This MSA and attached Exhibits constitute the entire agreement between the parties on the subject matter hereof. There are no understandings, agreements or representations, oral or written, not specified herein regarding this MSA.

Authorized Signatures:

Contractor:

By: ____________________________________________

Title: __________________________________________ Date: ________________

The State of Oregon acting by and through its Oregon Commission for the Blind

Title:___________________________________________ Date: ________________

The State of Oregon acting by and through its Department of Administrative Services, State Procurement Services

Title:___________________________________________ Date: ________________

Oregon Department of Justice Approval not required, pursuant to ORS 291.047

EXHIBIT A

to Master Agreement #_____

CONTRACT TERMS AND CONDITIONS

These Contract Terms and Conditions apply to all Contracts issued under this MSA, including Purchase Orders, Work Order Contracts or other agree upon ordering instruments.

1. DEFINITIONS. In addition to any other terms defined elsewhere in this Contract, the following defined terms apply:

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

1.2. “Calendar Day” means any day on the Western calendar.

1.3. “Contract” means any Purchase Order or Work Order Contract or other agreed upon ordering instrument issued under this MSA.

1.4. “Deliverables” means all Products and items that Contractor is required to provide to Agency under a Contract as part of the Services, including Work Product.

1.5. “Work Product” means every invention, discovery, work of authorship, trade secret, or other tangible or intangible item and all Intellectual Property rights therein that Contractor is required to deliver to Agency pursuant to the Services.

2. Non-Exclusive Contract. Contractor acknowledges and agrees that by executing this Contract, Authorized Purchaser is not granting to Contractor the exclusive right to provide the Products or perform the Services, or any other services, for Authorized Purchaser. Authorized Purchaser reserves the right to:

2.1. Contract with other entities to provide Authorized Purchaser with products or services that are the same or similar to those provided to Contractor under this Contract; and

2.2. Perform any or all of the Services itself.

3. Compensation. Following Contractor’s delivery or completion, and Agency’s acceptance of the Services, Agency will pay Contractor as specified in this Contract, based on the pricing established in MSA Exhibit B. Contractor represents that all pricing for Services under this Contract is equal to or better than the pricing specified in the MSA.

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

5. Invoicing and Payment

5.1. Invoices. Contractor shall submit invoices for accepted Services or Deliverables according to the payment schedule as set forth in this Contract. Contractor shall submit invoices to Agency as designated in this Contract. Contractor shall include the MSA number and applicable Contract number on all invoices. Contractor also shall include a description of all Services performed, or Deliverables delivered, applicable pricing, total amount invoiced and the address for payment.

5.2. Payment. Agency shall pay all undisputed amounts within thirty (30) days from receipt of each invoice determined to be correct following Agency’s review under section 5.3. Contractor may assess late payment charges only to the extent permitted by ORS 293.462.

5.3. Invoice Review / Dispute Process. Agency will review each invoice and will either approve payment of the amount invoiced or notify Contractor of any errors or disputed charges. Agency may withhold payment of any amounts that are disputed.

If an error or dispute arises concerning the amount charged in an invoice, Agency will notify Contractor of the disputed charge. Upon notification of dispute, Contractor shall submit to Agency all documentation Agency requires to substantiate the amount charged.

Agency, in its sole discretion, will determine if the supporting documentation provides sufficient substantiation for the disputed charges. If Agency determines that the supporting documentation is sufficient, Agency will notify Contractor and pay Contractor the amount charged in the invoice. If Agency determines the supporting documentation supports payment of an amount less than originally invoiced, Agency will notify Contractor of the amount Agency believes is due under the invoice, and Agency will pay the invoice in that lesser amount.

6. Performance, Delivery and Acceptance.

6.1. Responsibilities of Contractor. Contractor shall provide the Products and perform the Services in accordance with the standards and methodologies set forth in the Statement of Work and this Contract. Contractor shall cooperate with Agency and its designated third parties by providing access and information on the Products’ architecture, design, operating environment, interfaces and operating parameters as necessary.

6.2. Delivery and Review of Deliverables. Unless otherwise agreed, within ten (10) Business Days following Contractor’s delivery of Services or Deliverables, or both, Agency will review the Services and Deliverables to determine whether the Services and Deliverables meet the Contract requirements. If Agency determines that the Services and Deliverables meet the Contract requirements, Agency will notify Contractor of Agency’s acceptance.

If Agency determines that the Services or Deliverables, or both, do not meet the Contract requirements, Agency will notify Contractor of Agency’s rejection. Within ten (10) Business Days following Contractor’s receipt of Agency’s rejection notice, Contractor shall revise and redeliver to Agency the rejected Services or Deliverables at Contractor’s sole expense to ensure that the Services or Deliverables meet the Contract requirements as determined by Agency. Agency will thereafter review of the revised Services or Deliverables and notify Contractor of Agency’s acceptance or rejection within a ten (10) Business Days following Agency’s receipt of Contractor’s revised Services or Deliverables. This process is an iterative process.

Contractor’s failure to deliver Services or Deliverables that meet the specifications and performance standards after Agency’s second review may constitute a default by Contractor, if Agency chooses not to allow Contractor any further attempts to revise and redeliver the Services or Deliverables, or both. Upon such default, Contractor shall refund to Agency all amounts paid by Agency for the Deliverables or the Services related to such Deliverables. All such refunds are in addition to, and not in lieu of, any other remedies Agency may have for Contractor’s default.

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

6.4. Performance Metrics and Service Level Guarantees. In its provision of the Products and Services, Contractor shall meet the performance metrics and service level guarantees set forth in the Contract. Contractor shall provide, maintain, and upgrade any hardware and related equipment, and software provided by Contractor and required for delivery and operation of the Products and Services If Contractor fails to meet a performance standard, Contractor shall (i) investigate, assemble and preserve pertinent information with respect to, and report on the causes of, the failure, including performing a root cause analysis of the failure; (ii) advise Agency, as and to the extent requested by Agency, of the status of remedial efforts being undertaken with respect to such failure; (iii) minimize the impact of and correct the problem and begin meeting the performance standard; and (iv) take appropriate preventive measures so that the failure does not recur.

Contractor shall pay the damages or issue service credits as agreed to in this Contract if Contractor fails to provide the Services as and when required by this Contract or fails to meet the performance metrics and service level guarantees specified in this Contract. This section does not limit Agency’s rights with respect to the events upon which Authorized Purchaser may rely as a basis for termination of this Contract for cause.

6.5. Responsibilities of Agency. If this Contract requires Agency to provide any information or resources, and Agency fails to provide the requisite quality or quantity of such resources, or fails to provide such resources in a timely manner for a period that does not exceed ten (10) Calendar Days, Contractor’s sole remedy is an extension of the applicable delivery dates corresponding to the delay. If Agency’s failure to provide such resources exceeds ten (10) Calendar Days, and Contractor can show to the reasonable satisfaction of Agency, that Agency’s failure has resulted in an unavoidable increase in the cost of the Services required for the Statement of Work then Contractor will be entitled to recover from Agency the reasonable amount of such increased costs. Contractor's right to delay applicable delivery dates or recover for increased costs may be exercised only if Contractor provides Agency with reasonable notice of Agency's failure and Contractor uses commercially reasonable efforts to perform notwithstanding Agency's failure to perform.

7. Contractor’s Personnel.

7.1. Key Persons. Contractor’s Key Persons are identified on MSA Exhibit B. The hourly rates applicable to each Key Person are specified in MSA Exhibit B. Contractor acknowledges and agrees that a significant reason Agency selected Contractor and is entering into this Contract is because of the special qualifications of each Key Person. Agency is engaging the expertise, experience, judgment, and personal attention of such Key Persons under this Contract. Neither Contractor nor any Key Person shall delegate performance of the duties and obligations of such Key Person under this Contract to any other employee, agent or subcontractor of Contractor unless Agency provides prior written consent to such delegation. Contractor shall not reassign or transfer a Key Person to other duties or positions so that the Key Person is no longer available to provide Agency with that Key Person’s services unless Agency provides prior written consent to the reassignment or transfer, or the reassignment or transfer is required based on the termination of employment, illness, death, disability or other similar cause.

If Contractor requests Agency’s consent to a delegation, reassignment, transfer or other replacement of a Key Person, Agency may meet with the Key Person and review the qualifications of the proposed substitute personnel before providing its consent or rejecting such replacement. Any such replacement shall have substantially equivalent or better qualifications than the Key Person being replaced. Contractor shall not charge Agency, and Agency will not pay, for any replacement Key Person while that Key Person acquires the necessary skills and knowledge to continue the Services. Such period of non-charge will be agreed upon by the parties, but not extend for more than twenty-eight (28) Calendar Days. All replacement personnel approved by Agency are deemed Key Persons for purposes of this Contract, and this Contract is deemed amended to include those Key Persons.

7.2. Subcontracts. Contractor shall not enter into any subcontracts for any of the Services required by this Contract without Agency’s prior written consent. In addition to any other provisions Agency may require, Contractor shall include in any permitted subcontracts under this Contract a requirement that the subcontractor be bound by sections 5, 6, 8, 9, 11, 12, 14, 17, 20, 29, and 30 of this Contract as if the subcontractor were the Contractor. Agency’s consent to any subcontractor shall not relieve Contractor of any of its duties or obligations under this Contract.

7.3. Successors and Assigns. Contractor shall not assign or transfer any of its interest in this Contract without Agency’s prior written consent. This Contract is binding upon and shall inure to the benefit of Agency and Contractor, and their respective successors and permitted assigns.

7.4 Cooperation. Contractor understands and agrees that, as part of this Contract, Contractor may be required to work with other Agency contractors who may be working on this or similar projects. Agency and Contractor acknowledge and agree that this cooperation is essential to the mutual goal of both parties for accurate and valuable use by Agency. Contractor shall create and maintain a cooperative working relationship between and among Agency and other entities and their respective representatives involved in representing Agency’s priorities at the federal and statewide levels, to further the interests of Agency to result in the Services begin successfully completed on time and within budget.

In the event of a conflict between contractors who must cooperate, contractors shall notify the Agency’s contract administrator and abide by Agency’s direction(s).

8. Confidentiality / Non-Disclosure.

8.1. Confidential Information. Each party acknowledges that it and its employees or agents may, in the course of performing its responsibilities under this Contract, be exposed to or acquire information that is confidential to the other party or the other party’s clients. Any and all information of any form obtained by one party or its employees or agents in the performance of this Contract is confidential information of the other party (“Confidential Information”). The parties shall treat any reports or other documents or items (including software) which result from the use of the Confidential Information by the recipient of such information with respect to confidentiality in the same manner as the Confidential Information. Confidential Information does not include information that (i) is or becomes (other than by disclosure by the party acquiring such information) publicly known or is contained in a publicly available document; (ii) is furnished by the party disclosing such information to others without restrictions similar to those imposed by this Contract; (iii) is rightfully in the receiving party’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 the discloser without the obligation of confidentiality, (v) is disclosed with the written consent of the disclosing party, or; (vi) is independently developed by employees or agents of the receiving party who can be shown to have had no access to the Confidential Information.

8.2. Duties of Care. The recipient of Confidential Information shall hold Confidential Information in strict confidence, using at least the same degree of care that it uses in maintaining the confidentiality of its own Confidential Information, and the recipient shall not copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give or disclose Confidential Information to third parties or use Confidential Information for any purposes whatsoever other than required by law or otherwise as contemplated by this Contract or reasonably related thereto, including without limitation the use by Agency contractors who need to access or use the Confidential Information for any valid business purpose, and to advise each of its employees and contractors of their obligations to keep Confidential Information confidential.

8.3. Prevention of Unauthorized Use or Disclosure. Each party shall use commercially reasonable efforts to assist the other in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limitation of the foregoing, each party shall advise the other immediately in the event it 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 each party will at its expense cooperate with the other in seeking injunctive or other equitable relief in the name of the other against any such person.

8.4. Non-disclosure. Each party agrees that, except as provided in this Contract or directed by the other, it will not at any time during or after the term of this Contract disclose, directly or indirectly, any Confidential Information to any person, and that upon termination of this Contract each party will turn over to the other all documents, papers and other matter in its possession which embody Confidential Information.

8.5. NDAS SPS and Background Checks. Contractor agrees to comply with all reasonable requests by Agency to ensure the confidentiality and nondisclosure of Agency’s Confidential Information, including without limitation (i) obtaining nondisclosure agreements from Contractor’s employees and agents who are performing Services and providing copies of such agreements to Agency, (ii) performing criminal background checks on each of Contractor’s employees and agents who are performing Services, and providing a copy of the results to Agency, and (iii) complying with Agency’s access and security policies and procedures.

8.6. Public Records Laws. Agency’s obligations of confidentiality, if any, are subject to the Oregon Public Records Laws, ORS 192.311 through ORS 192.478 and the Oregon Custody and Maintenance of Records Laws, ORS 192.005 through192.170.

8.7. Injunctive Relief and Other Remedies. Each party acknowledges that breach of this section 8, including disclosure of any Confidential Information may give rise to irreparable injury which may be inadequately compensable in damages. Accordingly, each party may seek injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available. Each party acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of the other and are reasonable in scope and content.

8.8. Publicity. Contractor agrees that it will not disclose the form, content or existence of this Contract or any Deliverable 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.

9. Independent Contractor; Taxes and Withholding.

9.1. Contractor shall perform all Services as an independent contractor. Although Agency reserves the right to determine the delivery schedule for the Services to be performed and evaluate the quality of the completed performance, Agency cannot and will not control the means or manner of Contractor’s performance. Contractor is responsible for determining the appropriate means and manner of performing the Services.

9.2. If Contractor is currently performing services for the State of Oregon or the federal government, Contractor, by signing this Contract, declares and certifies that:

9.2.1. Contractor’s delivery of Services creates no potential or actual conflict of interest as defined by ORS 244;

9.2.2. No rules or regulations of Contractor’s employing agency (state or federal) would prohibit Contractor’s Services under this Contract;

9.2.3. If applicable, Contractor meets the specific independent contractor standards of ORS 670.600; and

9.2.4. Contractor is not an “officer,” “employee,” or “agent” of Agency as those terms are used in ORS 30.265.

9.3. Contractor is responsible for all federal or state taxes applicable to compensation or payments to Contractor under this Contract and, unless Contractor is subject to backup withholding, Agency 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 to Contractor under this Contract, except as a self‑employed individual.

10. Representations and Warranties.

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

10.1.1. Contractor is not an “officer,” “employee,” or “agent” of DAS SPS or Agency, as those terms are used in ORS 30.265;

10.1.2. Contractor fully understands and will perform its obligations under this Contract and will not make any claims for, or have any rights to relief based on its claim that it misunderstood the terms of this Contract, or lacked information related to its required performance under this Contract;

10.1.3. Contractor is qualified to do business in the State of Oregon and will remain qualified throughout the Contract term;

10.1.4. Contractor is not in arrears in the payment of any monies due and owing the State of Oregon, or any department or agency thereof, including but not limited to the payment of taxes and employee benefits, and will not become so during the Contract term;

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

10.1.6. Contractor will comply with all federal, state, and local laws, ordinances, rules, and regulations applicable to its performance under this Contract.

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

10.1.8. Contractor’s performance under this Contract to the best of Contractor's knowledge creates no potential or actual conflict of interest, as defined by ORS 244, for either Contractor or any Contractor personnel that will perform the Services under this Contract;

10.1.9. Contractor represents and warrants that the personnel providing services under this Contract are employees of Contractor; that Contractor withholds applicable income taxes from the pay of its employees; that Contractor pays workers’ compensation insurance premiums arising from the employment of its employees under this Contract; that Contractor makes all other applicable tax and related payments arising from that employment (including without limitation social security tax payments); and that Contractor provides employee benefits to its employees, including without limitation health insurance benefits, vacation benefits, and retirement benefits;

10.1.10. Contractor (to the best of Contractor’s knowledge, after due inquiry), for a period of no fewer than six (6) calendar years preceding the Effective Date of this Contract, Contractor faithfully has complied with:

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

· 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;

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

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

10.1.11. Contractor possesses and will maintain at its own expense all required licenses, certifications and permits necessary to deliver Services under this Contract;

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

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

10.1.14. Contractor has the skill and knowledge possessed by well-informed members of its trade or profession and Contractor will apply that skill and knowledge with care and diligence so Contractor and Contractor’s employees and any authorized subcontractors perform the Services described in this Contract according to the highest standards prevalent in the industry or business most closely involved in providing the Services that Contractor is providing to Agency pursuant to this Contract;

10.1.15. The Services and each Deliverables delivered by Contractor pursuant to the Services will materially comply with any service descriptions, specifications, standards or requirements set forth in this Contract; and

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

10.2. Warranties Cumulative. The warranties set forth in this section are in addition to, and not in lieu of, any other warranties provided.

11. Ownership and Licenses.

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

The parties agree that all Work Product is “work made for hire” of which Agency 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 Agency any and all of its rights, title, and interest in all Work Product delivered under this Contract, whether arising from copyright, patent, trademark, trade secret, or any other state or federal…