Attachment_A_Sample Contract_S-DASOBO-00003117_Statewide Disparity Study.doc

Attachment A

State of Oregon

STATEWIDE DISPARITY STUDY

Contract for Services No. PO-DAS-00000000 This Contract for Services (this “Contract”) is by and between the State of Oregon, acting through its Department of Administrative Services, Procurement Services (“DAS PS”) and ________, a [_______] (“Consultant”) and is effective as of the Effective Date.

Consultant’s Contract Administrator for this Contract is:

Name and Title

**Address

**City, State ZIP

Phone: (xxx) xxx-xxxx

Fax: (xxx) xxx-xxxx anyname@yahoo.com

DAS PS’ Contract Administrator for this Contract is:

Contract Administrator Name, Title

DAS PS-Division

**Address

**City, State ZIP

Phone: (xxx) xxx-xxxx

Fax: (xxx) xxx-xxxx anyname@oregon.gov

Either party may change its Contract Administrator by providing the other notice in compliance with Section 17.6 of this Contract.

Contract Term.

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

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

1) this Contract less all exhibits;

2) Exhibit C (Special Requirements);

3) Exhibit A (Statement of Work); and

4) Exhibit B (Required Insurance) The foregoing documents and Exhibits are attached hereto and made a part of the Contract by this reference.

Services.

1.1. Performance of Services. Consultant shall perform the services (“Services”) and deliver to DAS PS the deliverables (“Deliverables”) set forth in Exhibit A, the Statement of Work (“Statement of Work”). The Statement of Work includes the delivery schedule for the Deliverables and Services. Consultant shall perform the Services in accordance with the terms and conditions of this Contract.

1.2. Submission and Acceptance of Deliverables. When the Statement of Work requires Consultant to deliver Deliverables to DAS PS, then Consultant shall deliver Deliverables that comply with the requirements and acceptance criteria set forth in the Statement of Work. Consultant shall provide written notice to DAS PS upon delivery of a completed Deliverables to DAS PS. By no later than (i) 15 business days after receipt of such notice, or (ii) the date or period for review set forth in the Statement of Work, DAS PS will determine whether the Deliverable has the characteristics and otherwise meets the acceptance criteria set forth in the Statement of Work. If DAS PS determines that the Deliverable has the characteristics and meets acceptance criteria set forth in the Statement of Work in all material respects, DAS PS will notify Consultant in writing of DAS PS’ acceptance of the Deliverable.

1.3. Rejection of Deliverables; Corrections. If DAS PS determines that a Deliverable does not have the characteristics or otherwise meet the acceptance criteria set forth in the Statement of Work in all material respects, DAS PS will notify Consultant in writing of DAS PS’ rejection of the Deliverable, and describe in reasonable detail in such notice DAS PS’ basis for rejection of the Deliverable. Upon receipt of notice of non-acceptance, Consultant shall, within a 15 business day period, modify or improve the Deliverable at Consultant’s sole expense so that the Deliverable has the characteristics described in the Statement of Work and meets, in all material respects, the acceptance criteria, and notify the DAS PS in writing that it has completed such modifications or improvements and re-tender the Deliverable to DAS PS. DAS PS will thereafter review the modified or improved Deliverable within 15 business days of receipt of the Consultant's delivery of the Deliverable. Failure of the Deliverable to have the characteristics or meet in all material respects the acceptance criteria set forth in the Statement of Work after the second submission will constitute a default by Consultant. In the event of such default, DAS PS may either, (i) notify Consultant of such default and instruct Consultant to modify or improve the Deliverable as set forth in this Section, or (ii) notify Consultant of such default and pursue its remedies for default provided for by law or the terms of this Contract.

1.4. Transition of Services. Consultant shall continue to provide the Services and shall provide DAS PS with services to support a responsible and secure transition upon termination of this Contract for a period up to ninety (90) calendar days after the termination of this Contract for any reason. Such transition services include access to all DAS PS Data.

1.5. Cooperation. Consultant shall cooperate with DAS PS and its designated third parties.

1.6. Goods. If Consultant provides DAS PS any software, hardware or other goods or products as part of the Services, all such software, hardware or other goods or products will comply with all provider or manufacturer documentation and the requirements and specifications in this Contract. Unless otherwise provided, title to all such software, hardware or other goods or products passes to DAS PS upon DAS PS acceptance and the provisions of ORS Chapter 72 et. seq.

Compensation.

1.7. Not to Exceed Compensation. The maximum, not-to-exceed compensation payable to Consultant under this Contract, which includes any allowable expenses, is $***,***.**. DAS PS will not pay Consultant any amount in excess of the not-to-exceed compensation of this Contract and will not pay for Services performed before the Effective Date or after the expiration or termination of this Contract. If the maximum compensation is increased by amendment of this Contract, the amendment must be fully effective before Consultant performs Services subject to the amendment.

1.8. Payments. Payments, including interim payments, to Consultant are subject to ORS 293.462, will be made only for completed and accepted Deliverables and Services, and will be made in accordance with the payment schedule and requirements set forth in Exhibit A.

1.9. Invoices. Consultant shall submit invoices to DAS PS as set forth in the Statement of Work or, if not set forth therein, to DAS PS’ Contract Administrator. Consultant may submit invoices no more frequently than once per month for accepted Deliverables and Services or as otherwise detailed in the payment schedule set forth in the Statement of Work. The invoices must describe all Services performed with particularity, including the dates Consultant performed the Services for which it is requesting payment, deliverable numbers, deliverable percent complete and by whom the Services were performed and itemize and explain all expenses that this Contract requires DAS PS to pay and for which Consultant claims reimbursement.

1.10. Expenses. DAS PS will not pay or reimburse any expenses incurred by Consultant during the completion of the Services except as authorized in the Statement Work or elsewhere in this Contract. Any such authorized travel expenses must comply with the Oregon Travel Policy available at: http://www.oregon.gov/das/cfo/sars/policies/oam/40.10.00.pdf

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

Consultant’s Personnel.

1.12. Key Persons. Consultant acknowledges and agrees that DAS PS selected Consultant, and are entering into this Contract, because of the special qualifications of Consultant's key persons identified in the Statement of Work (each a “Key Person” and, together, “Key Persons”). Neither Consultant nor a Key Person may delegate performance of the powers and responsibilities that a Key Person is required to provide under this Contract to another Consultant employee, subcontractor or agent without first obtaining the written consent of DAS PS. Further, Consultant may not re-assign or transfer a Key Person to other duties or positions such that the Key Person is no longer available to provide the DAS PS with the required expertise, experience, judgment, and personal attention, without first obtaining DAS PS' written consent to such re-assignment or transfer, which DAS PS will not unreasonably withhold or delay. Notwithstanding the foregoing, Consultant may replace a Key Person in the event the Key Person is no longer available due to circumstances beyond Consultant’s reasonable control, such as death, illness, or termination of employment with Consultant. In the event Consultant requests that DAS PS approve a re-assignment or transfer of a Key Person, or if Consultant must replace a Key Person, DAS PS may interview, review the qualifications of, and approve or reject the proposed replacement for the Key Person. Any such replacement must have substantially equivalent or better qualifications than the Key Person being replaced. Any replacement personnel approved by DAS PS in writing (email acceptable) will thereafter be deemed a Key Person for purposes of this Contract, and the Statement of Work will be deemed amended to include such Key Person.

1.13. Payment for Replacement Key Personnel. If DAS PS is paying Consultant on an hourly or other periodic basis, then Consultant will not charge DAS PS, and DAS PS will not pay, for a replacement Key Person while such replacement acquires the project knowledge and skills necessary to perform the Services. Such period of non-charge will be agreed upon by the parties.

1.14. Subcontractors. Consultant shall advise DAS PS if subcontractors will be performing any or all of the Services. Consultant shall not enter into any subcontracts for any of the Services required by this Contract without DAS PS’ prior written consent. In addition to any other provisions DAS PS may require, Consultant shall include in any permitted subcontract under this Contract provisions to ensure that DAS PS will receive the benefit of subcontractor’s performance as if the subcontractor were Consultant. DAS PS’ consent to any subcontract does not relieve Consultant of any of its duties or obligations under this Contract.

1.15. State Premises. Consultant, its employees, subcontractors and agents shall comply with all policies, rules, procedures, and regulations established by DAS PS and the State for access to and activities in and around premises controlled by DAS PS or any other agency of the State, and access to State data or networks, including but not limited to the provisions set forth on Exhibit C.

Independent Consultant; Responsibility For Taxes And Withholding

1.16. Independent Consultant. Consultant shall perform all Services as an independent contractor. DAS PS reserves the right (i) to determine and modify the delivery schedule for the Services and (ii) to evaluate the quality of the Services; however, DAS PS may not and will not control the means or manner of Consultant's performance. Consultant is responsible for determining the appropriate means and manner of performing the Services.

1.17. No Conflicts. Consultant, by signature to this Contract, represents and warrants that Consultant’s performance of the Services under this Contract creates no potential or actual conflict of interest as defined by ORS 244; and no statutes, rules or regulations of any State of Oregon or federal agency for which Consultant currently performs work would prohibit Consultant from performing the Services under this Contract.

1.18. Affiliation. Consultant understands and agrees that it is not an "officer," "employee," or "agent" of the State of Oregon, as those terms are used in ORS 30.265 or otherwise.

1.19. Taxes and Benefits. Consultant is responsible for all federal or state taxes applicable to compensation or payments paid to Consultant under this Contract and, unless required by applicable law, DAS PS will not withhold from such compensation or payments any amount to cover Consultant's federal or state tax obligations. Consultant is not eligible for any social security, unemployment insurance or workers' compensation benefits from compensation or payments paid to Consultant under this Contract, except as a self‑employed individual.

Representations and Warranties.

1.20. Consultant’s General Representations and Warranties. Consultant represents and warrants to DAS PS and DAS PS that:

1.20.1. Consultant has the power and authority to enter into and perform this Contract;

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

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

1.20.4. Consultant shall comply with the standards established by the Project Management Institute (PMI) as described in the Project Management Body of Knowledge (PMBOK), Sixth Edition, the Software Engineering Institute supplemented by standards set forth in ISO 12207, as well as standards established by DAS for quality assurance services;

1.20.5. Consultant is not in violation of, charged with nor, to the best of Consultant’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 Consultant’s provision of the Application Services or other Services will not violate any such law, ordinance, regulation or order; and

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

1.21. Consultant’s Performance Warranties.

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

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

1.21.3. Except as otherwise provided in this Contract (including Section 9), Consultant shall transfer all Deliverables to DAS PS 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;

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

1.21.5. Except as otherwise set forth in this Contract, any subcontractors performing work for Consultant under this Contract have assigned all of their rights in the Deliverables to Consultant or DAS PS and no third party has any right, title or interest in any Deliverables supplied to DAS PS under this Contract.

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

Ownership of Work Product.

1.23. Definitions. As used in this Section, and elsewhere in this Contract, the following terms have the meanings set forth below:

1.23.1. “DAS PS Data” means information created and information stored by DAS PS through the Services, and information created and collected by Consultant regarding DAS PS and its clients during the course of providing the Services, including Personal Information.

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

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

1.23.4. “Third Party Intellectual Property” means any intellectual property owned by parties other than DAS PS or Consultant.

1.23.5. “Work Product” means everything that is originally made, conceived, discovered, or reduced to practice by Consultant or Consultant’s subcontractors or agents (either alone or with others) pursuant to this Contract, including every invention, modification, discovery, design, development, customization, configuration, improvement, process, work of authorship, documentation, formula, datum, technique, know how, secret, or intellectual property right whatsoever or any interest therein (whether patentable or not patentable or registerable under copyright or similar statutes or subject to analogous protection).

1.24. DAS PS Data and Intellectual Property. DAS PS owns all its intellectual property, background information and data, including all Work Product. DAS PS hereby grants to Consultant a limited right to use DAS PS’ intellectual property, background information and data, including all Work Product, for the purposes of this Contract only.

1.25. Original Works. All Work Product created by Consultant pursuant to the Services, including derivative works and compilations of Work Product, and whether or not such Work Product is considered a work made for hire or an employment to invent, is the exclusive property of DAS PS. DAS PS and Consultant agree that such Work Product is “work made for hire” of which DAS PS 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,” Consultant hereby irrevocably assigns to DAS PS any and all of its rights, title, and interest in all Work Product, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Upon DAS PS’ reasonable request, Consultant shall execute such further documents and instruments necessary to fully vest such rights in DAS PS. Consultant forever waives any and all rights relating to Work Product, including without limitation, any and all rights arising under 17 USC §106A or any other rights of identification of authorship or rights of approval, restriction or limitation on use or subsequent modifications.

1.26. License in Consultant Intellectual Property. Consultant hereby grants to DAS PS an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the pre-existing elements of the Consultant Intellectual Property employed in the Deliverables, and to authorize others to do the same on DAS PS’ behalf.

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

1.28. No Rights. Except as expressly set forth in this Contract, nothing in this Contract may be construed as granting to or conferring upon Consultant any right, title, or interest in any intellectual property that is now owned or subsequently owned by DAS PS. Except as expressly set forth in this Contract, nothing in this Contract may be construed as granting to or conferring upon DAS PS any right, title, or interest in any Consultant Intellectual Property that is now owned or subsequently owned by Consultant.

1.29. Marks. Neither party grants the other the right to use its trademarks, trade names, service marks or other designations in any promotion or publication without prior written consent. Each party grants only the licenses and rights specified in this Contract.

1.30. Competing Services. Subject to the provisions of this Section, and Consultant’s obligations with respect to Confidential Information, nothing in this Contract precludes or limits in any way the right of Consultant to: (i) provide services similar to those contemplated in this Contract, or consulting or other services of any kind or nature whatsoever to any individual or entity as Consultant in its sole discretion deems appropriate, or (ii) develop for Consultant or for others, Deliverables or other materials that are competitive with those produced as a result of the Services provided hereunder, irrespective of their similarity to the Deliverables delivered pursuant to this Contract. Each party is free to utilize any concepts, processes, know-how, techniques, improvements or other methods it may develop during the course of performance under this Contract free of any use restriction or payment obligation to the other.

Confidential Information.

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

1.32. Non-Disclosure. Consultant shall hold, and shall cause Consultant Staff to hold, all Confidential Information in confidence, using the highest standard of care applicable, and shall not copy, reproduce, sell, assign, license, market, transfer, distribute, or otherwise dispose of, give, make available or disclose, in whole or in part, directly or indirectly, Confidential Information to third parties (other than its authorized subcontractors), or use Confidential Information for any purposes whatsoever other than the provision of Services to DAS PS hereunder, and shall advise Consultant Staff of their obligations to keep Confidential Information confidential. Consultant shall assist DAS PS in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the generality of the foregoing, Consultant shall advise DAS PS immediately in the event Consultant 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 Consultant will at its expense cooperate with DAS PS in seeking injunctive or other equitable relief in the name of the State or Consultant against any such person. Consultant shall not at any time during or after the term of this Contract, except as directed by DAS PS, disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this Contract. Upon expiration or termination of this Contract or at DAS PS’ request, Consultant shall deliver to DAS PS all documents, papers, and other matter in Consultant's possession that embody Confidential Information. Notwithstanding the foregoing and unless otherwise specified in this Contract, Consultant may keep one copy of such Confidential Information necessary for quality assurance, audits and evidence of performance of the Services.

The following information is exempt from the non-disclosure obligations, information that: (i) is or becomes (other than by disclosure by Consultant or Consultant Staff acquiring such information) publicly known or is contained in a publicly available document except to the extent applicable law still restricts disclosure; (ii) is furnished by DAS PS to others without restrictions similar to those imposed by this Contract; (iii) is rightfully in Consultant’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 DAS PS without the obligation of confidentiality, (v) is disclosed with the written consent of DAS PS, or; (vi) is independently developed by Consultant or Consultant Staff who can be shown to have had no access to the Confidential Information.

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

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

1.35. Data and Network Security. Consultant shall comply at all times with the State’s s data and network security requirements as set forth in this Contract, including as detailed in Exhibit C or as otherwise made available to Consultant.

1.35.1. State Standards. Consultant shall comply with:

· Oregon’s Statewide Information Security Standards:

https://www.oregon.gov/das/OSCIO/Documents/2019StatewideInformationAndCyberSecurityStandardsV1.0.pdf

· Oregon’s Statewide Policies: https://www.oregon.gov/das/Pages/policies.aspx#IT

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

1.35.2. Criminal Background Checks. Consultant’s employees, agents and subcontractors that will perform Services under this Contract must submit to a criminal background check. Such background check must occur prior to arrival on DAS PS premises or prior to access of DAS PS Confidential Information, whichever occurs first. Background checks will be performed at Consultant expense. DAS PS in its sole discretion has the right to reject any Consultant employee, agent, or subcontractor, or limit any such person’s access to the Application Services or premises based on the results of the background check.

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

1.35.4. Prohibition on Data Mining. Consultant shall not capture, maintain, scan, index, share or use DAS PS Data stored or transmitted by the Services, or otherwise use any data-mining technology, for any non-authorized activity, and shall not permit its agents or subcontractors to do so. For purposes of this requirement, “non-authorized activity” means data mining or processing of data, stored or transmitted by the service, for unrelated commercial purposes, advertising or advertising-related purposes, or for any other purpose other than security analysis that is not explicitly authorized in this Contract.

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

1.37. Publicity. Consultant agrees that it will not disclose the form, content or existence of this Contract or any Deliverables in any advertising, press releases or other materials distributed to prospective customers, or otherwise attempt to obtain publicity from its association with DAS PS or the State of Oregon, whether or not such disclosure, publicity or association implies an endorsement by DAS PS or the State of Oregon of Consultant’s services, without the prior written consent of DAS PS.

Indemnities and Claims.

1.38. Indemnity by Consultant. Consultant shall defend, save, hold harmless, and indemnify the State of Oregon DAS PS and their officers, employees and agents from and against all third party claims, suits, actions, losses, damages, liabilities, statutory penalties, costs (including attorneys’ fees) and expenses (collectively, "Claims") of any nature whatsoever resulting from, arising out of, or relating to the activities of Consultant or its officers, employees, subcontractors, or agents under this Contract, including but not limited to, unauthorized disclosure of Confidential Information, professional malfeasance, infringement of intellectual property rights, intentional, willful, or wanton wrongful acts, and acts outside the scope of Services set forth in this Contract.

1.39. Legal Counsel. If Consultant is required to defend the State of Oregon, DAS PS, or their officers, employees or agents under Section 10.1, then Consultant shall select legal counsel reasonably acceptable to the Oregon Attorney General to act in the name of, or represent the interests of, the State of Oregon, DAS PS, or their officers, employees and agents. Such legal counsel must accept appointment as a special assistant attorney general under ORS chapter 180 before such action or representation. Further, the State of Oregon, acting by and through its Department of Justice, may assume its own defense, including that of its officers, employees and agents, at any time when in the State of Oregon's sole discretion it determines that (i) proposed counsel is prohibited from the particular representation contemplated; (ii) counsel is not adequately defending the interests of the State of Oregon or its officers, employees and agents; (iii) important governmental interests are at stake; or (iv) the best interests of the State of Oregon are served thereby. Consultant's obligation to pay for all costs and expenses includes those incurred by the State of Oregon in assuming its own defense or that of its officers, employees, and agents under (i) and (ii) above.

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

1.41. CONTRACTOR IS NOT AUTHORIZED TO SETTLE OR COMPROMISE ANY CLAIM REFERENCED IN THIS SECTION WITHOUT THE EXPRESS WRITTEN CONSENT OF DAS PS.

Limitation of Liabilities.

1.42. EXCEPT FOR LIABILITY ARISING OUT OF OR RELATED TO (i) SECTION 10, OR (ii) SECTION 11, CONTRACTOR’S LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER SHALL BE LIMITED TO ONE AND ONE HALF TIMES THE MAXIMUM-NOT-TO-EXCEED AMOUNT OF THIS CONTRACT.

1.43. EXCEPT FOR LIABILITY TO THIRD PERSONS ARISING OUT OF OR RELATED TO (i) SECTION 10, OR (ii) SECTION 11, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOST SAVINGS, OR PUNITIVE, INDIRECT, EXEMPLARY, CONSEQUENTIAL, OR INCIDENTAL DAMAGES.

1.44. Limitation of DAS PS Liabilities. DAS PS’ liabilities to Consultant, if any, are subject to Article XI, Section 7 of the Oregon Constitution and the Oregon Tort Claims Act, ORS 30.260-30.300.

Insurance. Consultant shall maintain insurance as set forth in Exhibit B.

Default; Remedies; Termination.

1.45. Default by Consultant. Consultant will be in default under this Contract if:

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

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

1.45.3. Consultant commits any material breach or default of any covenant, warranty, obligation, certification, or agreement under this Contract, fails to perform the Services under this Contract within the time specified herein or any extension thereof, or so fails to pursue the Services as to endanger Consultant's performance under this Contract in accordance with its terms, and such breach, default or failure is not cured within 14 calendar days after DAS PS’ notice, or such longer period as DAS PS may specify in such notice; or

1.45.4. Consultant has liquidated and delinquent debt owed to the State of Oregon or any of its agencies, boards, commissions, departments or divisions.

1.46. DAS PS’s Remedies for Consultant’s Default. In the event Consultant is in default under Section 13.1, DAS PS may, at its option, pursue any or all of the remedies available to it under this Contract and at law or in equity, including, but not limited to:

1.46.1. Suspension of Services; or

1.46.2. Termination of this Contract; or

1.46.3. Withholding all monies due for Services and Deliverables that Consultant has failed to deliver within any scheduled completion dates or has performed inadequately or defectively; or

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

1.46.5. Exercise of its right of setoff, and withholding of amounts otherwise due and owing to Consultant, without penalty; or

1.46.6. 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 Consultant has been given notice if required by law.

1.47. Remedies Cumulative. The remedies set forth in Section 13.2 are cumulative to the extent the remedies are not inconsistent, and DAS PS may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever. If a court determines that Consultant was not in default under Sections 13.1, then Consultant will be entitled to the same remedies as if this Contract was terminated pursuant to Section 13.6.1.

1.48. Default by DAS PS. DAS PS will be in default under this Contract if:

1.48.1. DAS PS fails to pay Consultant any amount pursuant to the terms of this Contract, and DAS PS fails to cure such failure within 30 calendar days after Consultant’s notice or such longer period as Consultant may specify in such notice; or

1.48.2. DAS PS commits any material breach or default of any covenant, warranty, or obligation under this Contract, and such breach or default is not cured within 30 calendar days after Consultant’s notice or such longer period as Consultant may specify in such notice.

1.49. Consultant’s Remedies. In the event DAS PS terminates this Contract under Section 13.6.1, or is in default under Section 13.4, and whether or not Consultant elects to exercise its right to terminate the Contract under Section 13.6.3, Consultant’s sole monetary remedy will be (i) with respect to Services compensable at a stated rate, a claim against DAS PS for unpaid invoices, time worked within any limits set forth in this Contract but not yet invoiced and authorized expenses incurred and interest, subject to ORS 293.462, and (ii) with respect to Deliverables-based Services, a claim against DAS PS for the sum designated for completing the Deliverables multiplied by the percentage of Services completed and accepted by DAS PS, less previous amounts paid and any claim(s) that DAS PS has against Consultant. In no event will DAS PS be liable to Consultant for any expenses related to termination of this Contract or for anticipated profits. If previous amounts paid to Consultant exceed the amount due to Consultant under this Section 13.5, Consultant shall pay immediately any excess to DAS PS upon written demand.

1.50. Stop Work; Termination.

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

If the Stop Work Order is canceled or DAS PS issues a notice directing Consultant to resume Services, DAS PS may, after receiving and evaluating a request from Consultant, make an adjustment in the time required to complete the Services by a duly executed amendment, inclusive of any ramp-up time required to for Consultant to resume Services. Any such Consultant request must be in the form of a Change Request under Section 7.1 and must be received by DAS PS within ten (10) Business Days of DAS PS’ notice canceling the Stop Work Order or directing Consultant to resume Services.

1.50.2. DAS PS’ Right to Terminate at its Discretion. DAS PS may terminate this Contract:

1.50.2.1. Upon 30 calendar days’ prior written notice by DAS PS to Consultant;

1.50.2.2. Immediately upon written notice by DAS PS to Consultant if DAS PS fails to receive funding, appropriations, limitations, allotments or other expenditure authority at levels sufficient to pay for the Services or Work Products; or

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

1.50.3. DAS PS’ Right to Terminate for Cause. In addition to any other rights and remedies DAS PS may have under this Contract, DAS PS may terminate this Contract immediately upon written notice by DAS PS to Consultant, or at such later date as DAS PS may establish in such notice, if Consultant is in default under Section 13.2.

1.50.4. Consultant’s Right to Terminate for Cause. Consultant may terminate this Contract immediately upon written notice to DAS PS, or at such later date as Consultant may establish in such notice, if DAS PS is in default under Section 13.4.

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

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

Compliance with Law.

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

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

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

1.54. Compliance with Oregon Tax Laws.

1.54.1. Consultant certifies that for a period of six years prior to the Effective Date of this Contract that Consultant has complied with and shall, throughout the duration of this Contract, comply with all tax laws of this State. “Tax laws” of this State include: (i) all tax laws of State, including but not limited to ORS 305.620 and ORS chapters 316, 317, and 318; (ii) any tax provisions imposed by a political subdivision of State that applied to Consultant, to Consultant’s property, operations, receipts, or income, or to Consultant’s performance of or compensation for any work performed by Consultant; (iii) any tax provisions imposed by a political subdivision of State that applied or apply to Consultant, or to goods, services, or property, whether tangible or intangible, provided by Consultant; and (iv) any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions.

1.54.2. Any violation of Section 14.2 constitutes a material breach of this Contract and entitles DAS PS or DAS PS to pursue any or all of the remedies available under this Contract, at law, or in equity, including but not limited to:

1.54.2.1. Termination of this Contract, in whole or in part;

1.54.2.2. Exercise of the right of setoff, or garnishment if applicable, and withholding of amounts otherwise due and owing to Consultant without penalty; and

1.54.2.3. Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief. The State is entitled to recover any and all damages suffered as the result of Consultant's breach of this Contract, including but not limited to direct, indirect, incidental and consequential damages, costs of cure, and costs incurred in securing replacement Services.

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

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

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

Consultant may not prohibit any of its employees from discussing the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person. Consultant shall not retaliate against an employee who discusses the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person.

1.57. Oregon False Claims. Consultant understands and acknowledges it is subject to the Oregon False Claims Act (ORS 180.750 to 180.785) and to any liabilities or penalties associated with the making of a false claim under that Act. By its execution of the Contract, Consultant certifies the truthfulness, completeness, and accuracy of any statement or claim it has made, it makes, it may make, or cause to be made that pertains to the Contract or the Services being provided,…