Attachment A Sample Contract S-DASOBO-00012614_Final.docx

ATTACHMENT A -SAMPLE CONTRACT

STATE OF OREGON

INFORMATION TECHNOLOGY SERVICES CONTRACT

LEARNING MANAGEMENT SYSTEM (“LMS”)

This Information Technology Services Contract (Contract) is entered into by and between the State of Oregon (State) acting by and through its Department of Administrative Services, Procurement Services (DAS PS) on behalf of the Department of Consumer and Business Services (“Agency”), and [legal name of contractor as registered with Oregon Secretary of State], an __________ corporation (Contractor) and is effective as of the Effective Date (defined below).

RECITALS

Agency desires to engage a Contractor to provide implementation, ongoing support and maintenance of a trauma reporting and data collection system (the “Services” as defined below) to enable Agency to achieve specific business and Agency mission objectives defined in this Contract. To that end, DAS PS issued RFP # S-DASOBO-00008684.

Contractor is the successful proposer to the RFP and Agency desires Contractor to perform the Services.

Contractor desires to perform the Services for Agency.

AGREEMENT

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

DEFINITIONS.

“Acceptance” or “Accepted” means written confirmation by Agency that Contractor has completed a Deliverable according to the Acceptance Criteria and the Deliverable is accepted for purposes of interim payment. These terms are distinct from “Final Acceptance.”

“Acceptance Criteria” means the criteria for accepting Deliverables under this Contract, including but not limited to Requirements, specifications for a specific Deliverable set forth in the applicable Statement of Work, and the Performance Warranties set forth in Section 11.2.

”Acceptance Tests" means those tests which are intended to determine compliance of Deliverables and the Services with the Acceptance Criteria of this Contract.

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

“Agency Intellectual Property” means any intellectual property that is owned by Agency, including Agency Data. Agency Intellectual Property includes any derivative works and compilations of any Agency Intellectual Property.

“Agency Project Manager” means the person representing Agency who serves as Contractor’s primary point of contact for the Services.

“Authorized Representative” means a person representing a party to this Contract who is authorized to make commitments and decisions on behalf of the party regarding the performance of this Contract. Contractor’s Authorized Representative is the person so identified in Exhibit E. Agency’s Authorized Representative is the person so identified in Exhibit F.

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

“Business Support Hours” means Monday through Friday, 6:00 a.m. to 6:00 p.m., Pacific Time, on Business Days.

“Calendar Days” means contiguous days.

“Change Order” means a form of Contract amendment pursuant to Section 7 that makes changes to a Statement of Work or Exhibit B within the scope of this Contract.

“Confidential Information” is defined in Section 9.1.

“Contract” means all terms and conditions in this document and all its attachments and exhibits, including as amended.

“Contractor Intellectual Property” means any intellectual property that is owned by Contractor and contained in or necessary for the use of the Deliverables or Services. Contractor Intellectual Property includes Software owned by Contractor, including but not limited to the application as described in Exhibit G, Documentation, and derivative works and compilations of any Contractor Intellectual Property.

“DAS” means the State of Oregon acting through its Department of Administrative Services.

“Data Error” – means errors in data or results caused by failures in data conversion or failures caused by the Services. Data entry errors are not Data Errors.

“Defect” means a reproducible failure of the Subscription Services to operate in accordance with Requirements and with specifications in the applicable Statement of Work, and as required under a Service Level Agreement, despite the proper use of the Subscription Services. A Defect may be due to a Data Error, or a problem with the Subscription Services, Documentation, or both. Prior to Final Acceptance, a Defect may be due to a missed, missing, or misinterpreted Requirement.

Defect Levels will be negotiated with the successful Proposer, but are anticipated to fall into one of the following categories:

Level 1 – Critical. The Subscription Services or a main subsystem is unavailable, preventing the Subscription Services or a core function from operating or causing core functions or major functionality to operate with grossly incorrect results, such as material data processing errors. There is no workaround.

Level 2 – Major. Use of the Subscription Services or a subsystem is interrupted, or a Subscription Services failure otherwise causes major functions to not operate or to operate with significantly incorrect results, such as data processing errors. There is no workaround.

Level 3 – Minor. Does not qualify as a Level 1 Defect or Level 2 Defect but which nonetheless prevents minor functionality from operating or causes minor functions to operate with incorrect results. There is a clear business need to have the Subscription Services repaired, but workarounds exist for business operations.

Level 4 – Incidental. Does not affect functionality of the Subscription Services. Low priority with no direct impact on clients or Agency staff. Cosmetic or nonessential in nature.

“Deliverables” means all items, including Work Product, that Contractor is required to provide to Agency under this Contract.

“Delivery Schedule” means the attributes of the applicable Statement of Work setting forth the completion date of each Milestone, the delivery date for each Deliverable, and other dates for delivery of Services. The Delivery Schedule includes the current, Accepted Project Implementation Plan and Schedule for the applicable Statement of Work.

“Documentation” means all documents, including documents that are Deliverables described in a Statement of Work, and which may include operator’s and user’s manuals, training materials, guides, commentary, listings, requirements traceability matrices and other materials for use in conjunction with and for the operation of the Services. Documentation includes documents in hard copy or electronic form.

“DOJ” means the State of Oregon acting through its Department of Justice.

“Effective Date” means the date specified in Section 2 or the date on which this Contract is fully executed and approved according to applicable laws, rules and regulations, whichever is later.

“EIS” means the State Chief Information Officer acting as DAS’ Enterprise Information Services.

“Enhancements” means improvements to or additional components of the Services that add functionality.

“Final Acceptance” criteria are in Section 3.6.

“Go-Live” means the Milestone date identified in a Statement of Work, Change Order, or applicable Accepted Deliverable, on which the Subscription Services will be available for Agency and its users in a Production Environment for the processing of transactions in accordance with Requirements and Service Level Agreements. A Go-Live date may be associated with the initial Implementation of the Services, a specific phase or Enhancement under a Statement of Work, a Change Order, or an Enhancement Order.

“Help Desk Services” means all necessary activities to assist the users to use the Subscription Services effectively and efficiently. Support will be negotiated with the successful Proposer, but is anticipated to include any support described in Service Level Agreements.

“Implementation” or “Implement” means the process of Contractor preparing and deploying the Software or a component of the Subscription Services to the stated environment (i.e., Demonstration and Production). Implementation includes all Services required to provide complete and functioning Subscription Services, and to prepare Agency to use it effectively.

“Intellectual Property Rights” is defined in Section 12.2.

“Key Persons” means Contractor’s Authorized Representative, the Project Manager, and all other Contractor personnel designated as Key Persons in Exhibit E.

“Maximum Not-To-Exceed Compensation” is defined in Section 6.1.

“Milestone” means the completion date for a specific group of Tasks or Deliverables identified as a Milestone in a Statement of Work.

“Personal Information” is defined in Exhibit K.

“Production Environment” means the hardware, Software, including operating system software, and the system architecture and firmware necessary for the Subscription Services to operate.

“Project” means the effort associated with Implementation of the Subscription Services, a well-defined sequence of events with an identifiable beginning and ending which purpose is to achieve an identifiable goal, i.e., the configuration, integration, development, implementation, testing, training, operations and maintenance of the Subscription Services under the Contract.

“Project Manager” means Contractor’s representative who manages the processes and coordinates the Services with Agency’s Authorized Representative to ensure delivery of the Deliverables and completion of Milestones. Contractor’s Project Manager is the person so identified in Exhibit E.

“Retention Amount” is defined in Section 6.3.

“Requirements” are the functions and elements required for the Subscription Services. Requirements are in Exhibit J, and will be managed via Deliverables identified in the Statement of Work.

“Schedule of Deliverables” means the attributes of a Statement of Work that describe each Task, Deliverable, measurable attributes of each Deliverable and Milestone with identification of the Services that are associated with them, and a completion date for each Milestone and Deliverable. The Schedule of Deliverables includes the current, Accepted Project Implementation Plan and Schedule.

“Services” means all effort to be expended by Contractor under the Contract, including installation, configuration, implementation, maintenance and support of the SaaS, completion of Tasks, and development and delivery of Deliverables and Work Product.

“Service Level Agreement” or “SLA” means an agreement that defines specific elements of the Subscription Services and the Services, periods of time for completing the defined Services, measurable conditions for determining successful completion or performance of the Subscription Services or Services, and consequences for not meeting the SLA. The SLA may contain conditions for starting, stopping, and pausing the measurement of the relevant time period.

“Software” means any computer programs, routines, or subroutines, including operating software, programming aids, application programs, and software products.

“Software as a Service” (“SaaS”) or “Subscription Services” means the integrated package of Software, applications, platform, technical framework, security infrastructure, and related services delivered by Contractor under this Contract as a subscription.

“State” means the State of Oregon.

“Statement of Work” or “SOW” means one or more of the documents within this Contract that describes the Services to be provided by Contractor, including the Tasks, Deliverables and Milestones, the attributes (including requirements and specifications) of each Deliverable, identification of the Deliverables and Services that are associated with each Task, and a completion date for each Milestone and Deliverable, and any other items as agreed by the parties and attached hereto as a Statement of Work, including as amended pursuant to Section 7. As used in this Contract, except where otherwise expressly identified as being applicable only to a specific SOW, a reference to “Exhibit A,” “SOW” or “Statement of Work” means the applicable Exhibit A (e.g., Exhibit A-1, Exhibit A-2, etc.) individually. The Statement of Work includes Accepted Deliverables, including the Project Implementation Plan and Schedule, if specifically agreed upon in Exhibit A.

“Subscription Services” are defined at “Software as a Service.”

“Task” means a segment of the Services to be provided by Contractor under this Contract.

“Third Party Intellectual Property” means any intellectual property owned by parties other than State or Contractor. Third Party Intellectual Property includes Software owned by Third Parties, and derivative works and compilations of any Third Party Intellectual Property.

“Upgrade” means upgrades, improvements or changes to the Software or other aspects of the Services that are designed to improve operating performance and to reflect changes in applicable laws without changing the basic functions of the Software and that are generally made available by Contractor in its sole discretion at no additional charge to Contractor’s other licensees of the Software. A new Upgrade typically will be indicated by the addition of one to the second digit of the upgrade number (e.g. v.X.2 would be the next Upgrade after v.X.1).

“Work Product” means 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). Notwithstanding anything in the immediately preceding sentence to the contrary, Work Product is not Agency Intellectual Property, Contractor Intellectual Property, or Third Party Intellectual Property.

TERM.

The Effective Date of this Contract is _________, or the date on which this Contract is fully executed and approved according to applicable laws, rules and regulations, whichever is later. This Contract terminates on [date to be determined at Contract execution, anticipated to be ___ years from Final Acceptance], unless otherwise terminated or extended in accordance with its terms.

SCOPE OF SERVICES.

Performance and Delivery.

Responsibilities of Contractor. Contractor shall deliver the Subscription Services and perform the Services as set forth in the applicable Statement of Work and Service Level Agreements, and in accordance with the applicable current, Accepted Project Implementation Plan and Schedule and the standards and methodologies set forth in this Contract. Contractor shall provide the Subscription Services and perform the Services:

1.1.1.1. Employing a methodology that conforms to the standards established by the Project Management Institute (PMI) as described in the Project Management Body of Knowledge (PMBOK), Sixth Edition or more current (PMBOK Guide, ANSI/PMI 99-001-2017, or as updated), supplemented by standards set forth in ISO 12207; and

1.1.1.2. In compliance with information technology standards established by Enterprise Information Services (EIS), found at: https://www.oregon.gov/das/Pages/policies.aspx#IT and which may be updated from time to time.

Contractor shall cooperate with Agency and its designated third parties, including its Quality Assurance contractor, by providing access and information on the Subscription Services’ architecture, design, operating environment, security, interfaces, and operating parameters as required for all oversight activities and Agency-identified third party services Responsibilities of Agency. If a Statement of Work requires Agency to provide any 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 20 (twenty) Business 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 20 (twenty) Business Days, and Contractor can show to the reasonable satisfaction of Agency, that the 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.

Delivery and Review of Deliverables.

Contractor shall deliver Deliverables and complete Milestones as set forth in the applicable Statement of Work by no later than the date or dates set for delivery in the Statement of Work. Delivery dates, both critical and non-critical, are set forth in the applicable Statement of Work and are subject to Agency performing its responsibilities in a timely manner.

Contractor shall provide written notice to Agency upon delivery of a completed Deliverable to Agency. By no later than (i) fifteen (15) Business Days after receipt of such notice, or (ii) the date set forth for Agency’s review in the current Accepted Project Implementation Plan and Schedule, Agency will determine whether the Deliverable meets Acceptance Criteria set forth in the Contract. Acceptance Criteria includes all requirements for a Deliverable and associated Services described in the Statement of Work, and the Performance Warranties in Section 11.2. With respect to any Deliverables that are susceptible to Acceptance Testing, Agency will conduct Acceptance Testing as set forth in Section 3.4. If Agency determines that the Deliverable meets, in all material respects, Acceptance Criteria, Agency will notify Contractor of Agency’s Acceptance in writing.

If Agency determines that a Deliverable does not meet the Acceptance Criteria in all material respects, Agency will notify Contractor in writing of Agency’s rejection of the Deliverable, and describe in reasonable detail in such notice Agency’s basis for rejection of the Deliverable. Upon receipt of notice of non-acceptance, Contractor shall, within a fifteen (15) Business Day period, modify or improve the Deliverable at Contractor’s sole expense so that the Deliverable meets, in all material respects, the Acceptance Criteria, and notify Agency in writing that it has completed such modifications or improvements and re-tender the Deliverable to Agency. Agency will thereafter review the modified or improved Deliverable within fifteen (15) Business Days of receipt of the Contractor's delivery of the Deliverable. Failure of the Deliverable to meet the Acceptance Criteria in all material respects after the second submission will constitute a default by Contractor. In the event of such default, Agency may either (i) notify Contractor of such default or instruct Contractor to modify or improve the Deliverables as set forth in this section, or (ii) notify Contractor of such default and pursue its remedies for default under Section 15 of this Contract.

Testing, Implementation, and Stabilization.

Acceptance Testing provisions will be negotiated with the successful Proposer and will reflect the agreed-upon schedule and methodology, but are anticipated to address the following:

Contractor shall configure and Implement the Subscription Services in accordance with Exhibit A-1, Implementation Services Statement of Work.

User Acceptance Testing (UAT). In accordance with [the current Accepted Project Implementation Plan and Schedule], Agency will test the Subscription Services using both test data and Agency’s converted operational data in order to determine if the Subscription Services are in material conformance with Requirements set forth in Exhibit J, and in [Deliverable ____, Functional Specifications Document], as that Deliverable is Accepted at the time of testing under this section. Agency will notify Contractor in writing of each Defect discovered during UAT, and specify its level. Contractor shall correct all Level 1, Level 2, and Level 3 Defects identified during UAT at no additional charge to Agency, and resubmit the corrected Services to Agency for retesting within ten (10) Business Days of a written notice of Defect. All such retesting will be done on an iterative basis and be completed by Agency no later than ten (10) Business Days after Contractor submission of the corrected Services. Contractor shall correct all Level 1, Level 2, and Level 3 Defects prior to completion of UAT activities under this section. Contractor shall resolve Level 4 Defects discovered during UAT at no additional charge to Agency within Agency-approved timeframes.

Stabilization Period. Upon completion of Implementation activities, including Contractor’s correction of identified Level 1, Level 2, and Level 3 Defects, Agency will use the Subscription Services for processing of data in a statewide live Production Environment for a period of 30 (thirty) Calendar Days.

At the end of the Stabilization Period, if any Level 1, Level 2, or Level 3 Defects discovered during the Stabilization Period remain uncorrected, Agency will grant Contractor one additional five (5) Business Day period from the end of the Stabilization Period to correct such Defects. If the Defects are not corrected during that period, unless Agency in its discretion allows additional time for correction, Agency may declare a material breach of this Contract by Contractor.

The parties will set priorities for Level 4 Defects remaining at the end of the System Stabilization Period, and Contractor shall correct such Defects during one or more a maintenance release(s) to be delivered on a mutually agreed upon schedule.

Completion of the Stabilization Period for the final phase of Implementation will mark the end of the Implementation Task.

Final Acceptance. “Final Acceptance” of the Implementation of the Subscription Services will occur when the following events have occurred or conditions exist:

Agency has notified Contractor that the Services meet all Acceptance Criteria and all required testing has been successfully completed, including as specified in Section 3.5 and in the applicable Statement of Work;

The Subscription Services are stable, complete, and operating correctly as specified in Section 3.5 and in the applicable Statement of Work, and without Level 1, Level 2, or Level 3 Defects;

Agency has notified Contractor that State of Oregon authorizations to Accept the Services have been received;

Documentation is complete, inventoried, and Accepted by Agency;

Contractor has reconciled all Requirements against the stabilized Subscription Services to ensure Contractor has clearly and transparently met each Requirement; and Contractor has completed and Agency has Accepted Deliverables for User Training and Technical Training as specified in the applicable Statement of Work.

Ongoing Services. Following Final Acceptance Contractor shall provide Agency and its end users the Subscription Services on a monthly basis as set forth in this Contract.

Service Level Agreements and Performance Metrics. Contractor shall meet the performance metrics and Service Level Agreements established in the Statement of Work, during the Contract term. Contractor shall, at no additional charge to Agency, furnish such materials and Services necessary to correct any Defects in the Services that prevent the Subscription Services from meeting their Acceptance Criteria and otherwise complying with the terms of this Contract.

Upgrades. Contractor shall furnish Upgrades to the Subscription Services to Agency without additional charge when such Upgrades are made generally available by Contractor to its customers without additional charge. Contractor will provide release notes describing each Upgrade, when furnished, and documentation for the appropriate user manuals.

Enhancements. Contractor shall inform Agency of the availability of Enhancements for which a separate license fee and license agreement are required. If an Enhancement is licensed by Agency under an amendment to this Contract completed in accordance with Section 7, this Contract will apply to such Enhancement. Agency understands additional fees may apply.

Technology Refresh. It is Contractor’s intent to provide Agency with Subscription Services which meet or exceed industry standards for the duration of the Contract. As such, and subject to the terms and conditions of this Contract, Contractor shall use commercially reasonable efforts to upgrade the Subscription Services to support new frequencies, technologies, and services during the Contract term consistent with upgrades provided to its other customers. Contractor has the right to upgrade the Software or Hardware and implement new technologies to better serve Agency and its end users, provided that (i) such actions by Contractor do not impair Agency's rights hereunder or result in any interference with Agency operations at the time of any upgrade; and (ii) such actions by Contractor are undertaken in accordance with and are governed by the terms of this Contract. In the event that Contractor’s upgrading of Hardware or Software or deployment of new technologies would involve changes or interference with Agency’s operations or Agency equipment or facilities used to access the Subscription Services, then Contractor shall request Agency's prior written approval, which will not be unreasonably withheld, conditioned, or delayed.

Business Continuity Management and Disaster Recovery. Contractor shall deliver and maintain Business Continuity Management and Disaster Recovery Plan and Procedures for the Subscription Services that are acceptable to Agency. In the event of a disaster, Contractor shall comply with the provisions of and deliver Services according to the Business Continuity Management and Disaster Recovery Plan and Procedures.

Response to Public Records Request for Agency Data. The Subscription Services are the system of record for Agency Data. Agency, as an executive department agency of State, must respond to requests for Agency Data and other public records under Oregon’s Public Records laws, including ORS 192.311 to 192.478, within set timeframes. Contractor shall support the ability of Agency to respond to public records requests for Agency Data in accordance with applicable law.

Performance Reporting.

Failure to Perform.

1.1.1.3. If Contractor fails to meet a performance standard, such as a Service Level Agreement or a Security and Hosting Requirement, 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.

1.1.1.4. As provided in Section 15.1, Contractor agrees to pay the damages or service credits, specified in Exhibit B if Contractor fails to provide the Services or provide Deliverables or other Services as and when required by this Contract or fails to meet the performance standards and Service Level Agreements. This section does not limit Agency’s rights with respect to the events upon which Agency may rely as a basis for Agency’s termination of this Contract for cause.

Measurement and Monitoring Tools. Contractor shall measure and monitor the performance of the Subscription Services against the applicable Service Level Agreements and shall use the necessary measurement and monitoring tools and procedures required to do so. Such measurement and monitoring must permit reporting at a level of detail sufficient to verify compliance with the Service Level Agreements, and is subject to audit by Agency. Contractor shall provide Agency with information and access to such tools and procedures, for purposes of auditing and verification.

Transition Services. Contractor shall provide transition services to support a responsible and secure transition of Services and Agency Data to another service provider or to Agency (“Transition Services”).

Upon receipt of a notice prior to expiration that Agency will engage Contractor’s Transition Services, or receipt of notice of termination and notwithstanding the reason for termination (whether for cause or without cause and whether by Contractor or Agency, and whether for all or some Services), Contractor shall continue to provide Services, inclusive of the Subscription Services, and provide Transition Services as described in the Transition Plan (defined below) for the period set in the notice and in the subsequent Transition Plan (the “Transition Period”), on the following conditions:

1.1.1.5. Agency is up to date with its undisputed payment obligations at the commencement of the Transition Period, and

1.1.1.6. Agency pays all undisputed invoices during the Transition Period in accordance with its obligations referenced in Section 6.

If during the Transition Period Contractor believes Agency is not in compliance with the foregoing conditions, Contractor shall give Agency written notice of such noncompliance and Agency will have fifteen (15) Business Days, or such longer period to which the parties may agree, to correct the noncompliance before Contractor may end the Transition Period and move to the Wind-Down Phase described below.

Transition Plan. Contractor and Agency will outline a Transition Plan, which may be requested pursuant to a notice of termination or in anticipation of the Contract terminating in accordance with its terms. The Transition Plan may serve as an update to or a confirmation of a Transition Services Task in a Statement of Work. Contractor shall deliver a detailed Transition Plan within fourteen (14) Calendar Days of Agency’s written request, or otherwise within a timeframe agreed upon by the parties, for Agency review. The Transition Plan will not be effective until it is approved by DOJ. This plan will determine the nature and extent of Contractor’s Transition Services obligations and detail the transfer of Services and Agency Data. The Transition Period will commence on the date set in the DOJ-approved Transition Plan; provided, however, if Contractor does not deliver an acceptable Transition Plan on or before the Contract termination date, then the parties will abide by a draft of the plan promulgated by Agency until the Transition Plan is approved by DOJ. The Transition Plan must address at least:

1.1.1.7. The respective Tasks and Deliverables to be completed by each party in during the Transition Period,

1.1.1.8. A schedule pursuant to which such Tasks and Deliverables will be completed, and

1.1.1.9. A schedule identifying which party is responsible for paying the cost (if any) related to each Task and Deliverable. This schedule may include Transition Services that will not exceed the current Contract NTE. If the parties agree Transition Services require new or additional Services that cause an increase in the Contract NTE, the Transition Plan will be in the form of a Contract amendment.

1.1.1.10. The parties will cooperate in good faith with each other in connection with their obligations under this Section 3.9 and will perform their obligations under the Transition Plan. If the Transition Period extends beyond the Contract term, the provisions of this Contract remain in effect for the duration of the Transition Period.

1.1.1.11. Contractor shall complete the transition of Agency Data and Services from Contractor and its subcontractors to Agency and to any providers that Agency designates, without causing any unnecessary interruption of or adverse impact on the Services.

Without limiting the generality of the aforementioned obligations, Contractor shall:

1.1.1.12. Cooperate with Agency and any Agency-designated provider by promptly taking all steps required to assist Agency in completing the Transition Plan.

1.1.1.13. Provide Agency and any Agency-designated provider with all information regarding the Subscription Services, Agency Data, and Deliverables that these parties will need to complete the Transition Period. This includes data conversions, data access or transfers, and interface specifications.

1.1.1.14. Promptly and orderly conclude all Services as Agency may direct. This includes the return of property under Section 16.6, documentation of any work in progress, and other measures.

Wind-Down. Upon the later of (i) the termination of this Contract or (ii) termination of the Transition Period, Contractor will cease providing the Subscription Services and will cease to perform all other Services, and Agency will pay Contractor all amounts payable to Contractor for Deliverables or Services delivered, and pre-approved expenses incurred through the end of the Contract or Transition Period; provided, however, when such termination is due to the breach or bankruptcy of Contractor, Agency will not be required to pay any amounts claimed by Contractor to be due until Agency determines what, if any, setoffs are required and the remedies owed to Agency are either agreed upon by Contractor through a settlement or ordered by a court of competent authority.

CONTRACTOR’S PERSONNEL.

Key Persons. Contractor acknowledges and agrees that Agency selected Contractor, and is entering into this Contract, because of the special qualifications of Contractor's Key Persons identified in Exhibit E. Contractor's Key Persons shall not delegate performance of their powers and responsibilities they are required to provide under this Contract to another Contractor employee(s) without first obtaining the written consent of Agency. Further, Contractor shall not re-assign or transfer a Key Persons to other duties or positions such that the Key Person is no longer available to provide Agency with the required expertise, experience, judgment, and personal attention, without first obtaining Agency's written consent to such re-assignment or transfer, which Agency will not unreasonably withhold or delay. Notwithstanding the foregoing, Contractor may replace Key Persons without Agency’s consent in the event any Key Persons are no longer available due to circumstances beyond Contractor’s reasonable control, such as death, illness, or termination of employment with Contractor. In the event Contractor requests that Agency approve a re-assignment or transfer of the Key Persons, or if Contractor must replace Key Persons, Agency may interview, review the qualifications of, and approve or reject the proposed replacement(s) for the Key Persons. Any such replacement must have substantially equivalent or better qualifications than the Key Person being replaced. Any replacement personnel approved by Agency will thereafter be deemed a Key Person for purposes of this Contract and Exhibit E deemed amended to include such Key Person. Agency reserves the right to determine if a replacement Key Person has acquired the project knowledge and skills necessary to perform within the twenty-eight (28) Calendar Day period following Agency approval of the replacement Key Person.

Contractor shall not charge Agency, and Agency 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, and will last for a minimum of fourteen (14) Calendar Days but not more than twenty-eight (28) Calendar Days, and will be reflected as an adjustment to a fee for a Deliverable associated with the replacement Key Person’s Services.

Project Manager. Contractor shall designate a Project Manager as a Key Person for the initial Implementation of the Subscription Services through at least Final Acceptance. The Project Manager shall be familiar with Agency’s business operations and objectives. The Project Manager will participate with Agency in periodic review sessions and will provide at Agency’s request detailed progress reports that identify completed tasks and the status of the Services required to deliver Subscription Services that meet Final Acceptance criteria.

Service Manager. Contractor shall designate a Service Manager as a Key Person for the duration of the Contract. The Service Manager shall be familiar with Agency’s business operations and objectives. The Service Manager will participate with Agency in regular meetings to be held, at least quarterly unless requested more frequently by Agency, at Agency’s offices in Salem, Oregon. The Service Manager must:

Provide measurement and monitoring reports to verify compliance with the Service Level Agreements;

Review the Services and Contractor’s performance throughout the Contract and discuss possible improvements;

Discuss Upgrades and Enhancements to the Services or any new technologies that may be available for Agency;

Discuss any other Agency-raised issues or concerns; and Provide at Agency’s request such other reports as Agency may request.

Contractor’s Employees and Subcontractors. Contractor shall not use subcontractors to perform the Services without Agency’s prior written consent. Contractor represents that any employees assigned to perform the Services, and any subcontractors performing the Services, will perform the Services in accordance with the warranties set forth in Section 11 of this Contract.

Anti-Discrimination. Contractor certifies that Contractor 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. Contractor agrees, as a material term of this Contract, to maintain such policy and practice in force during the entire Contract term. Contractor’s failure to maintain such policy and practice constitutes a breach entitling Agency to terminate this Contract for cause.

Pay Equity. As required by ORS 279B.235, Contractor 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. Contractor’s compliance with this section is a material term of this Contract, and Contractor’s failure to comply constitutes a breach entitling Agency to terminate this Contract for cause.

As required by ORS 279B.235, Contractor may not prohibit any of its employees from discussing the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person. Contractor shall not retaliate against an employee who discusses the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person.

2. INDEPENDENT CONTRACTOR; TAXES AND WITHHOLDING.

Independent Contractor. Contractor shall perform all Services as an independent contractor. Although Agency reserves the right to 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. Contractor declares and certifies by execution of this Contract that it is not an “officer,” “employee,” or “agent” of Agency, as those terms are used in ORS 30.265.

No Partnership. This Contract is not intended, and will not be construed, to create a partnership or joint venture between State and Contractor. Nothing in this Contract will be construed to make State and Contractor partners or joint venture participants.

Declaration and Certification as to Conflict of Interest. Contractor by execution of this Contract declares and certifies that (i) its performance of the Services creates no potential or actual conflict of interest as defined by ORS Chapter 244, for Contractor or any Contractor personnel or Key Persons who will perform Services under this Contract; (ii) in the event that Contractor or its personnel are either employed by or performing services for the federal government, that no rules or regulations of the agency for which Contractor or its personnel work or are employed prohibit Contractor or its personnel from providing the Services under this Contract; and ; and (iii) this Contract and the delivery of Services creates no other violation of ORS Chapter 244 for Contractor, its employees, agents, or contractors.

Responsible for Taxes. Contractor is responsible for all federal and state taxes applicable to compensation and other payments paid to Contractor under this Contract and, unless Contractor is subject to backup withholding, Agency will not withhold from such compensation and payments any amount to cover Contractor’s federal or state tax obligations. Contractor is not eligible for any social security, unemployment insurance, or workers’ compensation benefits from compensation or payments paid to Contractor under this Contract, except as a self-employed individual.

Compliance with Tax Laws. Contractor shall, throughout the duration of this Contract, comply with all tax laws of State and all applicable tax laws of any political subdivision of State. Any violation of this section or of Contractor’s warranty in Section 11.1.7 constitutes a material breach of this Contract. Any violation of this section or Section 11.1.7 entitles State to terminate this Contract, to pursue and recover damages that arise from the breach and the termination of this Contract, and to pursue all other remedies available under this Contract, at law, or in equity.

Foreign Contractor. If Contractor is not domiciled in or registered to do business in the State of Oregon, Contractor shall promptly provide to the Oregon Department of Revenue and the Secretary of State, Corporation Division, all information required by those agencies relative to this Contract. Contractor shall demonstrate its legal capacity to perform the Services under this Contract in the State of Oregon before entering into this Contract.

Disclosure of Social Security Number. Contractor shall provide Contractor’s Social Security number unless Contractor provides a federal tax identification number. This number is requested pursuant to ORS 305.385, OAR 125-246-0330(2)(d), and OAR 150-305.100. Social Security numbers provided pursuant to this authority will be used for the administration of state, federal, and local tax laws.

3. COMPENSATION.

Maximum Compensation. Notwithstanding any other provision of this Contract to the contrary, the maximum, not-to-exceed compensation that Agency will pay to Contractor is _____Dollars ($_____) (the “Maximum Not-To-Exceed Compensation”), which includes payment for any allowable expenses for which Contractor may request reimbursement under this Contract.

Payments. Payments are subject to all provisions of this Section 6.

3.1.1. Payment of Fixed Prices. Agency will pay to Contractor the fixed price listed in Exhibit L for each Deliverable completed, delivered to, and Accepted by Agency.

3.1.2. Payment for Equipment and Hardware. Subject to the parties’ agreement that Contractor will provide any equipment or hardware under this Contract, Agency will pay Contractor for any equipment and hardware delivered under this Contract upon Agency’s Acceptance of the equipment or hardware in accordance with the and delivery terms negotiated by the parties and at the prices in Exhibit L.

3.1.3. Payment for Subscription Services. Agency will pay to Contractor the fixed price per month for the Subscription Services (“Subscription Services Fee”), not to exceed __________________ as set forth in Exhibit L.

Retention Amount.

3.1.4. Retention Amount for Implementation Services. Agency may hold back an amount (the " Retention Amount") of not more than fifteen percent (15%) of any amount that is payable by Agency to Contractor for Implementation or for an Enhancement or Change Order, other than amounts attributable to the purchase of equipment, hardware, or license of any Third Party Intellectual Property. Agency will pay the then-accrued Retention Amount to Contractor within thirty (30) Calendar Days following Final Acceptance.

Expenses. Agency will not pay or reimburse any expenses incurred by Contractor related to the Subscription Services or during the completion of the Services except as authorized in the applicable Statement Work and Exhibit L. Any such authorized travel expenses must comply with the Oregon Travel Policy, https://www.oregon.gov/das/financial/acctng/pages/travel.aspx, including as updated.

Invoices. Agency will pay Contractor not more than once each month upon Contractor’s submission of a detailed invoice that sets forth the Subscription Services Fee and the fixed prices due for other Services performed, and Deliverables Accepted by Agency. Such invoices must comply with the requirements of this Section 6, identify the Deliverables completed and Accepted for which Contractor seeks compensation, and itemize and explain all authorized expenses for which reimbursement is claimed. Contractor shall submit invoices to Agency’s Authorized Representative (or delegate). Agency will have the right to review each such invoice for compliance with the requirements of this section and any other relevant provisions of this Contract. All payments to Contractor are subject to ORS 293.462.

Limit on Payments. Contractor shall not submit invoices for, and Agency will not pay, any amount in excess of the Maximum Not-To-Exceed Compensation. If this maximum amount is increased by amendment of this Contract, pursuant to Section 7, the amendment must be fully effective before Contractor performs additional Services or other Services or delivers goods subject to the amendment. No payment will be made for any Services performed or goods delivered before the Effective Date or after termination of this Contract.

Funds Available and Authorized. Contractor will not be compensated for Subscription Services or Services performed under this Contract by any other agency or department of the State of Oregon. Agency believes it has sufficient funds currently available and authorized for expenditure to finance the costs of 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.

Contractor or Subrecipient Determination.

In accordance with the Oregon State Controller’s Oregon Accounting Manual, policy 30.40.00. 104, Agency’s determination is that:

|_| Recipient is a subrecipient |X| Recipient is a contractor Catalog of Federal Domestic Assistance (CFDA) #(s) of federal funds to be paid through this Contract:

4. Amendments. This Contract may be amended, modified, or supplemented only by a written amendment signed by State and Contractor that, if required by applicable law, has been approved by DAS and for legal sufficiency by DOJ. Any amendment that provides for additional Subscription Services, goods or other Services may only provide for Subscription Services, goods or Services directly related to the scope of goods and services described in the RFP, and no amendment will be effective until all requisite signatures and approvals are obtained. Either Agency or Contractor may request a change to this Contract, including to any of its exhibits, by submitting a written proposal describing the desired change to the other party.

Change Control. Subject to the conditions above, amendments to a Statement of Work, Service Level Agreements, Exhibit J, Requirements and related costs may be managed through an Agency-authorized change control process that reflects at least the processes described in this section. Either Agency or Contractor may request a change by submitting a written proposal describing the requested change to the other party. Agencies and Contractor’s Authorized Representatives will review the written change request and either mutually approve it for further analysis or reject it.

4.1.1. Analysis of Change Requests; Change Orders. The parties will analyze each change request (that has not been rejected) in accordance with the authorized change control process to determine the effect that the implementation of the change will have on the applicable Statement of Work, Service Level Agreement, Requirements, and related costs. If Contractor requests to make changes in its design or implementation of the Subscription Services to enable the Subscription Services to meet Requirements, such changes will be made at no cost to Agency, unless such changes are due to the failure of Agency or its agents to perform their responsibilities in a timely manner. If the analyzed change request is mutually approved, the agreed-upon party will prepare a written change order, detailing all modifications to the applicable Statement of Work, Service Level Agreements, Requirements, and related costs (the “Change Order”). A Change Order at a minimum must contain:

4.1.1.1. The effective date of the Change Order;

4.1.1.2.