Attachment_A_Sample_Master_Services_Agreement.docx

STATE OF OREGON

MASTER SERVICES AGREEMENT No.

This Master Services Agreement for Health Professionals’ Service Program (this “MSA”) is entered into by and between the State of Oregon (“State”) acting by and through its Department of Administrative Services, State Procurement Services (“DAS SPS”) on behalf of the Oregon Medical Board (“Board”), and _____________, a ____________ corporation (“Contractor”) and is effective as of the Effective Date (defined below).

RECITALS

DAS SPS desires to provide a price agreement through which the Boards (defined below) may engage a contractor to provide professional services to provide a standardized, consolidated, statewide monitoring program to health professionals to enable the Boards to achieve specific business objectives specified in ORS.676. To that end, DAS SPS issued RFP # S-DASOBO-00012632.

Contractor is the successful proposer to the RFP.

Contractor desires to provide the Services for the Boards.

AGREEMENT

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

DEFINITIONS.

These definitions apply to this MSA and any Work Order Contract entered into under this MSA.

“Acceptance” or “Accepted” means written confirmation by Board that Contractor has completed a Deliverable according to the Acceptance Criteria.

“Acceptance Criteria” means the criteria for accepting Deliverables required by this Contract, including but not limited to all specifications and requirements in the Statement of Work, and the Performance Warranties set forth in section 11.2.

“Agreement Monitor” or “Monitor” is the Contractor staff member responsible for ensuring all assigned licensees are in compliance with the monitoring agreements, conditions of practice, and any applicable additional Board agreements.

“Assessment” or “Evaluation” means the process an independent third-party evaluator uses to diagnose the licensee and to recommend treatment options for the licensee.

“Authorized Representative” means a person representing a party to this MSA or WOC who is authorized to make commitments and decisions on behalf of the party regarding the performance of this MSA or WOC.

“Board” means an Oregon Professional Board (Oregon Medical Board, the Oregon Dental Board, the Oregon State Board of Nursing, and the State of Oregon Board of Pharmacy or any other Oregon professional board who may request Services).

“Board Data” means information created by Board, and information regarding Board and its Licensees that is created and collected by Contractor during the course of providing the Services.

“Board Intellectual Property” means any intellectual property that is owned by Board and includes any derivative works and compilations of any Board Intellectual Property.

“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.

“Calendar Days” mean contiguous days.

“Confidential Information” is defined in section 15.1.

“Consultant” or “Monitoring Consultant” is an independent professional with experience in substance use or mental health disorders, respectively, who has a Master’s degree in social work, psychology, or related field.

“Consultation Group Meeting” means group meetings for a licensee with substance use disorders. Licensees participating in these meetings may be required by their board-specific requirements of their monitoring agreement or they may attend voluntarily.

“Consultation Group Meeting Facilitator” is an independent professional with experience in substance use disorders who has a master’s degree in social work or equivalent who is in charge of leading the consultation group meetings.

“Contractor” is the successful Proposer in connection with RFP # S-DASOBO-00012632 and a party to this MSA and any resulting WOC.

“Contractor Intellectual Property” means any intellectual property that is owned by Contractor and contained in or necessary for the use of the Deliverables. Contractor Intellectual Property includes derivative works and compilations of any Contractor Intellectual Property.

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

“Deliverable” means all items that Contractor is required to provide to a Board under a Work Order Contract, including Work Product.

“Delivery Schedule” means that attribute of the Statement of Work setting forth the completion date of each Milestone and the delivery date for each Deliverable.

“Diagnosis” means the principal mental health or substance use diagnosis listed in the current Diagnostic Statistical Manual (DSM). The diagnosis is determined through the assessment and any examinations, tests or consultations suggested by the assessment.

“Documentation” means all documents, including documents that are Deliverables described in the Statement of Work that are to be delivered by Contractor under a Work Order Contract.

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

“DSM” means the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association.

“Effective Date” means, for this MSA, the date specified in section 2 of this MSA and for a Work Order Contract means the date specified in section 2 of a WOC.

“Evaluator” or “Third-Party Evaluator” is an individual or center who is a qualified independent third-party health care professional who provides an assessment the enrolled Licensee.

“Federal Regulations” means:

(a) As used in ORS 676.185(5)(d), a “positive toxicology test result as determined by federal regulations pertaining to drug testing” means a test result that meets or exceeds the cutoff concentrations shown in 49 CFR § 40.87 (2009); and

(b) As used in ORS 676.190(5)(g), requiring a “licensee to submit to random drug or alcohol testing in accordance with federal regulations” means licensees are selected for random testing by a scientifically valid method, such as a random number table or a computer-based random number generator that is matched with licensees’ unique identification numbers or other comparable identifying numbers. Under the selection process used, each covered licensee must have an equal chance of being tested each time selections are made, as described in 40 CFR § 199.105(c)(5) (2009). Random drug tests must be unannounced and the dates for administering random tests must be spread reasonably throughout the calendar year, as described in 40 CFR § 199.105(c)(7) (2009).

“Fitness to Practice Evaluation” means the process a qualified, independent third-party evaluator uses to determine if the licensee can safely perform the essential functions of the licensee’s health practice.

“Final Enrollment” means a licensee has provided all documentation required by OAR 847-065-0035 and has met all eligibility requirements to participate in the HPSP.

“Health Professional Services Program” or “HPSP” or “Program” is a consolidated, statewide, standardized monitoring program for a health professional (Licensee) who is licensed by, certified by, or registered with one or more participating health professional licensing Boards.

“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.

“Licensee” means a licensed health care professional who is licensed or certified by at least one participating Board.

“Master Services Agreement” or “MSA” means this master agreement between DAS SPS and Contractor setting forth the terms and conditions and rates for the purchase of Services available to the Boards.

“Maximum Not-To-Exceed Compensation” is defined in section 8.

“Mental Disorder” means a clinically significant syndrome identified in the current DSM that is associated with disability or with significantly increased risk of disability.

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

“Monitoring Agreement” means an individualized agreement between a licensee and the contractor that meets the requirements for a diversion agreement set by ORS 676.190.

“Monitoring Consultant Meetings” are monthly or quarterly meetings between a Licensee and a Consultant to assess Licensee’s compliance, or ability to comply with, their Monitoring Agreement.

“OAR” means Oregon Administrative Rules.

“ORS” means Oregon Revised Statutes.

“Positive Toxicology Test Result” means a test result that meets or exceeds the cutoff concentrations shown in 49 CFR 40.87 (2009), a test result that shows other drugs or alcohol, or a test result that fails to show the appropriate presence of a currently prescribed drug that is part of a treatment program related to a condition being monitored by HPSP.

“Program Advisory Committee” is comprised of Board representatives and Contractor representatives. The Advisory Committee manages the day-to-day operation of the Program, facilitates transfer of Program between Contractors when applicable, resolves issues between the Boards and Contractor or escalates to contract administrators, and more. The Advisory Committee will meet monthly or quarterly as determined by the Boards.

“Program Work Group” facilitates the establishment and continuation of the Program as described in ORS 676.190. The Program Work Group shall elect one of its members to serve as a chairperson. The Program Work Group shall meet at times and places specified by the call of the chairperson or of a majority of the member of the Program Work Group. The Program Work Group may adopt rules necessary for the operation of the Program Work Group. The Oregon Medical Board shall provide staff support to the Program Work Group.

“Provisional Enrollment” means temporary enrollment, pending verification that a licensee meets all program eligibility criteria.

“Retention Amount” is defined in section 5.3 of a Work Order Contract.

“Self-referred Licensee” means a licensee who seeks to participate in the program without a referral from the Board.

“Services” means all effort to be expended by Contractor as set forth in a Work Order Contract entered into under this MSA.

“State” means the State of Oregon.

“Statement of Work” or “SOW” is Exhibit A to this MSA.

“Substance abuse” means a disorder related to the taking of a drug of abuse (including alcohol); to the side effects of a medication; and to a toxin exposure, including: substance use disorders (substance dependence and substance abuse) and substance-induced disorders (including but not limited to substance intoxication, withdrawal, delirium, and dementia, as well as substance-induced psychotic disorders and mood disorders), as defined in DSM criteria.

“Substantial Non-compliance” means that a licensee is in violation of the terms of his or her monitoring agreement in a way that gives rise to concerns about the licensee’s ability or willingness to participate in the HPSP. Substantial non-compliance and non-compliance include, but are not limited to, the factors listed in ORS 676.185(5). Conduct that occurred before a licensee entered into a monitoring agreement does not violate the terms of that monitoring agreement.

“Support Services” means the Application maintenance and support services made available to the Boards on a subscription basis through and as described in this MSA.

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

“The Number” is the unique sequence of numerical values that serve as an identifier for the enrolled Licensee. The number can not include any personally identifying sequences of numbers and will be unique to each Licensee and never assigned to another individual.

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

“Toxicology Testing” means urine testing or alternative chemical monitoring including blood, saliva, breath or hair as conducted by a laboratory certified, accredited or licensed and approved for toxicology testing.

“Treatment” means the planned, specific, individualized health and behavioral-health procedures, activities, services and supports that a treatment provider uses to remediate symptoms of a substance use disorder and/or mental disorder.

“Work Order Contract” or “WOC” means the form of contract attached as Exhibit E that once fully executed is a binding written agreement between a Board and Contractor for the Services to be performed and defining the obligations of the Board and Contractor, and includes any permitted supplementary terms and conditions.

“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 Board Intellectual Property, Contractor Intellectual Property, or Third-Party Intellectual Property.

TERM AND RIGHT TO RENEW.

Effective Date. The Effective Date of this MSA is, July 1,2025, or the date on which this MSA is fully executed and approved according to applicable laws, rules and regulations, whichever is later. This MSA terminates on XXXX unless otherwise terminated or extended in accordance with its terms.

RENEWAL OF MSA.

Only DAS SPS and Contractor may mutually agree to extend the term of this MSA.

DAS SPS Right to Renew. DAS SPS will exercise the option to extend, if at all, by giving Contractor written notice of such exercise no later than sixty (60) Calendar Days before the expiration of the then-current term, and the parties will negotiate in good faith and amend the MSA, as either party deems necessary. If the parties are unable to agree, this MSA will terminate at the expiration of the then current term. The initial term and all extension terms may be referred to as the “term” of this MSA.

Effect of Termination of MSA. Termination or expiration of the MSA will result in the termination of all Work Order Contracts..

Price Increase. Initial prices for Services that may be ordered under this MSA will remain firm for the Fiscal Years 2026, 2027, 2028, and 2029. Contractor may thereafter increase its prices no more than once every Year. To increase prices, Contractor shall submit a written notice to the Board(s) through the Program Advisory Committee and Contract Administrators who will then notify DAS SPS Administrator initiating an amendment to this MSA. The notice must include all proposed new pricing, and be submitted no later than sixty (60) Calendar Days prior to the date the Contractor desires to have the pricing become effective. Changes in prices may not exceed 4% over the prior period’s established pricing. Should DAS SPS reject any proposed price changes, either party may terminate this MSA at the end of the then current term.

Fixed Terms and Conditions. In accordance with ORS 279B.140, this MSA constitutes a firm offer by Contractor regardless of whether any Work Order has been made or any performance has been tendered under the MSA. This MSA is enforceable for the period stated in the MSA and, notwithstanding ORS 72.2050, obligations thereunder are not revocable by Contractor.

SCOPE OF SERVICES.

Purpose of Agreement. The purpose of this MSA is to establish the terms and conditions applicable to and the form of the Work Order Contract(s) to be used for the purchase of Services by a Board. DAS SPS makes no promise or representation that the Boards will request any Services from Contractor. The Boards may but are not obligated to enter into binding and enforceable contracts for purchase of Services, by execution of an approved Work Order Contract that specifies the Services to be delivered and makes the terms set forth in this MSA applicable to the purchase (“Contract”). Each executed Work Order Contract creates a separate Contract between a Board and Contractor that is enforceable according to its terms.

Services. Contractor shall provide the Services to the Boards as set forth in a Work Order Contract entered into under this MSA. A Board’s rights and obligations relating to the Services ordered through this MSA are as set forth in the applicable Work Order Contract.

ORDERING INSTRUMENTS.

Ordering Instruments for State of Oregon BOARDS. The Boards must use the Work Order Contract template set forth as Exhibit E to order Services under the MSA. No language in the Work Order Contract may amend or modify the terms and conditions of MSA. Negotiable provisions in Work Order Contracts are limited to:

Designation of Board and its authorized representative;

Contractor Key Persons;

Specifications of Services ordered;

Deletion of Services described in the MSA Payment retention amounts and payment information;

Applicable Work Order Contract provisions required by federal law, laws and regulations specific to the Board and applicable to the Work Order Contract.

Contractor’s Responsibilities.

Contractor shall only accept Work Orders that do not vary, amend, modify, or add MSA terms or conditions other than to specify the information referenced above.

Contractor shall only accept Work Order Contracts that do not add additional services to the MSA.

Sales to Unauthorized Purchasers: It is Contractor’s responsibility to verify a Board’s authority to contract pursuant to the MSA. If Contractor is found to have entered into two or more contracts under this MSA with an entity other than a Board, Contractor will be deemed to be in material breach of the MSA.

Sales of Services. Contractor agrees that all Services subscribed to through this MSA are subject to the Terms and Conditions in Exhibit A.

Performance Evaluations. DAS SPS or the Boards may conduct evaluations of Contractor’s performance during the term of this MSA. DAS SPS or the Boards will compile and maintain completed evaluations, which will become a written record of Contractor’s performance. DAS SPS or the Boards may provide copies of any documents in the written record disclosable under the Oregon Public Records Act to Contractor and third parties upon request. DAS SPS or the Boards may use performance evaluations in any way they deem necessary, in their sole discretion, including but not limited to making responsibility determinations and decisions to award, amend or terminate this MSA or Work Order Contracts.

CONTRACTOR’S PERSONNEL.

SERVICE MANAGER. Contractor's service manager(s) shall not delegate performance of the powers and responsibilities the Service Manager is required to provide under this MSA to another Contractor employee(s) without first obtaining the written consent of the DAS SPS, which shall not be unreasonably withheld or delayed. Further, Contractor shall not re-assign or transfer a Service Manager to other duties or positions such that the Service Manager is no longer available to provide the State with the required expertise, experience, judgment, and personal attention, without first obtaining DAS SPS's written consent through working with the Boards to such re-assignment or transfer, which DAS SPS and the Boards will not unreasonably withhold or delay. Notwithstanding the foregoing, Contractor may replace the Service Manager without DAS SPS’s consent if the Service Manager is no longer available due to promotion or transfer to another position or circumstances beyond Contractor’s reasonable control, such as death, illness, or termination of employment with Contractor. If Contractor requests that DAS SPS approve a re-assignment or transfer of the Service Manager, or if Contractor must replace the Service Manager, DAS SPS and/or the Boards may interview, review the qualifications of, and offer input on the proposed replacement for the Service Manager. Any such replacement must have substantially equivalent or better qualifications than the Service Manager being replaced. Any replacement personnel approved by DAS SPS will thereafter be deemed a Service Manager for purposes of this MSA.

Program Manager. Contractor shall designate a Program Manager for the duration of the MSA. The Program Manager shall:

Be familiar with the State’s business operations and objectives;

Serve as a primary point of contact for DAS SPS and the Boards for matters related to this MSA and resulting Work Order Contract(s);

Verify provided through this MSA are within the scope of Services agreed upon with DAS SPS.

Contractor’s Employees and Subcontractors. Contractor shall not use subcontractors to perform Services, including under any Work Order Contract, without DAS SPS’s and the relevant Board’s prior written consent. Contractor represents that any employees assigned to perform the Services, and any authorized subcontractors performing the Services, will perform the Services in accordance with the warranties set forth in this MSA and under any applicable Contract.

INDEPENDENT CONTRACTOR; TAXES AND WITHHOLDING.

Independent Contractor. Contractor shall perform all Services as an independent contractor. Although DAS SPS and the Boards reserve the right to evaluate the quality of the completed performance, DAS SPS and the Boards 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.

No Partnership. This MSA is not intended, and will not be construed, to create a partnership or joint venture between DAS SPS, the Boards and Contractor. Nothing in this MSA will be construed to make DAS SPS, the Boards and Contractor partners or joint venture participants.

Declaration and Certification AS TO CONFLICT OF INTEREST. Contractor by execution of this MSA certifies that (i) its performance under the MSA, including any Work Order Contract, creates no potential or actual conflict of interest as defined by ORS Chapter 244 for Contractor or any Contractor personnel who will perform Services, and (ii) if 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. Contractor also declares and certifies by execution of this MSA that it is not an “officer,” “employee,” or “agent” of DAS SPS or a Board, as those terms are used in ORS 30.265.

Responsible for Taxes. Contractor is responsible for all federal and state taxes applicable to compensation and other payments paid to Contractor under any Work Order Contract resulting from this MSA. Contractor is not eligible for any social security, unemployment insurance, or workers’ compensation benefits from compensation or payments paid to Contractor any Contract. The Boards will not withhold from such compensation and payments any amount to cover Contractor’s federal or state tax obligations.

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 MSA and any WOC. Contractor shall demonstrate its legal capacity to perform the Services under this MSA in the State of Oregon before entering into this MSA and any WOC.

Disclosure of Tax Identification Numbers. 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.

OWNERSHIP AND LICENSES.

Contractor Intellectual Property. Contractor retains ownership of all Contractor Intellectual Property that Contractor delivers to Board pursuant to the Services performed under a WOC. Contractor grants Board a license to Contractor Intellectual Property as set forth in Exhibit A of the MSA. In the event that Work Product is Contractor Intellectual Property, a derivative work based on Contractor Intellectual Property, or a compilation that includes Contractor Intellectual Property, and provided Board has paid any applicable licensing fee, Contractor grants Board a perpetual non-exclusive, irrevocable, royalty-free, world-wide license to use, copy, display, distribute, transmit and prepare derivative works of Contractor Intellectual Property employed in the Work Product, and to authorize others to do the same on Board’s behalf.

Work Product. Work Product, including derivative works and compilations, and whether or not such Work Product is considered a “work made for hire,” is the exclusive property of Board.

Third Party Intellectual Property. Unless otherwise specified in Exhibit A that Board, on its own, will acquire and obtain a license to Third Party Intellectual Property, Contractor shall secure on Board’s behalf, in the name of Board and subject to Board’s approval, a license to Third Party Intellectual Property provided to Board by Contractor during the term of the WOC necessary for Contractor to deliver WOC Services and Deliverables. Licenses for Third Party Intellectual Property are set forth in Exhibit A, and Exhibit A will be deemed to include any additional licenses for Third Party Intellectual Property approved by Board. In the event that Work Product is Third Party Intellectual Property, a derivative work based on Third Party Intellectual Property, or a compilation that includes Third Party Intellectual Property, Contractor shall secure on Board’s behalf and in the name of Board an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Third Party Intellectual Property and the pre-existing elements of the Third Party Intellectual Property employed in the Work Product, and to authorize others to do the same on Board’s behalf.

Open Source Elements. Any open-source materials provided by Contractor must be approved in advance and in writing by Board. If Contractor desires to include open-source materials, Contractor shall:

Notify Board in writing that the Deliverables contains open-source materials, Identify the specific portion of the Deliverable that contain open-source materials, and Provide a copy of the applicable license for each open-source item to Board.

Board Intellectual Property; Data and Background Information. Board owns all Board Intellectual Property and Board Data and background information provided to or collected by Contractor pursuant to a WOC. Board grants Contractor a non-exclusive, royalty-free, world-wide license to use, copy, display, distribute, transmit and prepare derivative works of Board Intellectual Property, Board Data and background information, and Work Product only to fulfill the purposes of a WOC. Board’s license to Contractor is limited by the term of the WOC and the confidentiality obligations of a WOC.

No Rights. Except as expressly set forth in a WOC, nothing in a WOC may be construed as granting to or conferring upon Contractor any right, title, or interest in any intellectual property that is now owned or subsequently owned by Board. Except as expressly set forth in a WOC, nothing in a WOC may be construed as granting to or conferring upon Board any right, title, or interest in any Contractor Intellectual Property that is now owned or subsequently owned by Contractor. 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 a WOC Competing Services. Subject to the provisions of this section 7, and Contractor’s obligations with respect to Confidential Information, including as defined in section 15, nothing in a WOC precludes or limits in any way the right of Contractor to: (i) provide services similar to those contemplated in a WOC, or, consulting or other services of any kind or nature whatsoever to any individual or entity as Contractor in its sole discretion deems appropriate, or (ii) develop for Contractor or for others, deliverables or other materials that are competitive with those produced as a result of the Services provided hereunder, irrespective of their similarity to the Deliverables. Each party is free to utilize any concepts, processes, know-how, techniques, improvements or other methods it may develop during the course of performance under a WOC free of any use restriction or payment obligation to the other.

COMPENSATION. Each WOC will include the maximum, not-to-exceed compensation that and Board will pay to Contractor for the Services (the “Maximum Not-To-Exceed Compensation”), including as amended, which includes payment for any allowable expenses for which Contractor may request reimbursement under a Contract. Contractor shall look solely to the Board who is the party to the Contract.

Amendments. This MSA or any WOC may be amended, modified, or supplemented only by a written amendment signed by DAS SPS and Contractor that, if required by applicable law, has been approved by DAS SPS and DOJ. Any amendment that provides for additional goods or Services may only provide for 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 DAS SPS or Contractor may request a change to this MSA, including all Exhibits hereto, by submitting a written proposal describing the desired change to the other party.

Publicity. Contractor agrees that news releases and other publicity relating to the subject of this MSA or WOC will be made only with the prior written consent of DAS SPS for the MSA or the respective Board for a WOC

CONTRACTOR’S REPRESENTATIONS AND WARRANTIES.

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

Contractor has the power and authority to enter into and perform this MSA and any WOC;

This MSA and any WOC, when executed and delivered, will be a valid and binding obligation of Contractor enforceable according to its terms;

Contractor will, at all times during the term of this MSA and any WOC, be qualified to do business in the state of Oregon, professionally competent and duly licensed to perform the Services;

Contractor is not in violation of, charged with nor, to the best of Contractor’s knowledge, under any investigation with respect to violation of, any provision of any federal, state or local law, ordinance or regulation or any other requirement or order of any governmental or regulatory body or court or arbitrator applicable to provision of the Services, and Contractor’s provision of the Services will not violate any such law, ordinance, regulation or order; and Contractor’s performance under this MSA and any WOC to the best of Contractor's knowledge creates no potential or actual conflict of interest, as defined by ORS 244, for either Contractor or any Contractor personnel that will perform Services.

The Certification Statement for Independent Contractor in the form attached hereto as Exhibit D, is true and accurate as of the Effective Date, and Contractor will notify DAS SPS in writing if any such data or certifications change during the term of this MSA such that the attached Exhibit D is no longer true and accurate.

Contractor’s Performance Warranties. Contractor represents and warrants that:

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

All Deliverables delivered by Contractor will materially conform to Acceptance Criteria set forth in a WOC, including the Statement of Work, and will be free from error or Defect that materially impairs their use, and be free from material defects in materials, workmanship, or design.

Contractor shall comply with the applicable requirements set forth in DAS Oregon Statewide IT and Information Security Policies, found at http://www.oregon.gov/DAS/op/Pages/policies.aspx, and also https://www.oregon.gov/eis/cyber-security-services/pages/guidance-for-state-agencies.aspx, as these policies are amended from time to time. In the event of a DAS IT Policy change that impacts the Services, the required change will be managed according to the Amendment process in section 9.

Except as otherwise provided in a WOC and section 7, Contractor shall transfer all Deliverables to Board 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.

Except as otherwise set forth in a WOC, any subcontractors performing work for Contractor under a WOC have assigned all of their rights in the Deliverables to Contractor or Board and no third party has any right, title or interest in any Deliverables supplied to Board under a WOC.

Contractor will maintain, operate and enforce, prior to the receipt of, and during the period in which Contractor has possession of or access to, any Personal Information, an active and effective information security program that at minimum complies with the requirements of the Oregon Identity Theft Protection Act (ORS 646A. 600 et. seq.) as well as NIST 800-53 rev. 5 Moderate or higher, to preserve the security and confidentiality of all Personal Information that is contained in any document, record, compilation of information or other item to which Contractor receives access, possession, custody or control.

Contractor shall comply with HIPAA in performance of the Services WARRANTIES CUMULATIVE; DISCLAIMERS. THE WARRANTIES SET FORTH IN THIS MSA, INCLUDING ANY EXHIBIT, AND SET FORTH IN ANY WORK ORDER CONTRACT ENTERED INTO UNDER THIS MSA, ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, AND CONTRACTOR EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

INDEMNITIES.

GENERAL INDEMNITY. Contractor shall defend, save, hold harmless, and indemnify the state of Oregon and its agencies, the Boards, subdivisions and its officers, employees and agents from and against all third party claims, suits, actions, losses, damages, liabilities, statutory penalties, costs and expenses of any nature whatsoever, for personal injury, death, damage to real property and damage to tangible personal property resulting from, arising out of, or relating to the intentional, reckless or negligent acts or omissions of Contractor or its officers, employees, subcontractors, or agents under this Contract, including any claim that Contractor, a subcontractor, or Contractor’s staff or a subcontractor’s staff are employees of the State or Board for any reason. Without limiting the generality of the foregoing, Contractor will have no obligation to indemnify DAS SPS, any Board or the state of Oregon from and against any claims, suits, actions, losses, damages, liabilities, costs and expenses attributable solely to the acts or omissions of DAS SPS, a Board or the state of Oregon, and their officers, employees or agents.

IP INDEMNITY. In addition to and without limiting the generality of section 12.1, Contractor expressly agrees to indemnify, defend and hold the state of Oregon and its agencies, the Boards, subdivisions, officers, directors, employees and agents harmless from any and all third party claims, suits, actions, losses, damages, liabilities, costs and expenses of any nature whatsoever resulting from, arising out of or relating to any claims that the permitted use of the Cloud Services or the Applications infringe or violate any United States patent, copyright, trade secret, trademark, trade dress, mask work, utility design, or other proprietary right (collectively, “Intellectual Property Rights”) of any third party. If Contractor believes at any time that the Services or the Applications infringe a third party’s Intellectual Property Rights, Contractor may, (i) replace an infringing item with a non-infringing item that meets or exceeds the performance and functionality of the replaced item; or (ii) obtain the right for continued use of the infringing item; or (iii) modify the infringing item to be non-infringing, provided that, following any replacement or modification made pursuant to the foregoing, the item continues to function in material conformance with the specifications set forth in the Documentation. If neither (i), (ii) or (iii) is commercially feasible Contractor may elect to terminate the Contract and the rights granted hereunder upon at least sixty (60) Calendar Days’ notice and provision of a refund of the Monthly Service Fees paid for the infringing elements of the Services covering the period of their unavailability. If Contractor does not or is unable to accomplish any of the foregoing, DAS SPS may terminate this Contract upon written notice to Contractor, or upon a longer period as DAS SPS may specify in its notice of termination. Contractor will not be liable under this section 12.2 for any claim for infringement based solely on the following:

Agency’s modification of the Deliverables than as contemplated by this Contract, or as otherwise authorized by Contractor in writing;

Use of the Deliverables a manner other than as contemplated in this Contract, or as otherwise authorized by Contractor in writing;

Or Use of the Deliverables in combination, operation, or use of with other products other than as contemplated by this Contract, or as otherwise authorized by Contractor in writing.

Control of Defense and Settlement. Contractor’s obligation to indemnify the State as set forth in sections 12.1 and 12.2 is conditioned on the State providing to Contractor prompt notification of any claim or potential claim of which DAS SPS or a Board becomes aware that may be the subject of those sections. Contractor will have sole control of the defense and settlement of any claim that is subject to section 12.1 or section 12.2 however, neither Contractor nor any attorney engaged by Contractor will defend the claim in the name of the state of Oregon or any agency of the state of Oregon, nor purport to act as legal representative of the state of Oregon or any of its agencies, without the approval of the Attorney General, nor will Contractor settle any claim on behalf of the state of Oregon without the approval of the Attorney General. The state of Oregon may, at its election and expense, assume its own defense and settlement in the event that the state of Oregon determines that Contractor is prohibited from defending the state of Oregon, is not adequately defending the state of Oregon’s interests, or that an important governmental principle is at issue and the state of Oregon desires to assume its own defense.

Damages to State Property and Employees. Contractor is liable for all claims, suits, actions, losses, damages, liabilities, costs and expenses 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 resulting from, arising out of, or relating to the intentional, reckless or negligent (subject to section 13.1.2) acts or omissions of Contractor or its officers, employees, subcontractors, or agents under this Contract.

Data and Network Services. Except to the extent that a claim or loss results from the negligent, reckless or intentional acts or omissions of Board, Contractor shall assume liability for all claims or losses related to data loss or breach of security caused directly or indirectly by or resulting from the Services provided by Contractor.

LIMITATION OF LIABILITY.

LIMITATION OF LIABILITY - GENERAL

EXCEPT FOR LIABILITY ARISING OUT OF OR RELATED TO (i) SECTION 12.1, (ii) SECTION 12.2, (iii) SECTION 12.5, (iv) SECTION 15 , (v) LIQUIDATED DAMAGES ASSESSED UNDER THIS CONTRACT, OR (vi) CLAIMS FOR PERSONAL INJURY, INCLUDING DEATH, OR DAMAGE TO REAL PROPERTY OR TANGIBLE OR INTANGIBLE PERSONAL PROPERTY ARISING FROM THE NEGLIGENCE, RECKLESS CONDUCT OR INTENTIONAL ACTS OF CONTRACTOR, ITS OFFICERS, EMPLOYEES OR AGENTS, CONTRACTOR'S LIABILITY FOR DAMAGES TO THE STATE FOR ANY CAUSE WHATSOEVER IS BE LIMITED TO ONE AND ONE HALF TIMES THE MAXIMUM-NOT-TO-EXCEED AMOUNT OF THE CONTRACT.

EXCEPT FOR LIABILITY TO THIRD PERSONS ARISING OUT OF OR RELATED TO (i) SECTION 12.1, (ii) SECTION 12.2, (iii) SECTION 12.5, (iv) SECTION 15, OR (v) CLAIMS FOR PERSONAL INJURY, INCLUDING DEATH, OR DAMAGE TO REAL PROPERTY OR TANGIBLE OR INTANGIBLE PERSONAL PROPERTY ARISING FROM THE NEGLIGENCE, RECKLESS CONDUCT OR INTENTIONAL ACTS OF CONTRACTOR, ITS OFFICERS, EMPLOYEES OR AGENTS NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOST SAVINGS, OR PUNITIVE, INDIRECT, EXEMPLARY, CONSEQUENTIAL, OR INCIDENTAL DAMAGES.

1.1. Liability under section 10, section 12.4 and section 12.5.

1.1.1. In the event of an unauthorized disclosure of Personal Information in violation of Contractor’s obligations under section 15, Contractor is liable for all costs of privacy breach notifications in accordance with applicable law, and all statutory claims, damages, and regulatory fines and fees.

INSURANCE. Contractor shall provide insurance as required by Exhibit B.

CONTRACTOR’S DUTIES OF CONFIDENTIALITY AND NON-DISCLOSURE

Confidential Information. Contractor acknowledges that it and its employees or agents may, in the course of performing the Services under a WOC, be exposed to or acquire information that is confidential to the Board’s licensees and clients. Any and all information of any form obtained by Contractor or its employees or agents in the performance of a WOC is deemed to be confidential information of the Board (“Confidential Information”). Contractor shall treat any reports or other documents or items (including software) that result from the use of the Confidential Information in the same manner as the Confidential Information. Confidential Information does not to include information that (i) is or becomes (other than by disclosure by Contractor) publicly known; (ii) is furnished by the Boards to others without restrictions similar to those imposed by a WOC; (iii) is rightfully in Contractor’s possession without the obligation of nondisclosure prior to the time of its disclosure under a WOC; (iv) is obtained from a source other than the Boards without the obligation of confidentiality, (v) is disclosed with the written consent of Board, or; (vi) is independently developed by employees, agents or subcontractors of Contractor who can be shown to have had no access to the Confidential Information.

Non-Disclosure. Contractor shall hold Confidential Information in confidence, using the highest standard of care applicable, and shall not copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information to third parties (other than its authorized subcontractors), or use Confidential Information for any purposes whatsoever other than the provision of Services to the Boards hereunder, and shall advise each of its employees and agents of their obligations to keep Confidential Information confidential. Contractor shall assist the Boards in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the generality of the foregoing, Contractor shall advise affected Board immediately in the event Contractor learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of a WOC, and Contractor will at its expense cooperate with affected Board in seeking injunctive or other equitable relief in the name of Board or Contractor against any such person. Contractor shall not at any time during or after the term of a WOC, except as directed by Board, disclose, directly or indirectly, any Confidential Information to any person, except in accordance with a WOC, and that upon termination of a WOC or at Board’s request, Contractor shall deliver to the respective Boards all information including digital information, documents, papers, and other matter in Contractor's possession that embody Confidential Information. Notwithstanding the foregoing and unless otherwise specified in a WOC, Contractor may keep one copy of such Confidential Information necessary for quality assurance, audits and evidence of performance of the Services.

Identity Theft. In the performance of a WOC, Contractor may have possession or access to documents, records or items that contain “Personal Information” as that term is used in ORS 646A.602(11), including social security numbers. Personal Information is a type of Confidential Information that is highly sensitive and subject to additional protection. Therefore, prior to the receipt of, and during the period in which Contractor has possession of or access to, any Personal Information, Contractor 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 Identity Theft Protection Act, ORS 646A.600-646A.628.

In addition to and without limiting the generality of sections 15.1 and 15.2, Contractor 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 Contractor receives access, possession, custody or control under a WOC. Contractor shall not disclose, or otherwise permit access of any nature, to any unauthorized person, of any such Personal Information. Contractor shall not use, distribute or dispose of any Personal Information other than expressly permitted by the respective Board, required by applicable law, or required by an order of a tribunal having competent jurisdiction.

Contractor shall report, within 48 hours, to the affected Board 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 Contractor receives access, possession, custody or control in the performance of a WOC.

Contractor shall require the compliance of its employees, agents, and subcontractors with this section.

Security Policies / Non-Disclosure Agreement / Criminal Background Check. The following is required of Contractor and its employees, agents, and subcontractors performing services under a WOC:

Security Policies. Contractor shall comply at all times with Board’s security policies as they are stated in a WOC or otherwise made available to Contractor. Upon DAS SPS or Board’s request Contractor shall provide its security policies.

Non-Disclosure Agreement. Upon Board’s request, Contractor shall provide a written non-disclosure agreement and obtain such from Contractor’s employees, agents, and subcontractors performing Services under a WOC.

Contractor shall provide to the Board its Criminal Background Check policy including amendments and represents and warrants that it will comply with the policy.

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

Injunctive Relief. Contractor acknowledges that breach of this section 159, including disclosure of any Confidential Information, will cause irreparable injury to Board that is inadequately compensable in damages. Accordingly, a Board may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available. Contractor acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of Board and are reasonable in scope and content.

CONTRACTOR’S PROPRIETARY INFORMATION; OREGON PUBLIC RECORDS LAWS. The Boards will use reasonable efforts to maintain the confidentiality of any proprietary information received from Contractor and will not use such proprietary information except to fulfill its obligations under a WOC and applicable state and federal law.