Attachment A - Sample MSA- Communications7.18.22.docx

DRAFT

MASTER SERVICES AGREEMENT

COMMUNICATIONS PRODUCTS AND SERVICES

This Master Services Agreement for Communications Products and Services (“MSA”) is between the State of Oregon, acting by and through its Department of Administrative Services, Procurement Services (“DAS”) on behalf itself, other state agencies ( “Authorized Purchaser”) and ____________________ (“Contractor”).

RECITALS

A. From time to time, Authorized Purchasers desire to obtain basic telephone and communications services (“Services”) and purchase equipment and software (“Products”) from Contractor, as described herein and as will be more fully described in individual SOs. To that end, DAS issued Request for Proposal #_______________ (“RFP”).

B. Contractor was a successful proposer to the RFP, and DAS desires Contractor to perform the Services and provide the Products.

C. Contractor is willing to perform Services and provide the Products for Authorized Purchasers.

AGREEMENT

Now, therefore, the parties agree as follows:

1. Definitions. The following definitions apply to this MSA and all SOs:

“ALI” means Automatic Location Identification.

“ANI” means Automatic Number Identification.

“Authorized Purchaser” means DAS, all State Agencies and participating ORCPP members with appropriate purchasing authority under their applicable rules or regulations that submit SOs.

“Authorized Purchaser Data” means any information of Authorized Purchaser or its end users transmitted to, processed by, created by and/or stored by Contractor on behalf of Authorized Purchaser, pursuant to this MSA, including CPNI.

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

“Best Value Comparison” means the method of determining a contractor to provide the best value to Authorized Purchaser under the given circumstance and awarded a Contract pursuant to this MSA as described in Section 2.

“Business Day” 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 Day” means contiguous day.

“Chronic Outage” means a Service or a Product that has experienced three separate trouble tickets opened against it, by Authorized Purchaser or Contractor, for the same/similar symptom(s) or problem(s) over a rolling 30-day period, resulting in the Service or Product being incapable of making or receiving phone calls for any length of time.

“Complex/Project MACD” includes all additions, deletions and modifications that fall outside Simple or Soft Remote Moves, Adds, Changes, or Deletions (“Remote MACD”) that are related to Authorized Purchaser, involve non-routine configuration changes for which scope, timeframe and fulfillment are subject to agreement between Authorized Purchaser and Contractor, that are to be performed by Contractor via remote delivery, and at a Authorized Purchaser location as needed.

“Contractor Intellectual Property” means any intellectual property that is owned by Contractor, which includes any proprietary software, networks or systems and contained in or necessary for the use of the Products and/or Services.

“CPE” means Customer Premises Equipment.

“Customer Proprietary Network Information” or “CPNI” means all information that relates to the quantity, technical configuration, type, destination, location and amount of use of a Service by an Authorized Purchaser’s end user, which includes the time, date, duration and destination number of each call, the type of network a consumer subscribes to, and any other such information that appears on the Authorized Purchaser’s telephone bill.

“Defect” means a failure, fault or shortcoming of a Product or Service to meet a specification.

“Error” means any failure of a Product or Service to conform in material respects to the specifications delivered to Authorized Purchaser on or after the cutover, implementation or installation date of the Product or Service.

“Firewall” means a set of related programs, located at a network gateway server that is designed to allow or deny certain hosts or networks to speak to each other, based on a set security policy.

“Incident” means Authorized Purchaser’s report of an Error to Contractor.

“IPC” means IP communications, which consists of devices, applications, or end-points that, individually or in combination, enable the transmission of packetized voice, video, or data.

“IPsec” means Internet Protocol security.

“LAN” means local area network.

“Measurement Period” for the purposes of SLAs means one calendar month.

“MRCs” means monthly recurring charges.

“MACD(s)” means moves, adds, changes, and deletions.

“NRCs” means non-recurring charges.

“POTS” means plain old telephone service.

“PSTN” means the Public Switched Telephone Network.

“Priority 1 Incident (P1)” means an incident which results in severe impacts to the operation of the Services or Products or its function or applications in a production environment and/or causes continuous interruption of use of the Services or Products, for which the Contractor does not have an available workaround.

“Priority 2 Incident (P2)” means an incident which results in substantial restricted use of the Services or Products and/or intermittent disruption of use of the Services or Products, for which Contractor does not have an available workaround.

“Priority 3 Incident (P3)” means an incident which does not meet the criteria of a P1 or P2 and which causes minimal restriction of use of the Services or Products and/or has a minimal business impact on Authorized Purchaser and/or there may be a workaround.

“Products” means the hardware, software, equipment, supplies, and materials to be provided by Contractor as more fully described in Exhibit A.

“Remote MACD” means Contractor’s remote fulfillment of a standard service request which is related to the Products and/or Services. These Remote MACD service requests, also known as “Simple or Soft Remote MACD (Moves, Adds, Changes or Deletes)”, involve routine configuration changes, that are to be performed by Contractor via remote delivery, and delivered from a remote Contractor location.

“Root Cause Analysis” means a report which provides an overall view to the cause of a P1 incident or upon request details of a Chronic Outage. This report includes event correlation data, identification of preventive measures, and recommendations including plans to prevent such incidents from reoccurring in the future.

“Service Level Agreement”, “Service Level Guarantee” or “SLA” means the guarantees that define specific elements of the Services or performance guarantees for the Products and/or Services, periods of time during which performance will be measured, measurable conditions for determining successful completion or performance, and consequences for not meeting the SLA. SLAs are in Exhibit B.

“Services” means all services to be performed by Contractor as described in Exhibit A, including: basic telephone and other communications services, installation, configuration, implementation, architecture, engineering, consulting, maintenance and repair, customer support, and training as more fully described in Exhibit A.

“Services Order” or “SO” means the contract formed by the ordering instrument issued by an Authorized Purchaser (with accompanying statement of work, if applicable), incorporating the terms and conditions of this MSA, and accepted by Contractor.

“Service Restoration” occurs when the Authorized Purchaser confirms the Service or Product is returned to a usable state. Workarounds are considered as restored for SLAs regarding time to restore.

“State” means the State of Oregon.

“State Agency” or “State Agencies” means agencies, boards, commissions, departments, or divisions of the State of Oregon, whose costs are paid, in whole or in part from funds held in the State Treasury.

“Time to Respond” means the time between End User requesting a ticket as denoted by the time the incident is logged into the Contractor's ticketing system and Contractor responding that Contractor is working on the ticket.

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

2. MSA; Order of Precedence; Amendments and Establishment of New MSAs.

2.1. Term. This MSA is effective upon the date signed by all parties and receipt of all approval as required by law (“Effective Date”). This MSA terminates on ____________________ (“Initial Term”), subject to DAS’ right to renew for additional periods (“Renewal Terms”), provided that the total term may not exceed ten (10) years from the Effective Date.

2.2. Order of Precedence. This MSA is comprised of the following documents listed in the order of precedence:

1) The terms and conditions of this MSA;

2) Exhibit E, Federal Terms and Conditions

3) Exhibit F, Security and Privacy Requirements and its attachments (FTI Compliance and CJIS Addendum)

4) Exhibit B, Performance Metrics and Service Level Guarantees

5) Exhibit A, Description of Products and Services (including requirements); Rates; and its attachments (Fees, Taxes and Surcharges; LOA; 911 Statement)

6) Exhibit C, Insurance Requirements

7) Exhibit D, Parties’ Personnel

To the extent provisions contained in more than one of the documents listed above apply in any given situation, the parties agree: (i) to read such provisions together whenever possible to avoid conflict, and (ii) to apply the order of precedence only in the event of an irreconcilable conflict. The MSA and its exhibits take precedence over any terms and conditions published by Contractor on or after the Effective Date of this MSA, including Service Guides, product documentation, tariffs, or any terms presented to an end user in a ‘click wrap’ or similar end user agreement.

2.3. Exclusivity. This MSA is not exclusive. Authorized Purchaser shall be free to purchase Products and Services as described on Exhibit A (“Products” or “Services”) or similar products and services from any other contractor.

2.4. New Provisions or New MSAs. From time to time, DAS may add Products or Services to an existing MSA or enter into new MSAs with other contractors upon the occurrence of one of the following conditions (“Condition” or “Conditions”):

2.4.1. Process for Amending Existing MSAs. DAS, in its sole discretion, may add Products or Services to an existing MSA on an as-needed basis from time to time in order to fulfill a Condition(s). This process will be conducted in accordance with Section 33 below.

2.4.2. Shortened Solicitation Process for Awarding New MSAs. DAS may establish new MSAs for Products or Services on an as-needed basis from time to time in order to fulfill a Condition(s). This will be conducted as an objective written shortened solicitation process. This process will start with an announcement on OregonBuys (“Notice”) to be advertised for a time period which DAS deems reasonable under the circumstances. The Notice will include, but not be limited to, a description of the Services required, response submission requirements, form Master Services Agreement, evaluation criteria/selection process, and a collective protest period.

At no time will the term, including all available renewal options, of any new MSA established under this section exceed ten (10) years commencing from the effective date of the first MSA awarded as a result of the initial RFP.

3. Selection Process; Best Value Comparison; Issuance of Service Orders.

3.1. Best Value Comparison. From time to time, Authorized Purchaser may purchase Products and/or Services as described in Exhibit A from Contractor or other contractors pursuant to the following selection process. Authorized Purchaser shall:

iv. Issue an individual SO (“SOs”) to selected contractor for the Products and/or Services. All SO(s) incorporate the terms and conditions of this MSA and may be in a form as agreed upon by Authorized Purchaser and Contractor, but include the following, as applicable:

· MSA Number and SO Number

· Description of the Products and/or Services, as applicable

· Service Agreement Levels

· Maintenance and Customer Support Levels

· Purchase Price or Rate (including any discount, if applicable)

· Delivery and Installation Dates

· Delivery Location

· Special Considerations and Specifications

v. Document its files on the process, considerations, findings, and decisions used for determining the contractor through the Best Value Comparison.

3.2. Small Orders. State Agency Authorized Purchasers may issue a SO to the contractor its choice without a Best Value Comparison as set forth in ORS 279B.065, Small Procurements.

3.3. DAS Threshold. State Agencies under DAS procurement authority may acquire Products and/or Services under this MSA for any dollar amount without further delegation of procurement authority from DAS. Notwithstanding the foregoing DAS delegation, State Agencies must obtain all other necessary approvals, including but not limited to legal sufficiency approval, as may be required.

3.4. Non-State Agency Authorized Purchaser. Non-State Agency Authorized Purchasers may issue SOs as permitted by their governing statutes, rules and/or ordinances.

3.5. Effect of Purchase Orders. The State is only liable for purchases under SOs issued by State of Oregon agencies. Other Authorized Purchasers are responsible for any purchases under SOs they issue. The State expressly disclaims any liability for purchases made by non-State Agency Authorized Purchasers or any other entity.

3.6. Funds available and authorized/non-appropriation. The State of Oregon’s and its agencies’ payment obligations under this MSA are conditioned upon Authorized Purchaser receiving funding, appropriations, limitations, allotments, or other expenditure authority sufficient to allow Authorized Purchaser, in the exercise of its reasonable administrative discretion, to meet its payment obligations under any SO. Contractor is not entitled to receive payment under this MSA or any SO from any part of Oregon state government other than Authorized Purchaser. Nothing in this MSA or a SO is to be construed as permitting any violation of Article XI, section 7 of the Oregon Constitution or any other law regulating liabilities or monetary obligations of the State of Oregon. Authorized Purchaser represents that it has sufficient appropriations and limitation for the current biennium to make payments under any SO.

4. Products and Services.

4.1. Responsibilities of Contractor. Contractor shall perform the Services and deliver the Products as set forth in the applicable SO, in accordance with the provisions of this MSA, including the Performance Standards Service Level Guarantees set forth in Exhibit B and in compliance with information technology standards established by Enterprise Information Services (EIS), found at: https://www.oregon.gov/das/Pages/policies.aspx, which may be updated from time to time. Contractor shall cooperate with Authorized Purchaser and its designated third party contractors by providing access and information on Contractor’s Services (such as: architecture, design, operating environment, security, interfaces, and operating parameters) as required for all oversight activities and Authorized Purchaser-identified third party services.

4.2. Authorized Purchaser Responsibilities. If a SO requires Authorized Purchaser to provide any resources, and Authorized Purchaser 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 thirty (30) Calendar Days, Contractor’s sole remedy is an extension of the applicable delivery dates corresponding to the delay caused by Authorized Purchaser.

4.3. Performance and Delivery. Contractor shall perform the Services and provide the Products to Authorized Purchaser as set forth in the SO.

4.3.1. Services. Contractor shall provide to Authorized Purchaser, on a monthly basis, the telephone and communications services, as described in Exhibit A, including installation, configuration, implementation, testing, training, invoicing and billing, back office, operations and maintenance, help desk and customer service and support, trouble/repair services and support, monitoring and management of specific applications and CPE, and consulting and as set forth in the applicable SO.

4.3.2. Acceptance of Services. Unless otherwise set forth in a SO, Authorized Purchaser shall commence acceptance testing on the first day following notification from Contractor that all Services have been installed as required by this MSA or the SO. Unless otherwise agreed, Authorized Purchaser shall have a thirty (30) Calendar Day period ("Acceptance Test Period") to test the functionality of the Services or Products to determine whether they perform in accordance with the requirements of this MSA, SO, and in accordance with the manufacturer’s official published specifications.

4.3.3. Sale and Delivery of Products; Necessary Components. Contractor shall deliver and install the Products as described in SO and shall provide any component, hardware or part necessary for proper installation and operation even though that item is not specifically described in the exhibit or in any specifications.

Contractor shall ship all Products F.O.B. to the location designated in the SO, with all transportation and handling charges paid by Contractor. Contractor shall ship Product no later than the date set forth on the SO or as otherwise agreed by the parties. Contractor shall install the Products no later than the date set forth on the SO or as otherwise agreed by the parties. Contractor accepts the risk, responsibility and liability for loss or damage to the Hardware. This risk shall remain with Contractor until acceptance of the Hardware by Authorized Purchaser. However, during the period between delivery of the Product to Authorized Purchaser and prior to Authorized Purchaser’s acceptance, Contractor shall not be responsible for loss or damage that results from Authorized Purchaser’s use of the Product with a product that is not authorized by Contractor, Authorized Purchaser’s misuse or unauthorized modification of the Product, improper maintenance of the Product by Authorized Purchaser, or Authorized Purchaser’s storage or operation of the Product in a physical or operating environment that Contractor has advised Authorized Purchaser is unsuitable for the Product.

4.3.4. Ongoing Services; Maintenance and Repair. Contractor shall maintain, repair and replace the Products and/or Services listed in the SO, including any embedded software, in accordance with the manufacturer’s specifications. Contractor will provide all necessary labor, tools, and materials, and will repair or replace, at its option, any necessary parts in connection with any CPE maintenance service. All parts and materials will be of equal quality to the original and may be new or used with equivalent-to-new performance characteristics. Maintenance services exclude all services not specifically agreed to in writing by Contractor.

4.3.5. Monitoring and Reporting. Contractor shall utilize the necessary measurement and monitoring tools and procedures required to measure and report Contractor’s performance of the Services against the applicable Service Levels. Contractor shall monitor all Services and report on a monthly basis to DAS. Contractor shall meet with DAS on a regular basis (at least quarterly) to review and report on sales of Services and Products, performance and maintenance and repair issues, performance against service level, risks and mitigation, upcoming Products and/or Services, upgrades, enhancements, and such other issues as the parties deem important.

4.3.6. Upgrades. Contractor shall furnish Upgrades to the Services to Authorized Purchaser 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.

4.3.7. Enhancements. Contractor shall inform Authorized Purchaser of the availability of Enhancements for which a separate license fee and license agreement are required. If an Enhancement is licensed by Authorized Purchaser under an amendment to this MSA and a SO Authorized Purchaser understands additional fees may apply.

4.3.8. Technology Refresh. It is Contractor’s intent to provide Authorized Purchaser with Services which meet or exceed industry standards for the duration of the MSA and the SO. As such, and subject to the terms and conditions of this MSA, Contractor shall use commercially reasonable efforts to upgrade the Services to support new frequencies, technologies, and services during the MSA 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 Authorized Purchaser and its end users, provided that (i) such actions by Contractor do not impair Authorized Purchaser's rights hereunder or result in any interference with Authorized Purchaser 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 MSA. In the event that Contractor’s upgrading of equipment, hardware or software or deployment of new technologies would involve changes or interference with Authorized Purchaser’s operations or Authorized Purchaser equipment or facilities used to access the Services, then Contractor shall request DAS’ and Authorized Purchaser's prior written approval, which will not be unreasonably withheld, conditioned, or delayed.

4.3.9. Transition Services. Upon termination of a SO, Contractor shall continue to provide Services and shall support a responsible and secure transition of the Services and Authorized Purchaser Data to another service provider or to Authorized Purchaser (“Transition Services”) without causing any unnecessary interruption of or adverse impact on the Services. Without limiting the generality of the aforementioned obligations, Contractor shall:

· Cooperate with Authorized Purchaser and any Authorized Purchaser-designated provider by promptly taking all steps required to assist Authorized Purchaser in designing and completing the Transition Plan.

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

· Promptly and orderly conclude all Services as Authorized Purchaser may direct. This includes the documentation of work in progress, return of property under Section 16.6, and other measures to provide an orderly transition to Authorized Purchaser and any Authorized Purchaser-designated provider.

4.4. Performance Metrics and Service Level Guarantees. In the performance of the Services and delivery of the Products, Contractor shall meet or exceed the SLAs set forth in Exhibit B. Contractor shall monitor its performance and send DAS a monthly report. Contractor shall meet quarterly with DAS to:

5. Invoice and Payment.

5.1. Invoices. Contractor shall submit invoices to Authorized Purchaser as set forth in SO. Contractor may submit invoices no more frequently than once per month. The invoices must describe all MRCs, NRCs, Services performed and Products delivered with particularity. Contractor may invoice Authorized Purchaser in advance for all MRCs. Contractor may invoice Authorized Purchaser for all Products and NRCs upon acceptance of the Products and/or Service by Authorized Purchase. The invoice should include:

· the MRC and, if applicable,

· the Products that were accepted during the previous month, and if applicable,

· for NRCs: the dates Contractor performed the Services for which it is requesting payment, where Services were performed, itemization of the costs and expenses that the SO requires Authorized Purchaser to pay and for which Contractor claims reimbursement.

5.2. Invoices must be timely and 100% accurate. Invoices for all NRCs and Products must be delivered within ninety (90) days of acceptance.

5.3. Taxes, Fees and Surcharges. Contractor may pass on to Authorized Purchaser those taxes, fees and surcharges identified in Exhibit A-1, that Contractor is permitted by law to pass on to a customer and are passed on to all customers and from which Authorized Purchaser is not otherwise exempt. If Contractor is passing on any tax, fee or surcharge: (i) the tax, fee, or surcharge must be one that is passed on to all customers in an equitable manner; and (ii) Contractor has not marked up or added any charges to the tax, fee or surcharge.

5.4. Authorized Purchaser shall review each invoice for accuracy. In the event Authorized Purchaser discovers a deficiency, Authorized Purchaser shall send Contractor written notice disputing the charge and detailing the reason for the dispute. Contractor shall review the dispute and respond to Authorized Purchaser within ninety (90) days with a revised invoice or rejection of the dispute. Authorized Purchaser shall pay Contractor all undisputed amounts. Contractor may assess overdue account charges up to a maximum rate of two-thirds of one percent per month (8% per annum) on the outstanding balance for undisputed amounts remaining unpaid forty-five (45) calendar days after the date of the invoice. All payments are subject to ORS 293.462.

5.5. Expenses. Authorized Purchaser will not pay or reimburse any expenses incurred by Contractor during the completion of the Services except as authorized in the SO or elsewhere in this MSA. Any such authorized travel expenses must comply with the Oregon Travel Policy available at: https://www.oregon.gov/das/Financial/Acctng/Documents/40.10.00.pdf

5.6. Payment of Contractor Claims. If Contractor fails, neglects or refuses to pay promptly, as due, any claim for labor or services furnished to the Contractor or any subcontractor by any person in connection with the Products provided under this MSA or any SO, Authorized Purchaser may, but is not obligated to, pay such claim and charge the amount of the payment against funds due or to become due the Contractor under this MSA or any SO. The payment of a claim by Authorized Purchaser pursuant to this paragraph shall not relieve the Contractor or its surety, if any, from obligation with respect to any unpaid claims.

6. Volume Sales Reports and Vendor Collected Administrative Fee. Contractor shall submit volume sales reports and pay the two percent (2%) of total sales administrative fee as set forth at https://www.oregon.gov/das/Procurement/Pages/Supplier.aspx.

7. Ownership and Licenses; Title.

7.1. Authorized Purchaser Data and Intellectual Property. Authorized Purchaser owns all Authorized Purchaser Intellectual Property, including Authorized Purchaser Data. Authorized Purchaser grants Contractor a license to use Authorized Purchaser Intellectual Property, including Authorized Purchaser Data and Work Product only to fulfill the purposes of this MSA.

7.2. Contractor Intellectual Property. Contractor retains ownership of all Contractor Intellectual Property that Contractor delivers to Authorized Purchaser pursuant to this MSA. Contractor grants Authorized Purchaser a license to use, copy, display, distribute, transmit and prepare derivative works of Contactor Intellectual Property only to fulfill the purposes of this MSA.

7.3. Work Product. All Work Product created by Contractor pursuant to the Services, including derivative works and compilations of Work Product, and whether or not such Work Product is considered a work made for hire or an employment to invent, is the exclusive property of Authorized Purchaser.

7.4. Other Licenses. To the extent any Products or Services are subject to the provisions of a license agreement, subscription agreement, maintenance and support agreement or any third-party agreement, Contractor shall provide Authorized Purchaser with a copy of any such agreement. Purchasing Entity shall have thirty (30) calendar days to review the agreement. Authorized Purchaser may accept the terms of the agreement, reject the terms, or attempt to negotiate the terms with the provider. In the event Authorized Purchaser rejects the terms or is unable to come to agreement with the provider, Authorized Purchaser may revoke the SO and will be entitled to a full refund of all amounts paid and will not be subject to any early termination fees.

7.5. Open Source Elements. Any open source materials subject to a license must be approved in advance and in writing by Authorized Purchaser. If Contractor desires to include open source materials, Contractor shall notify Authorized Purchaser in writing that Contractor intends to include open source materials in the Products and/or Services; identify the specific use, and provide a copy of the applicable license for each open source item to Authorized Purchaser.

7.6. No Rights. Except as expressly set forth in this MSA, nothing in this MSA may be construed as granting to or conferring upon either party any right, title, or interest in any intellectual property that is now owned or subsequently owned by the other. Neither party grants the other the right to use its trademarks, trade names, service marks or other designations in any promotion or publication without prior written consent. Each party grants only the licenses and rights specified in this MSA.

7.7. Title. Title to the Products passes to Authorized Purchaser upon Final Acceptance and payment by Authorized Purchaser to Contractor.

8. Confidential Information.

8.1. Confidential Information. The parties acknowledges that they and their employees or agents may, in the course of performing its responsibilities under this MSA or SOs, be exposed to or acquire information that is confidential to the other party(s) or the other party’s clients. Any and all information of any form obtained by one party or its employees or agents in the performance of this MSA is confidential information of the other party (“Confidential Information”). The parties shall treat any reports or other documents or items (including software) which result from the use of the Confidential Information by the recipient of such information with respect to confidentiality in the same manner as the Confidential Information.

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

The following information is not subject to the obligations of non-disclosure, information that (i) is or becomes (other than by disclosure by the party acquiring such information) publicly known or is contained in a publicly available document; (ii) is furnished by the party disclosing such information to others without restrictions similar to those imposed by this Contract; (iii) is rightfully in the receiving party’s possession without the obligation of nondisclosure prior to the time of its disclosure under this MSA; (iv) is obtained from a source other than the discloser without the obligation of confidentiality, (v) is disclosed with the written consent of the disclosing party, or; (vi) is independently developed by employees or agents of the receiving party who can be shown to have had no access to the Confidential Information.

8.3. Each party shall use commercially reasonable efforts to assist the other in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limitation of the foregoing, each party shall advise the other immediately in the event it learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this MSA and each party will at its expense cooperate with the other in seeking injunctive or other equitable relief in the name of the other against any such person.

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

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

8.6. The State’s and Authorized Purchaser’s obligations under this section 15 shall be subject to the Oregon Public Records Laws, ORS 192.311 through ORS 192.418.

8.7. Contractor agrees that it will not disclose the form, content or existence of this MSA in any advertising, press releases or other materials distributed to prospective customers, or otherwise attempt to obtain publicity from its association with the State of Oregon without the prior written consent of DAS.

8.8. Privacy and Security Requirements. Contractor shall comply with all laws, regulations, and policies governing access to and use of Authorized Purchaser Data, including as required in the Privacy and Security Requirements set forth in Exhibit F, or elsewhere in this MSA.

8.8.1. If Authorized Purchaser Data includes Federal Tax Information, Contractor shall comply with the provisions set forth in Exhibit F-1, Federal Tax Information Certification.

8.8.2. If Authorized Purchaser Data includes Criminal Justice Information, Contractor shall comply with the provisions set forth in Exhibit F-2, Criminal Justice Information Services Addendum.

8.8.3.

8.9. If Authorized Purchaser Data is subject to other privacy and/or security requirements, Authorized Purchaser shall notify Contractor, and Contractor shall comply with all such requirements. Each party acknowledges that breach of this section 8, including disclosure of any Confidential Information will give rise to irreparable injury which is inadequately compensable in damages. Accordingly, each party 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. Each party acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of the other and are reasonable in scope and content.

9. Warranties. Contractor represents and warrants:

9.1. Contractor has the power and authority to enter into and perform this MSA and any SO;

9.2. this MSA, when executed and delivered, shall be a valid and binding obligation of Contractor enforceable in accordance with its terms;

9.3. Contractor shall perform the installation, training and maintenance services set forth in this MSA in accordance with the highest professional standards prevailing in Contractor’s profession and in compliance with the requirements of this MSA and shall meet or exceed the Performance Metrics and Service Level Guarantees set forth in Exhibit B;

9.4. Contractor shall, at all times during the term of this MSA, be qualified and competent, and shall maintain in effect any necessary licenses, certificates, or permits necessary to perform the work set forth in this MSA;

9.5. the Products will be free and clear of any liens or encumbrances and shall be new and unused (and, if applicable, the current model) and shall carry full manufacturer warranties and shall be delivered with complete documentation;

9.6. Contractor warrants that all Products delivered to Authorized Purchaser shall be free from defects in labor, material and manufacture, shall be in compliance with the specifications set out in this MSA, and shall be suitable for the operating environment in which it is installed. Contractor shall furnish the details of both Contractor's and manufacturer's warranties on materials and workmanship;

9.7. the Software is free from any adverse claims asserted by third parties and that the Software licensed to Authorized Purchaser shall conform to its published documentation and such complete documentation will be delivered to Authorized Purchaser with the Software.

9.8. Warranties are Cumulative. Contractor’s warranties provided in this Section are in addition to and not in lieu of any other warranties provided elsewhere in the MSA. All warranties provided for in this MSA shall be cumulative, shall be deemed consistent and not in conflict, are intended to be given full force and effect and to be interpreted expansively to give the broadest warranty protection to Authorized Purchaser.

10. Indemnification.

10.1. General Indemnity. Contractor shall defend (subject to the provision of ORS Chapter 180), save, hold harmless, and indemnify the State of Oregon, Authorized Purchaser, and their agencies, 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 (“Claims”) resulting from, arising out of, or relating to the negligent acts or intentional misconduct of Contractor or its officers, employees, subcontractors, or agents under this MSA or any SO.

10.2. IP Indemnity. In addition and without limiting the generality of the above, Contractor shall defend (subject to the provisions of ORS chapter 180) at Contractor's sole expense, save, hold harmless, and indemnify the State, Authorized Purchaser, and all of their officers, employees and agents from and against any and all costs, damages, statutory penalties, attorneys' fees, and any and all costs resulting from, relating to, or arising out of a claim ("Infringement Claim") that any aspect of the Products and/or Services provided under this MSA or any SO infringes a patent, utility model, industrial design, copyright, mask work, trademark, trade dress, or any other legally cognizable proprietary right of any third party. DAS or Authorized Purchaser shall give Contractor notice of any Infringement Claim promptly after becoming aware of such Infringement Claim. If any Product or Service is, in Contractor's opinion likely to become the subject of an Infringement Claim, then Contractor may, at its option and expense, procure for Authorized Purchaser the right to continue using the allegedly infringing materials or replace or modify the materials so that they become non-infringing; provided that the replacement or modified version meets Authorized Purchaser's original specifications to the satisfaction of Authorized Purchaser. If the foregoing remedies are not available, then State or Authorized Purchaser may return the allegedly infringing Product and terminate the Service without early termination charge and Contractor shall refund Authorized Purchaser's payment in full for the allegedly infringing Product or Service.

10.3. Defense. The State and Authorized Purchaser shall have the right to have its own counsel and participate in the defense of any Claim or Infringement Claim. Contractor may not settle any Claim or Infringement Claim on the State of Oregon's or Authorized Purchaser’s behalf without prior written consent, which shall not unreasonably withhold. If the State or Authorized Purchaser reasonably concludes that its interests are not being properly protected, it may enter any action. Further, if principles of governmental or public law are involved, the State or Authorized Purchaser may participate in the defense of any such action. Any participation of State or Authorized Purchaser pursuant to this subsection shall not relieve Contractor of its obligation to save, hold harmless and indemnify the State or Authorized Purchaser under this section, provided that the State or Authorized Purchaser may not settle any Claim or Infringement Claim or action without Contractor's prior written consent, which Contractor shall not unreasonably withhold.

11. Assignment of Anti-Trust Rights. CONTRACTOR IRREVOCABLY ASSIGNS AND SHALL REQUIRE EACH OF ITS ORIGINAL EQUIPMENT MANUFACTURES, SUPPLIERS OR SUBCONTRACTORS TO ASSIGN TO STATE OR AUTHORIZED PURCHASER ANY CLAIM FOR RELIEF OR CAUSE OF ACTION WHICH CONTRACTOR NOW HAS OR WHICH MAY ACCRUE TO CONTRACTOR IN THE FUTURE BY REASON OF ANY VIOLATION OF 15 U.S.C. § 1-15 OR ORS 646.725 OR ORS 646.730, IN CONNECTION WITH ANY PRODUCTS OR SERVICES PROVIDED TO CONTRACTOR FOR THE PURPOSE OF CARRYING OUT CONTRACTOR’S OBLIGATIONS UNDER THIS MSA OR ANY SO, INCLUDING, AT STATE’S OR AUTHORIZED PURCHASER’S OPTION, THE RIGHT TO CONTROL ANY SUCH LITIGATION ON SUCH CLAIM FOR RELIEF OR CAUSE OF ACTION.

12. Limitation of Liability.

12.1. Contractor Liability. Contractor's liability for Claims is limited as follows:

12.1.1. Contract Claims. Contractor’s liability for Claims related to breach of contract, including any representation, warranty or covenant in this MSA is limited to two times the value of the particular SO.

12.1.2. Infringement Claims. Contractor’s liability for Claims that the Product or Services infringe or violate any patent, copyright, trade secret, trademark, trade dress, mask work, utility design, or other proprietary right (collectively, “Intellectual Property Rights”) of any third party, is limited to $2,000,000.

12.1.3. Tort Claims. Contractor’s liability for Claims related to torts, including personal injury or death, damage to real property and damage to tangible or intangible personal property, including the State’s or employee’s property, is limited to $2,000,000.

12.1.4. Confidentiality or Data Breach or Data Loss. Contractor’s liability for Claims related to breach of confidentiality or non-disclosure, breach of security or privacy provisions, or loss of data is limited to $2,000,000.

12.1.5. Service Credits. Contractor’s liability for Claims covered by service credits or liquidated damages are limited to the agreed upon service credit or liquidated damage amount.

12.2. State or Authorized Purchaser Liability. The State’s, DAS’ or Authorized Purchaser’s liabilities, if any under this MSA or any SO, are subject to the provisions of Article XI, Section 7 of the Oregon Constitution and the Oregon Tort Claims Act (ORS 30.260 through 30.300).

12.3. Consequential Damages. NO PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOST SAVINGS, OR PUNITIVE, INDIRECT, EXEMPLARY, CONSEQUENTIAL, OR INCIDENTAL DAMAGES.

12.4. Damages to State Property and Employees. Contractor shall be liable for all claims, suits, actions, losses, damages, liabilities, costs and expenses for bodily injury, including death, damage to real property and damage to tangible 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 acts or omissions of Contractor or its officers, employees, subcontractors, or agents under this Contract for which Contractor is legally liable.

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

13. Insurance Requirements. Contractor shall obtain and maintain all insurance as set forth on Exhibit C.

14. Events of Breach.

14.1. Breach by Contractor. Contractor breaches this MSA or any SO if:

(i) Contractor institutes or has instituted against it insolvency, receivership or bankruptcy proceedings, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis;

(ii) Contractor no longer holds a license or certificate that is required for Contractor to perform its obligations under this MSA or any SO and Contractor has not obtained the license or certificate within ten (10) calendar days after DAS or Authorized Purchaser delivers notice of breach to Contractor or a longer period as DAS or Authorized Purchaser may specify in the notice; or

(iii) Contractor commits any material breach of any covenant, warranty, obligation or certification under this MSA, SO, fails to perform its obligations under this MSA, SO within the time specified or any extension of that time, and Contractor fails to cure the breach within thirty (30) calendar days after DAS or Authorized Purchaser delivers notice of breach to Contractor or a longer period as DAS or Authorized Purchaser may specify in the notice.

14.2. Breach by Authorized Purchaser. Authorized Purchaser breaches a SO if:

(i) Authorized Purchaser fails to pay Contractor any amount pursuant to the terms of a SO and fails to cure the failure to pay within thirty (30) calendar days after Contractor delivers notice of breach to Authorized Purchaser or a longer period as Contractor may specify in the notice; or

(ii) Authorized Purchaser commits any material breach of any covenant,…