Attachment R1 Sample Master Agreement_(12-06-23).pdf

Creative Services Page 1 of 27 Master Agreement #_____

RFP #20075 - ATTACHMENT R1

SAMPLE MASTER AGREEMENT #____

FOR CREATIVE SERVICES

This Master Agreement _____ (“Agreement”) is between the State of Oregon, acting by and through its Oregon State Lottery Commission (“Lottery”), and _______________, (“Contractor”) for Creative Services.

The parties hereby agree as follows:

1. Purpose of Agreement.

The purpose of the Agreement is to establish the terms and conditions applicable to, and the general form of work order to be used for, work order contracts entered into between Lottery and Contractor (each, a “Work Order Contract”) under which Contractor agrees to provide Creative Services. This Agreement, by itself, is not a binding contract for Services. Rather, if Lottery requires Contractor’s Services in the future, Lottery and Contractor may enter into binding and enforceable Work Order Contracts for Creative Services (“Services”) by execution of a work order contract substantially in the form attached hereto as Exhibit B, that specifies the particular Creative Services to be provided and makes the terms and conditions set forth in Exhibit A of this Agreement applicable to the Work Order Contract. Each executed Work Order Contract, with the terms and conditions of this Agreement incorporated by reference, creates a separate agreement between Lottery and Contractor, enforceable according to its terms and independent of other Work Order Contracts.

2. Effective Date and Duration.

a. This Agreement is effective on the date this Agreement has been signed by every party hereto, and when required, approved by the Department of Justice (“Effective Date”). Unless terminated or extended, this Agreement expires on ___________ (“Initial Term”). Expiration shall not extinguish or prejudice Lottery’s right to enforce this Agreement with respect to any breach of a Contractor warranty or any default or defect in Contractor performance that has not been cured.

b. This Agreement may be extended for additional periods as agreed to by the parties. The Initial

Term and all extension terms are collectively referred to as the “Term” of this Agreement.

c. The effective date and term of each Work Order Contract shall be set forth in the Work Order

Contract. The expiration or termination of this Agreement shall not affect the term of any Work Order Contract in effect at the time of such expiration or termination.

3. Pricing.

a. Contractor’s hourly rates and other pricing metrics are set forth in Exhibit C and shall remain firm for the Initial Term. If the Agreement is extended beyond the Initial Term, the parties may negotiate adjustments to the rates and other pricing metrics set forth in Exhibit C. Contractor may submit a request for a price adjustment at least 60 calendar days prior to expiration of the then-current Term.

Creative Services Page 2 of 27

b. Lottery may require Contractor to present acceptable documentation verifying the increase.

Lottery will determine what constitutes acceptable documentation. Parties shall mutually agree to any price adjustment by written amendment to this Agreement.

c. If Lottery rejects Contractor’s proposed price increase, Contractor may either elect to agree to extend the term with no price increase or allow the Agreement to expire.

d. If Lottery proposes a lesser amount of increase, Contractor may either elect to agree to the term extension with Lottery’s proposed price increase or allow the Agreement to expire.

4. Definitions.

In addition to the terms defined in this Agreement, all other capitalized terms used but not defined in this Agreement are defined in OAR 177-038-0000.

5. Agreement Documents.

This Agreement consists of the following documents which shall be interpreted in the following order of precedence: (1) the Agreement less exhibits; (2) Exhibit A, Work Order Contract Terms and Conditions, (3) Exhibit C, Work Order Contract Pricing (4) Exhibit D, Insurance, and (5) Exhibit B, Work Order Contract Form.

6. Work Order Contracts.

a. This is a non-exclusive Agreement. This Agreement is not a guarantee of future work nor does this Agreement constitute a promise that Lottery will enter into one or more Work Order Contracts with Contractor. Notwithstanding this Agreement, Lottery reserves the right to contract for Services through any selection procedure authorized by law or to perform the Services itself.

b. Prior to execution of a Work Order Contract, Contractor and Lottery will negotiate the statement of work for the Work Order Contract, including but not limited to the cost of the Services subject to the Work Order Contract. Contractor shall not propose pricing under any Work Order Contract based on rates or other pricing metrics that exceed those set forth in Exhibit C of this Agreement.

c. Lottery will pay Contractor for Services performed in accordance with each applicable Work

Order Contract.

7. General Description of Services. Contractor shall deliver Creative Services to Lottery; which may include the following Services, tasks, and deliverables:

a. STRATEGIC PLANNING

Contractor shall provide strategic planning related Services to include without limitation:

(1) Work proactively with Lottery on an ongoing basis to help identify strategic direction in support of and in alignment with Lottery’s go-to-market plans. This may include general strategic input, directed brainstorming and ideation, secondary research compilation, interaction with Lottery beneficiary agencies, communication plan recommendations and other related marketing activities.

(2) Make recommendations to Lottery on how to communicate to diverse audiences

Creative Services Page 3 of 27 effectively and responsibly, with the inclusion of messages that are culturally competent and contextually relevant to both broad and targeted groups throughout the state of Oregon.

(3) Assign Key Persons to perform strategic planning Services under Lottery’s account.

b. ACCOUNT MANAGEMENT Contractor shall provide account management services to facilitate the day-to-day management, workflow, and contract administration of Services provided under the Master Agreement and each Work Order Contract. Contractor shall provide dedicated staff for this purpose.

c. CREATIVE DEVELOPMENT Contractor shall provide creative development related Services to include without limitation:

(1) Develop creative concepts for any combination of Lottery’s multimedia advertising and communications (“Concepts”). Concepts may apply to any traditional or non-traditional methods of advertising across both mass and segmented audiences.

(2) Interact with other Lottery contractors to extend Concepts across a multitude of paid or Lottery-owned media channels.

(3) Develop creative solutions based upon a Lottery-supplied creative brief outlining the messaging, target audience, tone, and executional considerations (“Creative Solutions”).

Creative Solutions are finalized through an iterative process to ensure such solutions are in line with Lottery’s creative direction.

(4) Prepare and submit production timelines for all deliverables up to the final delivery of the

Lottery selected and approved projects and campaigns. Deliver assets in a variety of specified formats as agreed upon with Lottery.

(5) Provide demonstrated experience in inclusive multicultural communications and commit to learning and adhering to Lottery’s best practices around Responsible Gaming and Problem Gambling.

d. PRODUCTION PLANNING AND EXECUTION

Contractor shall provide production planning and execution related Services to include without limitation:

(1) Produce and deliver any combination of Lottery’s approved production deliverables related to communications and advertising. Production planning and execution Services may include video, digital content, audio, print, out-of-home, merchandising collateral, promotional items, and any other communications outreach effort that Lottery selects to support its marketing and advertising campaigns and projects.

(2) Prepare and submit a cost estimate and production timeline for all production deliverables up to the final delivery of the selected and Lottery-approved electronic master files to Lottery.

(3) Negotiate, arrange, and manage aspects of and contracting for directors, producers, production services, props, talent and associated fees, licensing rights and associated fees, photography, illustration, fonts, and other services required to produce and deliver Lottery-approved assets for campaigns or advertisement(s).

Creative Services Page 4 of 27

e. MEETINGS AND PEFORMANCE REVIEW

Contractor shall participate in a kick-off meeting following the issuance of a Work Order Contract and Contractor’s receipt of a Lottery-provided creative brief for discussion, dialog, feedback, and approvals related to the work to be performed under the Work Order Contract and the corresponding creative brief. Contractor shall participate in related follow up meetings, if requested by Lottery.

f. MASTER STORAGE

For each advertisement finalized and Accepted by Lottery under a Work Order Contract, Contractor shall:

(1) Deliver to Lottery: (i) one copy in a secure Lottery-approved digital format, via regular mail,

(ii) one copy, via email, in a Lottery-approved digital file format, and (iii) other produced materials in tangible or digital form as reasonably requested by Lottery in writing.

(2) Store a digital master for two years such that each master is available to Lottery upon request during such two-year period following the asset delivery date (“Two Year Storage Period”).

(3) All masters must be of first-class technical quality, ready in all respects for replication of first-class sub-masters and broadcast-quality electronic masters in accordance with broadcast industry standards and practices.

(4) Contractor may subcontract the storage of the masters to a Lottery approved post-production company as further outlined under the Work Order Contract.

(5) Upon conclusion of the Two-Year Storage Period for each master, Contractor shall:

a. Deliver the master to Lottery unless requested otherwise by Lottery in writing.

b. Provide written notification to Lottery and obtain Lottery’s written approval to discontinue storage and securely destroy the applicable master.

c. If applicable, upon receipt of Lottery’s written approval, notify the post-production company with written instruction to discontinue storage and securely destroy the applicable master.

d. Provide Lottery with written confirmation that secured destruction of the master has been completed.

(6) In the event an advertisement includes talent or music and the broadcasting or other use of the advertisement exceeds the permitted time of use of the talent or music, or in the event masters are brought out of storage for the purpose of re-running such advertisement and such advertisement includes talent or music, Contractor shall be responsible for (i) advising Lottery in writing of any need to renew or extend any agreement or license permitting Lottery to continue to use or re-run the applicable advertisement with such talent or music included and (ii) obtain the necessary renewals or extensions required in order to continue to use such talent or music in the applicable advertisements.

g. ADDITIONAL CREATIVE SERVICES

Contractor shall provide additional services to include without limitation: maintenance and ongoing support for Lottery-related sites, and additional support to Lottery’s creative marketing

Creative Services Page 5 of 27 goals, objectives, and initiatives.

h. MONTHLY RETAINER SERVICE

Contractor shall provide ongoing monthly services to include without limitation: (1) the strategic planning services described in Section 7.a, (2) the account management services described in Section 7.b, and (3) the master storage services described in Section 7.f.

8. Insurance.

Contractor shall provide insurance coverage throughout the term of this Agreement and all Work

Order Contracts. The coverage shall be in the types and amounts specified in Exhibit D, Insurance, unless specified otherwise in a Work Order Contract, in a form and with a surety satisfactory to Lottery.

9. Termination.

a. Parties’ Right to Terminate for Mutual Consent This Agreement may be terminated at any time by mutual written consent of the parties.

b. Lottery’s Right to Terminate for Convenience

Lottery may, at its sole discretion, terminate this Agreement, in whole or in part, upon 30 calendar days written notice to Contractor. Lottery’s termination of the Agreement under this Section 9.b. shall not cause the termination of any Work Order Contract unless otherwise set forth in Lottery’s notice provided under this Section.

IN WITNESS WHEREOF, this Agreement has been executed, as of the date last provided below, by a duly authorized representative of ___________, and the Oregon State Lottery Commission.

FOR CONTRACTOR

By: ____________________________________________ Authorized Signatory

Title:___________________________________________ Date: ________________

FOR LOTTERY

The State of Oregon acting by and through its Oregon State Lottery Commission

By: ____________________________________________

Title:___________________________________________ Date: ________________

Creative Services Page 6 of 27

EXHIBIT A

WORK ORDER CONTRACT TERMS AND CONDITIONS

1. Non-Exclusive Contract

Contractor acknowledges its understanding that by executing this Work Order Contract, Lottery is not granting to Contractor the exclusive right to perform the Services, or any other services, for Lottery. Lottery reserves the right to (i) contract with other entities to provide Lottery with services that are the same or similar to those provided to Contractor under this Work Order Contract; and (ii) perform any or all of the services itself.

2. Reserved

3. Invoicing and Payment

a. Submission

Contractor shall submit invoices according to the payment schedule as set forth in this Work

Order Contract. Invoices shall be submitted to: Oregon State Lottery, Attn.: Accounts Payable Dept., PO Box 12649, Salem, OR, 97309; or to Lottery’s electronic mail to:

lottery.ap@lottery.oregon.gov

b. Content of Invoices

i. Include the Lottery Agreement No. _____ and the applicable WOC Number;

ii. Describe all Services performed with particularity and by whom it was performed;

iii. Identify all Deliverables Accepted by Lottery and the date on which Acceptance was made;

iv. Itemize, provide copies of receipts, and explain all expenses for which Contractor claims reimbursement, and for which Lottery has pre-approved in writing for the applicable WOC (such approval may be made via email);

v. Include the total amount invoiced to date under the applicable WOC prior to the current invoice, if there is more than one invoice for the applicable WOC.

c. Payment Terms

Lottery’s standard payment terms are NET 30 days from receipt of an accurate invoice, unless otherwise specified in the Work Order Contract

d. Late Charges

Contractor may assess late payment charges to the extent permitted by ORS 293.462.

e. Conditions Precedent to Payment.

As a condition precedent to Lottery’s obligation to pay Contractor, Contractor shall, upon execution of this Work Order Contract, deliver to Lottery the applicable Internal Revenue Service form, whether a W-9 form, W-8 form, 8233 form or other similar form, based upon Contractor’s status as a United States person, resident alien or nonresident alien, as those terms are defined in 26 USC §7701. These forms are currently available at http://www.irs.gov. Lottery may withhold payments to Contractor pending Lottery's receipt from Contractor of the applicable, completed and signed forms required by this Section 3.d.

mailto:lottery.ap@lottery.oregon.gov http://www.irs.gov/

Creative Services Page 7 of 27

f. Invoice Review / Dispute Process

Lottery will review each invoice within ten (10) Business Days of receipt, and will either approve payment of the amount invoiced or notify Contractor of any errors or disputed charges.

If an error or dispute arises concerning charge(s) on an invoice, Lottery will notify Contractor of the disputed charge. Upon notification of dispute, Contractor shall submit to Lottery documentation to support the amount charged. Lottery will have seven (7) Business Days to consider the validity of the supporting documentation, however, Lottery’s failure to respond to Contractor by the end of the seven (7) Business Day period shall not be deemed Lottery’s acceptance of the documentation and shall not obligate Lottery to pay the disputed amount in full.

Lottery, in its sole and absolute discretion, will determine if the supporting documentation provides sufficient justification for the charges set forth in the disputed invoice. If Lottery determines that the supporting documentation is sufficient, Lottery will notify Contractor and pay Contractor the amount claimed due in the invoice. If Lottery determines the supporting documentation supports payment in an amount less than originally invoiced, Lottery will notify Contractor of the amount Lottery believes is due under the invoice. Contractor may resubmit an invoice for the lesser undisputed amount following Lottery’s review, and Lottery will pay the invoice as set forth in Section 3(b).

4. Key Person(s)

Contractor acknowledges and agrees that a significant reason Lottery selected Contractor and is entering into this Work Order Contract is because of the special qualifications of each of the key personnel identified in the Work Order Contract (each, a “Key Person”). Under this Work Order Contract, Lottery is engaging the expertise, experience, judgment, and personal attention of such Key Persons. Neither Contractor nor any of the Key Persons shall delegate performance of the management powers and responsibilities each such Key Person is required to provide under this Work Order Contract to any other employee or agent of Contractor unless Lottery provides prior written consent to such delegation. Contractor shall not reassign or transfer a Key Person to other duties or positions such that the Key Person is no longer available to provide Lottery with such Key Person’s services unless Lottery provides prior written consent to such reassignment or transfer or such transfer is required based on the termination of employment, illness, death, disability or other similar cause.

In the event Contractor requests Lottery to consent to a delegation, reassignment, transfer or other replacement of a Key Person, Lottery may meet with the Key Person and review the qualifications of the proposed substitute personnel before providing its consent or rejecting such replacement. Any such replacement shall have substantially equivalent or better qualifications than the Key Person being replaced. Contractor shall not charge Lottery and Lottery will not pay for any proposed replacement personnel while such replacement acquires the necessary skills and project knowledge to proceed with the Services required hereunder. Any replacement personnel approved by Lottery shall thereafter be deemed a Key Person for purposes of this Work Order Contract and this Work Order Contract shall be deemed amended to include such Key Person.

5. Security Investigation(s); Changes to Approved Persons

This Work Order Contract has been classified by Lottery as a Sensitive Procurement as defined in OAR 177-037-000(4). Therefore, Contractor shall complete, and shall cause its Control Persons, Creative Services Page 8 of 27 sub-contractors and employees performing Services to complete, a security background investigation performed by Lottery's Security Section and continually report, during the term of this Work Order Contract, to Lottery’s Security Section, pursuant to OAR Chapter 177, Division 037. This investigation may include without limitation the completion of forms that will be provided by Lottery and a finger-print background investigation. Additionally, Contractor shall comply, and shall cause the aforementioned individuals who have successfully completed the initial security background investigation performed by Lottery's Security Section to comply, with all continuing disclosure obligations set forth in OAR Chapter 177, Division 037.

Within ten (10) Business Days following a change in duties, reassignment or other disengagement from Services, Contractor shall notify Lottery of such changes, reassignments and other disengagements for Key Persons, sub-contractors and employees who have previously completed security background investigation requirements and have been approved by Lottery to perform Services. Changes, reassignments and other disengagements include, but are not limited to: removal of an approved individual from performing Services, termination of employment with Contractor, and proposed assignment to perform Services of Contractor or sub-Contractor personnel who have not yet successfully completed an initial security background investigation performed by Lottery's Security Section and been approved by Lottery to perform Services.

6. Confidentiality / Non-Disclosure

a. Confidential Information

Contractor acknowledges that Contractor and Contractor’s employees or agents may, in the course of performing Contractor’s responsibilities under this Work Order Contract, be exposed to or acquire information that is confidential to Lottery. Any and all information of any form obtained by Contractor or Contractor’s employees or agents in the performance of this Work Order Contract shall be deemed to be confidential information of Lottery (“Confidential Information”). Any reports or other documents or items which result from the use of the Confidential Information by Contractor shall be treated with respect to confidentiality in the same manner as the Confidential Information. Confidential Information shall be deemed not to include information that (a) is or becomes (other than by disclosure by Contractor) publicly known or is contained in a publicly available document; (b) is furnished by Lottery to others without restrictions similar to those imposed by this Contract; (c) is rightfully in Contractor’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Work Order Contract; or (d) is independently developed by employees or agents of Contractor who can be shown to have had no access to the Confidential Information.

b. Non-Disclosure

Contractor agrees to hold Confidential Information in strict confidence, using at least the same degree of care that Contractor uses in maintaining the confidentiality of its own confidential information, and not to 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 the provision of services to Lottery hereunder, and to advise each of its employees and agents of their obligations to keep Confidential Information confidential.

c. Unauthorized Use

Contractor shall use its best efforts to assist Lottery in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limitation of the foregoing, Contractor shall advise Lottery immediately in the event Contractor learns or has

Creative Services Page 9 of 27 reason to believe that any person who has had access to Confidential Information discloses or intends to disclose Confidential Information in violation of the terms of this Work Order Contract and Contractor will at its expense cooperate with Lottery in seeking injunctive or other equitable relief in the name of Lottery or Contractor against any such person.

d. Return of Confidential Information

Contractor agrees that, except as directed by Lottery, Contractor will not at any time during or after the term of this Work Order Contract disclose, directly or indirectly, any Confidential Information to any person, and that upon termination of this Work Order Contract or at Lottery’s request, Contractor will turn over to Lottery all documents, papers, and other matter in Contractor's possession which embody Confidential Information.

e. Injunctive Relief

Contractor acknowledges that breach of this Section 6, including disclosure of any Confidential

Information, or disclosure of other information that, at law or in good conscience or equity, ought to remain confidential, will give rise to irreparable injury to Lottery inadequately compensable in damages. Accordingly, Lottery 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 Lottery and are reasonable in scope and content.

f. Ensuring Confidentiality

Contractor agrees to comply with all reasonable requests by Lottery to ensure the confidentiality and nondisclosure of the Confidential Information, including without limitation, obtaining nondisclosure agreements, at the request of and in a form approved by Lottery, from each of Contractor’s employees and agents who are performing Services, and providing copies of such agreements to Lottery.

7. Independent Contractor; Responsibility for Taxes and Withholding.

a. Contractor shall perform all required Services as an independent contractor. Although Lottery reserves the right (i) to determine the delivery schedule for the Services to be performed and (ii) to evaluate the quality of the completed performance, Lottery 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.

b. If Contractor is currently performing services for the State of Oregon or the federal government, Contractor by signature to this Work Order Contract declares and certifies that: Contractor’s Services to be performed under this Work Order Contract creates no potential or actual conflict of interest as defined by ORS Chapter 244 and no rules or regulations of Contractor’s employing agency (state or federal) would prohibit Contractor’s Services under this Work Order Contract.

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

Contractor is not an “officer,” “employee,” or “agent” of Lottery, as those terms are used in ORS 30.265(1) and (4). Contractor shall have no right or authority to incur or create any obligation for or legally bind Lottery in any way.

c. Contractor shall be responsible for all federal or state taxes applicable to compensation or payments to Contractor under this Work Order Contract and, unless Contractor is subject to backup withholding, Lottery will not withhold from such compensation or payments any

Creative Services Page 10 of 27 amount(s) to cover Contractor’s federal or state tax obligations. Contractor is not eligible for any Social Security, unemployment insurance or workers’ compensation benefits from compensation or payments to Contractor under this Work Order Contract, except as a self-employed individual.

8. Subcontracts and Assignment; Successors and Assigns.

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

b. The provisions of this Work Order Contract are binding upon and shall inure to the benefit of the parties hereto, and their respective successors and permitted assigns, if any.

9. Intended Beneficiaries

Lottery and Contractor are the only parties to this Work Order Contract and are the only parties entitled to enforce its terms. Nothing in this Work Order Contract gives, is intended to give, or shall be construed to give or provide any benefit or right, whether directly, indirectly or otherwise, to third persons unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Work Order Contract.

10. Lottery’s Funding Limitation

Article XV, section 4(4)(d) of the Oregon Constitution and ORS 461.500 provide that Lottery is a self-supporting, revenue-raising agency and that no appropriations, loans, or other transfers of state funds shall be made to it. Accordingly, all amounts payable by Lottery under this Work Order Contract are the sole responsibility of Lottery, and not the State of Oregon, and are payable only from: (1) Revenues received by Lottery from lottery games; and (2) other miscellaneous revenues generated by Lottery. Lottery certifies that, as of the effective date of this Work Order Contract, sufficient funds are available and authorized for expenditure to finance the costs of this Work Order Contract within Lottery’s current financial plan.

Notwithstanding this certification, Lottery’s payments under this Work Order Contract, together with all of Lottery’s other obligations incurred under ORS 461.510(4), are limited by Article XV, section 4(4)(d) of the Oregon Constitution and ORS 461.500(2). If Lottery’s authority or ability to conduct lottery games is removed or diminished, or if Lottery reasonably determines that expending the amounts payable by Lottery under this Work Order Contract would be in violation of the 16% (sixteen percent) limitation under ORS 461.500(2), Lottery may terminate this Work

11. Representations and Warranties.

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

i. Contractor has the power and authority to enter into and perform this Work Order

Contract.

ii. This Work Order Contract, when executed and delivered, will be a valid and binding

Creative Services Page 11 of 27 obligation of Contractor enforceable according to its terms.

iii. Contractor will, at all times during the term of this Work Order Contract, be qualified to do business in the State of Oregon, professionally competent and duly licensed to perform the Services.

iv. 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.

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

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

b. Contractor’s Performance Warranties.

Contractor represents and warrants to Lottery that:

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

ii. Through the expiration of the term of this Work Order Contract, all deliverables and Work Product delivered by Contractor to Lottery will materially conform to requirements and acceptance criteria set forth in this Work order Contract, including the Statement of Work and any documentation provided by Contractor, and be free from error or defect that materially impairs their use, and be free from material defects in materials, workmanship, or design.

iii. Contractor shall comply with Lottery’s policies and procedures regarding information security.

iv. Except as otherwise provided in this Work Order Contract, Contractor shall transfer all deliverables and Work Product to Lottery 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.

v. Except as otherwise set forth in this Work Order Contract, any subcontractors performing work for Contractor under this Contract have assigned all of their rights in the deliverables and Work Product to Contractor or Lottery and no third party has any right, title or interest in any deliverables or Work Product supplied to Lottery under this Work Order Contract.

vi. 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

Creative Services Page 12 of 27 requirements of the Oregon Consumer Information Protection Act (ORS 646A.600 et.

seq.) 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.

vii. The Services, Work Product and deliverables are free of what are commonly defined as viruses, backdoors, worms, spyware, malware and other malicious code that hampers performance of the Services, unlawfully collects any information on users, or prevents the Solution from performing as required under the terms and conditions of this Work

c. Warranties Cumulative

THE WARRANTIES SET FORTH IN THIS CONTRACT ARE CUMULATIVE AND DO NOT

LIMIT LOTTERY’S REMEDIES UNDER THIS CONTRACT OR AT LAW. The warranties stated above do not apply to the extent that there has been misuse of the relevant Deliverable, other than that authorized by Contractor in writing, accident, modification, or failure or damage caused by a product or entity for which Contractor is not responsible.

12. Ownership of Work Product

a. Definitions

As used in this Section 12, and elsewhere in this Work Order Contract, the following terms have the meanings set forth below:

i. “Intellectual Property” means any patent, copyright, trade secret, trademark, trade dress, mask work, utility design, or other proprietary right.

ii. “Contractor Intellectual Property” means any Intellectual Property owned by Contractor and developed independently from the Services.

iii. “Third Party Intellectual Property” means any Intellectual Property, owned by parties other than Lottery or Contractor.

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

b. Original Works

All Work Product originally created by Contractor pursuant to the Services in whatever form, shall be the exclusive property of Lottery. Lottery and Contractor agree that such original works of authorship are “work made for hire” of which Lottery is the author within the meaning of the United States Copyright Act. If for any reason the original Work Product created pursuant to the Services is not “work made for hire,” Contractor hereby irrevocably assigns to Lottery any and all of its rights, title, and interest in all original Work Product created pursuant to the Services, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Upon Lottery’s reasonable request, Contractor shall execute such further documents and instruments necessary to fully vest such rights in Lottery. Contractor agrees that Contractor shall not, and is estopped to, assert against Lottery and the State of Oregon, or any of their assignees, any and all rights relating to original Work Product created pursuant to the Services, including without limitation, any and all rights arising under 17 USC §106A or any other rights of identification of authorship or

Creative Services Page 13 of 27 rights of approval, restriction or limitation on use or subsequent modifications.

In the event that Work Product created by Contractor under this Work Order Contract is a derivative work based on Third Party Intellectual Property, or is a compilation that includes Third Party Intellectual Property, Contractor shall secure on Lottery’s behalf, and in the name of Lottery, an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the pre-existing elements of the Third Party Intellectual Property employed in the Work Product, and to authorize others to do the same on Lottery’s behalf.

c. Contractor Intellectual Property

In the event that Work Product is Contractor Intellectual Property, Contractor hereby grants to

Lottery an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Contractor Intellectual Property, and to authorize others to do the same on Lottery’s behalf.

d. Third Party Intellectual Property

In the event that Work Product created by Contractor under this Work Order Contract is a derivative work based on Third Party Intellectual Property, or is a compilation that includes Third Party Intellectual Property, Contractor shall secure on Lottery’s behalf, and in the name of Lottery, an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display Third Party Intellectual Property, and to authorize others to do the same on Lottery’s behalf.

e. Lottery Intellectual Property

Lottery owns all Lottery Intellectual Property, including Lottery data, provided to or collected by Contractor pursuant to this Work Order Contract. Lottery grants Contractor a non-exclusive, royalty-free, world-wide license to use, copy, display, distribute, transmit and prepare derivative works of Lottery Intellectual Property, including Lottery data and Work Product only to fulfill the purposes of this Work Order Contract. Lottery’s license to Contractor is limited by the term of the Work Order Contract and the confidentiality obligations of the Agreement and this Work Order Contract.

f. Clearance of Distribution Rights

Contractor shall ensure that upon delivery and throughout the term specified in this Work Order

Contract, each advertisement delivered by Contractor and selected by Lottery for public display or distribution is fully cleared for reproduction, distribution, broadcast exhibition, or public performance across all media for which Lottery notifies Contractor it will distribute, broadcast or perform the advertisement. Contractor shall obtain in writing all releases, whether from talent, publishers, or otherwise, necessary to distribute, broadcast or perform the advertisement across such media and throughout any territory designated by Lottery in this Work Order Contract, without any limitation or restriction whatsoever, and without any additional payments of any sort required to be made by Lottery.

g. Limitations on Use of Intellectual Property

Lottery and Contractor each acknowledge that:

i. The Intellectual Property of the other party and of any Third Parties and all the rights

Creative Services Page 14 of 27 therein, including Lottery’s rights in the Work Product, have great value; and

ii. Each party is the sole and exclusive owner of its Intellectual Property; and no party shall acquire any rights in the other Party’s Intellectual Property or any Third Party Intellectual Property, other than as expressly set forth in this Work Order Contract; and

iii. No party shall directly or indirectly during the term of the Agreement or this Work Order

Contract or thereafter contest the validity of the other party’s rights in its Intellectual Property or apply any registration of any copyright, patent or trademark or other designation, or take any action which would adversely affect the Intellectual Property owner’s use of, or right in and to its Intellectual Property, or aid or abet anyone else in doing so; and

iv. No party will use or authorize the use of any trademark, trade name or other designation identical with or confusingly similar to the Intellectual Property, or manufacture, distribute, offer for sale, advertise or promote any article, using in connection therewith any words or symbols or combinations thereof which are identical with or confusingly similar to any element of any other party’s Intellectual Property, whether or not such element has been protected by the patent, copyright, or trademark laws; and

v. Each party shall notify the other if it learns of any unauthorized use; and

vi. Subject to the provisions of this Work Order Contract, each party shall reasonably cooperate with the other party in the prosecution and defense of the Party’s Intellectual Property, provided, however, that nothing in the foregoing obligates Lottery to become a party to any associated process or litigation.

h. Contractor’s Limited License Rights. Contractor shall not use Work Product without first obtaining Lottery’s prior written authorization, the scope of which will be identified in the applicable written authorization. If authorized in writing and in advance by Lottery, Contractor may use representative examples of Work Product in Contractor’s artistic portfolio. Lottery reserves the right to withdraw any such authorization, for any reason, with reasonable notice to Contractor.

13. Talent and Music Usage and Renewals.

In the event that the Work Product includes talent or music, Contractor shall prepare and submit to

Lottery, an advance 30-day notification of expiration that includes a written detailed list of the music, person(s) or thing(s) (“Licenses”) for each selected advertisement that may require renewal (“License Renewal”). The License Renewal notification must, at a minimum, include the following information:

a. License Name or Description

b. Campaign Title

c. Length of renewal period(s) and associated cost

d. Any other relevant information Lottery may request to make an informed decision associated with each License Renewal.

Contractor shall deliver the License Renewal notification, by email, to Lottery’s Marketing Operations Program Manager or designee for review.

From the License Renewal list, Lottery shall provide written notification to Contractor of the approved License Renewals, the renewal period, and the associated cost for each advertisement. Lottery’s written approval shall be final notice to Contractor to proceed with the

Creative Services Page 15 of 27

License Renewals.

Contractor shall enter and administer all third-party agreements for such License Renewals, which also are subject to the same terms and conditions specified in the Agreement and this Work Order Contract.

14. Disposition of Property and Materials

Except as expressly agreed to in this Work Order Contract, Contractor shall return all property and materials in which Lottery owns the Intellectual Property to Lottery upon final completion of the Services or as otherwise defined in this Work Order Contract.

15. Acceptance of Deliverables

Contractor shall provide written notice by email, or through delivery of all deliverable to Lottery, upon completion of the deliverables and associated Work Product. In accordance with the Delivery Schedule specified in this Work Order Contract, Lottery shall perform necessary reviews to determine whether the deliverables and associated Work Product meet the specifications and performance standards set forth in this Work Order Contract.

If Lottery’s review determines that the deliverables and associated Work Product meet the specifications and performance standards, then Lottery shall notify Contractor of Lottery’s acceptance.

If Lottery’s review determines that the deliverables and associated Work Product do not meet the specifications or performance standards set forth in the Agreement or this Work Order Contract, then Lottery shall notify Contractor of Lottery’s non-acceptance. Upon receipt of notice of non-acceptance, Contractor shall, within ten (10) Business Days, modify or improve the deliverables and associated Work Product at Contractor’s sole expense to ensure that the deliverables and associated Work Product meet such specifications or performance standards. Lottery shall thereafter review of the revised deliverables and associated Work Product within a ten (10) Business Day period. This process may be an iterative process. Failure of the deliverables and associated Work Product to meet the specifications and performance standards after the second review may constitute a default by Contractor, if Lottery chooses not to allow Contractor any further attempts to correct. Upon such default, Contractor shall refund to Lottery all amounts paid by Lottery for Services related to such deliverables and associated Work Product, if any. Such refund shall be in addition to, and not in lieu of, any other remedies Lottery may have for Contractor’s default.

16. Working with other Lottery Contractors

Contractor acknowledges and agrees that, as part of this Work Order Contract, Contractor may be required to work with other Lottery contractors who may be working on similar projects. Lottery and Contractor acknowledge and agree that this cooperation is essential to the mutual goal of both parties for accurate and valuable use by the Lottery. In the event of a conflict between contractors who must cooperate, Contractors shall notify the Lottery’s Contract Administrator and abide by the Lottery’s direction(s).

17. Indemnity

a. General Indemnity. Contractor shall defend, save, hold harmless, and indemnify the State of Oregon and Lottery and their officers, employees and agents from and against all third party claims, suits, actions, losses, damages, liabilities, statutory penalties, costs and expenses of any

Creative Services Page 16 of 27 nature whatsoever, including personal injury, death, damage to real property and damage to tangible or intangible personal property resulting from, arising out of, or relating to the intentional, reckless or negligent acts or omissions of Contractor or its officers, employees, subcontractors, or agents under this Work Order Contract, including: (i) any claim that Contractor, a subcontractor, or Contractor’s staff or a subcontractor’s staff are employees of the State or Lottery for any reason, and (ii) any claim against the State or Lottery, which, if true, would constitute a breach by Contractor of any of the representations, warranties, or covenants set forth in this Work Order Contract. Without limiting the generality of the foregoing, Contractor will have no obligation to indemnify Lottery 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 Lottery or the State of Oregon, and their officers, employees, or agents.

b. IP Indemnity. In addition to and without limiting the generality of Section 17(i), Contractor expressly agrees to indemnify, defend and hold the State of Oregon and its agencies, subdivisions, officers, directors, employees and agents harmless from any and all third party claims, suits, actions, losses, damages, liabilities, statutory penalties, costs and expenses of any nature whatsoever resulting from, arising out of or relating to any claims that the deliverables, Work Products, or Services or Lottery’s use thereof infringes or violates any 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 one or more Work Products or deliverables infringe a third party’s Intellectual Property Rights, Contractor may upon receipt of Lottery’s prior written consent, which Lottery will not unreasonably withhold: (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 for Lottery the right to continue to use 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 Work Product(s) and Services continues to function in material conformance with the specifications and meet the acceptance criteria set forth in this Work Order Contract. Contractor’s failure or inability to accomplish any of the foregoing will be deemed a material breach of this Work Order Contract, and State may pursue any rights and remedies available to it under this Work Order Contract, including termination. Contractor will not be liable under this section for any claim for infringement based solely on the following:

i. Lottery’s modification of the Work Products. deliverables or Services other than as contemplated by this Work Order Contract, the deliverable or its specifications, or as otherwise authorized by Contractor in writing;

i…