AttC_SampleGroupBenefitsContract_TermsAndConditions_V2~1.pdf

OEBB Contract No. #______ Sample Group Benefits Contract Employee Assistance Program Services Exhibit A, Legal Terms and Conditions

EXHIBIT A

LEGAL TERMS AND CONDITIONS

1. Definitions

1.1. The following definitions apply to this Contract:

Please see Section 2.2 of the main RFP document. The Contract resulting from this RFP will include the definitions in Section 2.2 to the extent the defined terms are used in the future Contract.

1.2. Except for terms specifically defined in this Contract, the definitions in OAR 111-010-0015 and 111-005-0020 govern this Contract.

2. Consideration

2.1. In consideration of the Work being performed under this Contract, participating Entities shall pay

Contractor consistent with subsections 2.2 below. Entities shall not pay for Work performed before this Contract is effective or (except as provided herein) after the Contract terminates.

2.2. Consideration for Work under the Contract for June 5, 2024 through September 30, 2027 is as follows:

[Specific cost information to be added based on Apparent Successful Proposer’s Proposal and subsequent Contract negotiations]

2.3. Unless otherwise required by OEBB, Entities will self-report the number of employees they intend to cover and may extend EAP benefits to all its employees, even those who may not be otherwise be benefits-eligible.

3. Default

3.1. Contractor shall be in default under this Contract if:

3.1.1 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;

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

3.1.3 Contractor commits any material breach or default of any covenant, warranty, obligation or agreement under this Contract, or fails to perform the Work under this Contract within the time specified under this Contract or any extension by OEBB of such time, or fails to pursue the Work as to endanger Contractor’s performance under

Employee Assistance Program Services this Contract in accordance with its terms, and such breach, default or failure is not cured within 10 calendar days after OEBB’s notice, or such longer period as OEBB may specify in such notice; or

3.1.4 Contractor has liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State.

3.2 If Contractor is in default under subsections 3.1.1, 3.1.2, 3.1.3, or 3.1.4, OEBB may pursue any or all of the remedies available to it under this Contract and at law or in equity, including, but not limited to:

3.2.1 Termination of this Contract under Section 4;

3.2.2 Withholding all monies due for Work and Work Products that Contractor has failed to deliver within any scheduled completion dates or has performed inadequately or defectively;

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

3.1.4 Exercise of its right of setoff, and withholding of amounts otherwise due and owing to Contractor, without penalty; or

3.1.5 Undertaking collection by administrative offset, or garnishment if applicable, of all monies due for Services and Deliverables to recover liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State. Offsets or garnishment may be initiated after the Contractor has been given notice if required by law; or

3.1.6 All of them or any combination thereof.

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

4 Termination.

4.1 OEBB’s Right to Terminate at its Discretion. OEBB may terminate this Contract:

4.1.1 Upon 30 calendar days’ prior written notice by Agency to Contractor;

4.1.2 Immediately upon written notice by OEBB to Contractor if OEBB fails to receive funding, appropriations, limitations, allotments or other expenditure authority at levels sufficient to pay for the Services or Work Products; or,

4.1.3 Immediately upon written notice by OEBB to Contractor if federal or state laws, regulations, or guidelines are modified or interpreted in such a way that the OEBB’s

Employee Assistance Program Services purchase of the Services or Work Products under this Contract is prohibited or OEBB is prohibited from paying for such Services or Work Products from the planned funding source.

4.2 OEBB’s Right to Terminate for Cause. In addition to any other rights and remedies OEBB may have under this Contract, OEBB may terminate this Contract immediately upon written notice by OEBB to Contractor, or at such later date as OEBB may establish in such notice, if Contractor is in default under Section 3.

4.3 Contractor’s Right to Terminate for Cause. Contractor may terminate this Contract immediately upon written notice to OEBB, or at such later date as Contractor may establish in such notice, if OEBB is in default under Section 3.

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

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

5 Procedure upon Expiration.

When this Contract expires (or in the event it is earlier terminated) and if requested by OEBB, Contractor shall administer all Benefits Claims through the applicable grace period and run out period. Contract termination will not extinguish or prejudice OEBB’s rights to enforce this Contract with respect to any default by Contractor that has not been cured.

5.1 Upon expiration or termination of this Contract, Contractor shall:

5.1.1 promptly deliver to OEBB all of OEBB’s property (including, but not limited to any Work or Work Products for which OEBB has made payment in whole or in part) that is in the possession or under the control of Contractor in whatever stage of development and form of recordation such OEBB property is expressed or embodied at that time;

5.1.2 cease all activities under this Contract, except for those activities and obligations that survive termination, unless OEBB expressly directs otherwise in such notice of expiration or termination; and

5.1.3 upon OEBB ‘s request, surrender to anyone OEBB designates, all documents, research, or objects or other tangible things needed to complete the Work and the

Employee Assistance Program Services

Work Products.

6. Rates

Contractor guarantees all fees, rates, retention, discounts, and other compensation elements set forth in Section 2 above of this Exhibit A for the Work performed under this Contract through the term date described in the Contract Term section of the Contract. Contractor understands and agrees that payment of amounts under this Contract are contingent on OEBB and participating Entities receiving appropriations, limitations, allotments or other expenditure authority sufficient to allow them, in the exercise of reasonable administrative discretion, to continue to make payments under this

7. Eligibility and Enrollment

Contractor shall provide services without discrimination to all persons employed by a participating Entity, consistent with Exhibit B, Statement of Work. OEBB will furnish Contractor with a list of participating Entities as of the Effective Date of the Contract and when changes occur thereafter.

Contractor may rely upon a person’s statement that the person is employed or was recently employed by an identified agency or is the qualified dependent of such a person. Contractor is responsible for verifying that the agency is a participating Entity.

8. RESERVED.

9. Representations and Warranties (Non-Negotiable).

Contractor represents and warrants to OEBB that:

9.1 Contractor has the power and authority to enter into and perform this Contract.

9.2 This Contract, when executed and delivered, will be a valid and binding obligation of

Contractor enforceable in accordance with its terms.

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

9.4 Contractor shall, at all times during the term of this Contract, be qualified, professionally competent, and duly licensed to perform the Work.

9.5 Contractor prepared its proposal related to this Contract, if any, independently from all other

Proposers, and without collusion, fraud, or other dishonesty.

9.6 The representations and warranties set forth in this section are in addition to, and not in lieu of, any other representations and warranties set forth elsewhere in this Contract.

Employee Assistance Program Services

9.7 Contractor (to the best of Contractor’s knowledge, after due inquiry), for a period of no fewer than six calendar years preceding the Effective Date, faithfully has complied with:

9.7.1 All tax laws of this state, including but not limited to ORS 305.620 and ORS chapters

316, 317, and 318;

9.7.2 Any tax provisions imposed by a political subdivision of this state that applied to

Contractor, to Contractor’s property, operations, receipts, or income, or to Contractor’s performance of or compensation for any work performed by Contractor;

9.7.3 Any tax provisions imposed by a political subdivision of this State that applied to

Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor;

9.7.4 Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions; and

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

10 Ownership of Work Product

10.1 All Work Product created by Contactor pursuant to the Work, including, but not limited to derivative works and compilations, and whether or not such Work Product is considered a work made for hire or an employment to invent, is the exclusive property of OEBB. OEBB and Contractor agree that such Work Product is “work made for hire” of which ORBB is the author within the meaning of the United States Copyright Act. If for any reason the Work Product is not “work made for hire,” Contractor hereby irrevocably assigns to OEBB any and all of its rights, title, and interest in all Work Product, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine.

Upon OEBB’s reasonable request, Contractor shall execute such further documents and instruments necessary to fully vest such rights in OEBB. Contractor forever waives any and all rights relating to Work Product, including without limitation, any and all rights arising under 17 USC §106A or any other rights of identification of authorship or rights of approval, restriction or limitation on use or subsequent modifications.

10.2 Contractor Intellectual Property. In the event that a Deliverables delivered by Contractor under this Contract is or is a derivative work based on Contractor Intellectual Property, or is a compilation that includes Contractor Intellectual Property, Contractor hereby grants to OEBB 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 Contractor Intellectual Property employed in the Deliverables, and to authorize others to do the same on OEBB’s behalf.

10.3 Third Party Works. In the event that a Deliverables delivered by Contractor under this

Contract is or is a derivative work based on Third Party Intellectual Property, or is a compilation that includes Third Party Intellectual Property, Contractor shall secure on the

Employee Assistance Program Services

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

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

10.5 Marks. Neither party grants the other the right to use its trademarks, trade names, service marks or other designations in any promotion or publication without prior written consent.

Each party grants only the licenses and rights specified in this Contract.

10.6 Competing Services. Subject to the provisions of this Section 10, and Contractor’s obligations with respect to Confidential Information, including as defined in Section 10, nothing in this Contract precludes or limits in any way the right of Contractor to: (i) provide services similar to those contemplated in this Contract, or consulting or other services of any kind or nature whatsoever to any individual or entity as Contractor in its sole discretion deems appropriate, or (ii) develop for Contractor or for others, Deliverables or other materials that are competitive with those produced as a result of the Services provided hereunder, irrespective of their similarity to the Deliverables delivered pursuant to this Contract. Each party is free to utilize any concepts, processes, know-how, techniques, improvements or other methods it may develop during the course of performance under this Contract free of any use restriction or payment obligation to the other.

11 Independent Contractor; Responsibility for Taxes and Withholding (Non-Negotiable).

11.1 Contractor shall perform all required Work as an independent contractor. Although OEBB reserves the rights to determine (and modify) the delivery schedule for the Work and to evaluate the quality of the completed performance, OEBB shall not control the means or manner of Contractor’s performance. Contractor is responsible for determining the appropriate means and manner of performing the Work.

11.2 Contractor certifies that: (i) Contractor’s Work to be performed under this Contract creates no potential or actual conflict of interest as defined by ORS 244.020; (ii) no OEBB rules or regulations prohibit Contractor’s Work under this Contract; and (iii) Contractor is not an “officer,” “employee,” or “agent” of OEBB, as those terms are used in ORS 30.265.

11.3 Contractor is responsible for all federal or state taxes applicable to compensation or payments paid to Contractor under this Contract and, unless required by law, OEBB will not withhold from such compensation or payments any amounts to cover Contractor’s federal or state tax obligations. Contractor is not eligible for any social security, unemployment insurance or workers’ compensation benefits from compensation or payments paid to Contractor under this Contract.

Employee Assistance Program Services

12 Records Maintenance; Access (Non-Negotiable).

12.1 Contractor shall maintain all financial records relating to this Contract in accordance with generally accepted accounting principles. In addition, Contractor shall maintain any other records, books, documents, papers, plans, records of shipments and payments and writings of Contractor, whether in paper, electronic or other form, that are pertinent to this Contract (“Records”) in such a manner as to clearly document Contractor's performance. Contractor acknowledges and agrees that OEBB and the Oregon Secretary of State's Office and the federal government and their duly authorized representatives will have access to such financial records and other Records that are pertinent to this Contract, whether in paper, electronic or other form, to perform examinations and audits and make excerpts and transcripts. Contractor shall retain and keep accessible all such financial records and other Records for a minimum of 6 years, or such longer period as may be required by applicable law, following final payment and termination of this Contract, or until the conclusion of any audit, controversy or litigation arising out of or related to this Contract, whichever date is later.

12.2 Contractor shall allow OEBB to audit Benefit Claims and other records relating to this

Contract at any time, with personal identifiers removed. OEBB will have the right to audit any billings or examine any Records maintained pursuant to this Contract both before and after payment. OEBB may recover any excessive or illegal payment from Contractor regardless of OEBB’s payment of any amount under this Contract.

13 Oregon Law (Non-Negotiable)

13.1 Governing Law. This Contract is governed by and construed in accordance with the laws of the State of Oregon without regard to principles of conflicts of law.

13.2 Venue; Consent to Jurisdiction. Any Legal Claim between OEBB (or any other agency or department of the State of Oregon) and Contractor that arises from or relates to this Contract shall be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon; however, if a Legal Claim must be brought in a federal forum, then unless otherwise prohibited by law, it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. Contractor hereby consents to the in personam jurisdiction of said courts, waives any objection to venue in such courts and waives any assertion that such forum is an inconvenient forum.

13.3 Immunities. Nothing in this Contract shall be construed as a waiver by the State of Oregon of any form of defense or immunity, whether it is sovereign immunity, governmental immunity, immunity based on the Eleventh Amendment to the Constitution of the United States, or otherwise.

13.4 Constitutional Restrictions. Nothing in this Contract 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.

Employee Assistance Program Services

14 OEBB Rules

All terms and conditions of the Contract are governed by OEBB’s administrative rules generally, in addition to any other specific OEBB administrative rules cited herein. In the event that the Contract’s terms and conditions conflict with OEBB’s administrative rules, OEBB’s administrative rules shall take precedence over the terms and conditions of the Contract.

15 Foreign Contractor (Non-Negotiable)

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

16 Compliance with Applicable Law (Non-Negotiable)

16.1 Contractor shall comply with all federal, state, and local laws, regulations, and ordinances applicable to the Contract. Without limiting the generality of the foregoing, Contractor expressly shall comply with the following laws, regulations, and executive orders if applicable to the Contract:

16.1.1 Civil rights and employment laws including, but not limited to Titles VI and VII of the Civil Rights Act of 1964, Sections 503 and 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, Executive Order 11246, the Age Discrimination in Employment Act of 1967, and the Age Discrimination Act of 1975;

16.1.2 Laws protecting privacy and security, including, but not limited to the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health (HITECH) Act, 45 CFR Parts 160 and 164, and 42 CFR Part 2;

16.1.3 Laws protecting benefits rights of veterans, including, but not limited to the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 and the Uniformed Services Employment and Reemployment Rights Act of 1994;

16.1.4 Any Oregon state laws corresponding to or implementing the above federal laws;

16.1.5 The Oregon Consumer Identity Theft Protection Act, ORS 646A.600 to 646A.628, including, but not limited to the notice of breach of security provisions; and

16.1.6 All amendments to the foregoing laws, and all regulations and administrative rules established pursuant to the foregoing laws.

16.2 The above referenced laws, regulations, and executive orders are incorporated by reference if applicable to this Contract and required by law to be incorporated. Contractor shall require

Employee Assistance Program Services and ensure that each of its subcontractors complies with these requirements. A reference in this Contract to a provision of law means the provision in effect or as amended from time to time.

16.3 Contractor shall monitor federal and state legislation affecting the delivery of benefits under the EAP program and report those issues to OEBB in a timely fashion prior to the effective date of any mandated EAP program changes.

17 Privacy and Security

17.1 Contractor certifies that it is in full compliance with the regulations protecting the privacy and security of individually identifiable health information under HIPAA and Federal Privacy Rule.

17.2 Contractor shall provide OEBB’s consultant access to PHI if OEBB’s consultant executes a business associate contract with the Contractor.

17.3 HIPAA and the Federal Privacy Rule require that OEBB, as the Plan Sponsor, and Contractor must ensure that Plan Documents restrict uses and disclosures of PHI consistent with the Federal Privacy Rule. This Contract is a Plan Document for the purposes of the Federal Privacy Rule. For this Section 17, capitalized terms not elsewhere defined in this Contract have the meanings ascribed to them in the Federal Privacy Rule.

17.4 Contractor may provide PHI to OEBB consistent with Sections 17.5 through 17.9 in addition to summary information upon OEBB’s request. Summary information provided to OEBB may only be used for the following purposes:

17.4.1 Performing contract administration functions, which OEBB performs for this

Contract;

17.4.2 Modifying, amending, or terminating this Contract.

17.5 OEBB may authorize Contractor to disclose PHI to OEBB for the purposes related to eligibility, enrollment or Benefits Claims resolution.

17.6 Contractor may disclose PHI to OEBB for purposes related to eligibility, enrollment, Benefits Claims resolution or performing contract administration functions.

17.7 Contractor may disclose PHI to OEBB as set forth in this Section 17.

17.8 Contractor shall not disclose PHI to OEBB for the purpose of employment-related actions or other decisions in connection with any other benefit or the EAP program sponsored by

OEBB.

17.9 If OEBB notifies Contractor that OEBB has elected to be a “covered entity” within the meaning of HIPAA, Contractor may disclose to OEBB upon request such PHI as HIPAA permits to be disclosed to a covered entity.

Employee Assistance Program Services

18 Confidential Information (Non-Negotiable).

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

Confidential Information does not include information that (i) is or becomes (other than by disclosure by Contractor or Contractor Staff acquiring such information) publicly known or is contained in a publicly available document except to the extent applicable law still restricts disclosure; (ii) is furnished by Agency to others without restrictions similar to those imposed by this Contract; (iii) is rightfully in Contractor’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Contract; (iv) is obtained from a source other than Agency without the obligation of confidentiality, (v) is disclosed with the written consent of Agency, or; (vi) is independently developed by Contractor or Contractor Staff who can be shown to have had no access to the Confidential Information.

18.2 Non-disclosure. Contractor, its employees, agents, and subcontractors shall hold

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

18.3 Confidentiality Policies. Contractor shall, upon Agency’s request, provide its policies and

Employee Assistance Program Services procedures for safeguarding Confidential Information to Agency for Agency’s review and consent. Such policies must address information conveyed in oral, written, and electronic format and include procedures for how Contractor will respond when a violation or possible violation occurs.

18.4 Injunctive Relief. Contractor acknowledges that breach of this Section 10, including disclosure of any Confidential Information, will cause irreparable injury to Agency that is inadequately compensable in damages. Accordingly, Agency 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 Agency and are reasonable in scope and content.

18.5 Publicity. Contractor agrees that it will not disclose the form, content or existence of this

Contract or any Deliverables in any advertising, press releases or other materials distributed to prospective customers, or otherwise attempt to obtain publicity from its association with Agency or the State of Oregon, whether or not such disclosure, publicity or association implies an endorsement by Agency or the State of Oregon of Contractor’s services, without the prior written consent of Agency.

18.6 Contractor’s Proprietary Information; Oregon Public Records Law. OEBB will use reasonable efforts to maintain the confidentiality of any Proprietary Information received from Contractor and will not use such Proprietary Information except to fulfill its obligations under this Contract and applicable state and federal law. Contractor acknowledges and agrees that any obligation of OEBB to maintain the confidentiality of Contractor’s Proprietary Information is conditioned by and subject to OEBB’s obligations under the Oregon Public Records Laws, including ORS 192.311 to 192.478, which may require disclosure of Proprietary Information as a “public record” unless exempt under ORS 192.345 or ORS 192.355.

18.7 OEBB may disclose Contractor’s Proprietary Information to the extent disclosure is required by the Oregon Public Records Law (ORS 192.311-192.478). If OEBB receives from a third party any request under the Oregon Public Records Law for the disclosure of Contractor Proprietary Information, OEBB shall notify Contractor within a reasonable period of time of the request. Contractor is exclusively responsible for defending Contractor’s position concerning the confidentiality of the requested information. OEBB is not required to assist Contractor in opposing disclosure of Confidential Information. Notwithstanding the foregoing, while OEBB is not required to actively assist Contractor in opposing disclosure of Proprietary Information, OEBB will cooperate in good faith to the extent reasonably practicable with Contractor’s efforts to protect its Proprietary Information.

18.8 OEBB is not required to return or destroy Proprietary Information if to do so would violate public records retention requirements under ORS chapter 192.

19 Indemnity (Non-Negotiable)

19.1 General Indemnity. Contractor shall defend, save, hold harmless, and indemnify the State

Employee Assistance Program Services of Oregon and Agency and their officers, employees and agents from and against all third party claims, suits, actions, losses, damages, liabilities, costs (including attorneys’ fees) and expenses (collectively, "Claims") of any nature whatsoever resulting from, arising out of, or relating to the activities of Contractor or its officers, employees, subcontractors, or agents under this Contract, including but not limited to, unauthorized disclosure of Confidential Information, professional malfeasance, infringement of intellectual property rights, intentional, willful, or wanton wrongful acts, and acts outside the scope of Work set forth in this Contract.

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

19.3 CONTRACTOR IS NOT AUTHORIZED TO SETTLE OR COMPROMISE ANY CLAIM

REFERENCED IN THIS SECTION WITHOUT THE EXPRESS WRITTEN CONSENT OF

OEBB.

19.4 OEBB is not responsible for the provision of EAP Services by Providers, and Providers furnishing services under this Contract are not OEBB agents. In no event shall indemnity obligations under this Contract apply to that portion of any liability, settlement, and related expense caused by malpractice or the acts or omissions of Providers with respect to participating Entities and Clients.

20 Insurance. (Non-Negotiable)

Contractor shall maintain insurance as set forth in Exhibit D, which is attached hereto.

21 Subcontracts, Successors, and Assignments. (Non-Negotiable)

21.1 Subcontracts. Contractor shall not enter into any subcontracts for any of the Work required by this Contract without OEBB’s prior written consent. In addition to any other provisions OEBB may require, Contractor shall include in any permitted subcontract under this Contract provisions to ensure that OEBB will receive the benefit of subcontractor’s performance as if the subcontractor were Contractor. OEBB’s consent to any subcontract does not relieve Contractor of any of its duties or obligations under this Contract.

Employee Assistance Program Services

21.2 Successors and Assigns. The provisions of this Contract are binding upon and inure to the benefit of the parties to this Contract, their respective successors, and permitted assigns, if any.

21.3 No Assignment. Contractor shall not assign or transfer any of its rights or delegate its obligations under this Contract without OEBB’s prior written consent.

22 Survival

All rights and obligations shall cease upon termination or expiration of this Contract, except for the rights and obligations set forth in the following Sections and Exhibits:

22.1 Group Benefits Contract: Certifications (including those made in amendments);

22.2 Exhibit A: This Section as well as Sections 1, 10 through 13, and 17 through 20, and all other provisions and exhibits which by their nature survive termination of this Contract;

22.3 Exhibit B: None;

22.4 Exhibit C: Those reports that may be due after expiration or termination of the obligation to provide services;

22.5 Exhibit D: Professional liability insurance as required by those terms and Network Security and Privacy Liability insurance for so long as Contractor retains any Records created under and pursuant to this Contract; and

22.6 Exhibit E: for so long as Contractor retains any Records created under and pursuant to this

23 Notices

23.1 Except as otherwise expressly provided in this Contract, any communications between the parties hereto or notices to be given hereunder will be given in writing by email, personal delivery, or mailing through U.S. mail and postage prepaid, to Contractor or OEBB at the address, number or email address set forth in this Contract, or to such other addresses or numbers as either party may indicate pursuant to this Section. All such communications or notices shall be deemed given and effective as follows:

23.1.1 Via U.S. postal service: effective seven (7) calendar days after mailing.

23.1.2 Via personal delivery: effective when actually delivered.

23.1.3 Via email: effective upon the sender’s receipt of confirmation generated by the recipient personally. To be effective against OEBB, any notice transmitted via email must be confirmed either by return email or by demonstrating through other technological means that the email has been delivered to the intended email address.

Employee Assistance Program Services

23.2 Contractor’s Notice Contact Information.

Company Name:

Attn: Contact Person Phone:

Email:

23.3 OEBB’s Notice Contact Information

Oregon OEBB Attn: OEBB/OEBB Contracts Team 500 Summer St NE – Dept. 89 Salem, Oregon 97301-1094 Phone: TBD Email: TBD

24 Entire Contract

The Group Benefits Contract and its attached Exhibits A through E constitute the entire agreement between the parties (the “Contract”). Communication materials prepared by OEBB or Contractor for distribution to do not constitute a part of this Contract unless part of an Exhibit to this Contract.

There are no understandings, agreements, or representations, oral or written, not specified herein regarding this Contract.

25 Order of Precedence

The parties agree exhibits identified in Section 25 are by this reference incorporated into and comprise the Contract. To the extent provisions contained in more than one of the foregoing Group Benefits Contract and exhibits apply in any given situation, the parties agree: (i) to read such provisions together whenever possible to avoid conflict, and (ii) to apply the following descending order of precedence only in the event of an irreconcilable conflict:

The Group Benefits Contract - without exhibits Exhibit A - Legal Terms and Conditions Exhibit E –Privacy and Security Requirements Exhibit B - Scope of Work Exhibit C – Reporting and Performance Requirements Exhibit D – Insurance Requirements

26 Waiver

No waiver, consent, modification or change of terms of this Contract will bind the parties unless in writing and signed by both parties and all necessary State approvals have been obtained in writing.

Such waiver, consent, modification, or change, if made, will be effective only in the specific instance and for the specific purpose given. The failure of OEBB to enforce any provision of this Contract in

Employee Assistance Program Services one instance will not constitute a waiver by OEBB of its right to enforce that or any other provision.

27 Amendments

27.1 Any change or amendment to this Contract must be approved by an officer of Contractor, an officer of OEBB, and, if applicable, the Oregon Attorney General and must also refer specifically to this Contract to be valid. No amendment to this Contract is effective unless it is in writing signed by the parties, and all approvals required by applicable law have been obtained before becoming effective.

27.2 The parties may amend the Contract to change rates and fees and add additional program requirements effective as of any anniversary of the Contract Effective Date. OEBB will not pay Contractor for Work performed before the Contract Effective Date or after the expiration or termination hereof.

27.3 OEBB may amend this Contract to the extent provided in the Request for Proposals from which this Contract arose, and to the extent permitted by applicable statutes and administrative rules.

28 Force Majeure (Non-Negotiable)

Neither OEBB nor Contractor will be liable to the other for any delay or failure of any performance of any the obligations under this Contract when such failure or delay is wholly or primarily caused by acts or events beyond their reasonable control, including, fire, riot, acts of God, terrorist acts, acts of political sabotage, acts of civil or military authority, or war, floods, wildfire, floods, earthquake, volcanic eruptions, or other similar natural disasters. Except as expressly provided otherwise in this Section, Contractor shall make all reasonable efforts to remove or eliminate such the cause of delay or default and shall, upon the cessation of the cause or delay, diligently pursue performance of its obligations under this Contract. In addition to the foregoing, Contractor shall use its greatest possible efforts to make its Critical Incidents Stress Debriefings, Crisis Consultation services, and similar emergency services promptly available in the event of an incident requiring them.

29 No Third Party Beneficiaries

OEBB and Contractor are the only parties to this Contract and are the only parties entitled to enforce the terms of this Contract. Nothing in this Contract gives, is intended to give, or will be construed to give or provide any benefit or right not held by or made generally available to the public, 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 Contract.

Participating Entities are intended third party beneficiaries of the services provided and the Work performed by under this Contract.

30 Severability

If any term or provision of this Contract is declared by a court of competent jurisdiction to be illegal or otherwise invalid, the validity of the remaining terms and provisions will not be affected, and the rights and obligations of the parties will be construed and enforced as if the Contract did not contain

Employee Assistance Program Services the particular term or provision held to be invalid.

31 Code of Conduct

The following terms and conditions supplement and do not replace any provisions required by the rules or policies of OEBB:

31.1 Prohibited Practices. Except as disclosed in writing to and accepted or authorized in writing by OEBB, or as otherwise expressly permitted or required by this Contract, Contractor shall not, and shall assure that its Affiliates shall not, in any way:

31.1.1 Take unfair advantage of OEBB, Clients, and participating Entities through manipulation, concealment, abuse of privileged information, misrepresentation of material facts or any other unfair practice.

31.1.2 Mislead OEBB, Clients, and participating Entities through deceptive acts or practices, false advertising claims, misrepresentations regarding the EAP program of Contractor.

31.1.3 Engage in any conduct, conspiracy, contract, agreement, arrangement or combination, or adopt or follow any practice, plan, program, scheme, artifice or device similar to, or having a purpose and effect similar to, the conduct prohibited above.

31.2 Reserved

31.3 Conflicts of Interest. To maintain independence of judgment and action, Contractor and

Affiliates shall avoid conflict of interest or an appearance of conflict that might arise because of economic or personal self-interest, except as disclosed in writing to and consented in writing by OEBB. The Contractor’s disclosure to OEBB may include suggestions for mitigating or managing a conflict of interest, such as communications barriers with conflicted individuals. While it is impossible to list all situations that could constitute a conflict of interest, the following are some common examples:

31.3.1 Using property or non-public information of OEBB, Clients, or participating Entities, or an Affiliate’s position with or relationship with Contractor, for personal gain of the Contractor or Affiliate (other than compensation to Contractor expressly provided in the Contract).

31.3.2 Having an ownership or economic interest in a company that does business with a

Vendor or with Contractor or an Affiliate, where the owner or interested person is in a position to influence Contractor’s or OEBB’s relationship with the company.

31.3.3 Having the representative of a Contractor or Vendor to the State of Oregon be a family member of an employee of the State of Oregon who has authority over the Contractor or Procurement.

Employee Assistance Program Services

31.3.4 A Contractor employing a former employee of, or the Affiliate of Contractor or a

Vendor of, the State of Oregon who assisted in preparing the Procurement.

31.4 Use of Funds or Assets. To the extent it uses funds and assets of the State of Oregon under the Contract, Contractor shall not, directly or indirectly:

31.4.1 Use funds or assets for any purpose which would be in violation of any applicable law or regulation.

31.4.2 Make contributions to any political candidate, party, or campaign either within or without the United States.

31.4.3 Establish or maintain a fund, asset, or account that is not recorded and reflected accurately on the books and records of Contractor or the State of Oregon.

31.4.4 Make false or misleading entries in the books and records of Contractor or the State of Oregon, or omit to make entries required for these books and records to be accurate and complete.

31.4.5 Effect a transaction or make a payment with the intention or understanding that the transaction or payment is other than as described in the documentation evidencing the transaction or supporting the payment.

31.5 Arms’ Length Transactions. Except as authorized in writing by OEBB, Contractor shall assure that all relationships with its Affiliates and business partners relating to the State of Oregon are conducted at arms-length using criteria approved by OEBB and are based on fairness and the best interests of OEBB, Clients, and participating Entities.

31.5.1 In any dealings with a supplier, customer, government official, or other person or entity, Contractor or its Affiliate shall not request, accept, or offer to give any payments, gifts, trips, kickbacks, or other significant things of value, the purpose or result of which could be to influence the bona fide EAP program benefit received by OEBB, Clients, and participating Entities or that may be construed as swaying OEBB Procurement of the EAP program based on other than the merits of the EAP program and the evaluation criteria in the Procurement. For this purpose, a “significant thing of value” will mean a thing that a person could not lawfully receive or be given as an employee of OEBB.

31.5.2 In any dealings with a supplier, customer, government official, or other person or entity for or on behalf of OEBB, Clients, and participating Entities or in connection with a Procurement, Contractor and its Affiliates shall not exchange business gifts, meals, entertainment, or other business courtesies that are intended to interfere, or are in a magnitude that may have the effect of interfering, with the recipient’s duty to act in the best interests of OEBB, Clients, and participating Entities or to interfere with the recipient’s business judgment.

Employee Assistance Program Services

31.6 Representation and Warranty of Compliance. Contractor represents and warrants to

OEBB that Contractor and its Affiliates complied with the Code of Conduct in this Section 33 in connection with the RFP under which this Contract was issued. The provisions of this Code of Conduct do not alter any stricter or different guidelines or prohibitions of OEBB.

31.7 Oregon False Claims Act. Contractor acknowledges the Oregon False Claims Act, ORS

180.750 to 180.785, applies to any action by Contractor pertaining to this Contract, including the procurement process relating to this Contract, that constitutes a "claim" (as defined by ORS 180.750(1)). By its execution of this Contract, Contractor certifies the truthfulness, completeness, and accuracy of any statement or claim it has made, it makes, it may make, or causes to be made that pertains to this Contract. In addition to other penalties that may be applicable, Contractor further acknowledges that if it makes, or causes to be made, a false claim or performs a prohibited act under the Oregon False Claims Act, the Oregon Attorney General may enforce the liabilities and penalties provided by the Oregon False Claims Act against Contractor. Contractor understands and agrees that any remedy that may be available under the Oregon False Claims Act is in addition to any other remedy available to the State or OEBB under this Contract or any other provision of law.