Contract DASPS 1820 21 Onsite Data Destruction Sces Executed.pdf

Contract #DASPS-1820-21 Page 1 of 20

STATE OF OREGON

INFORMATION TECHNOLOGY TRAINING SERVICES

CONTRACT #DASPS-1820-21

This Information Technology Onsite Data Destruction Services (“Contract”) is entered into by and between the State of Oregon acting by and through its Department of Administrative Services, Procurement Services (“DAS”), on behalf the Office of the State Chief Information Officer also known as Enterprise Information Services, Data Center Services (“DCS” or “Agency”) and DataSafe, Inc. (“DataSafe” or “Contractor”).

Background As part of hardware end of life decommissioning activities, and to comply with federal regulations governing asset sanitization and disposal, the state needs to make sure all media that could still contain data are securely disposed of in a manner that adequately protects the confidentiality of sensitive data and renders it unrecoverable. The purpose of secure media destruction is to protect against accidental exposure of any State of Oregon controlled data that may be stored on the media. It is important to ensure that media is properly destroyed or erased when it is time to retire the media. If not properly destroyed, the data may be accessed by unauthorized individuals putting the State at risk of a data breach. If a computing device is to be sent to Surplus or it is removable media (USB Flash Drives, CD/DVD's) it should be securely erased, if possible, and the computer device's hard drives should be shredded. Removable media that is not erasable should be shredded.

DAS PS, on behalf of the Office of the State Chief Information Officer, Data Center Services, requested and received approval of Special Procurement (SP) No. SP-1272-21 to allow DCS to direct award a contract with DataSafe for onsite data destruction services for five (5) years (ORPIN Notice #DASPS-3595-21).

1. Contract Period. This Contract is effective on the date it has been signed by all parties and all required State of Oregon approvals have been obtained. This Contract expires on February 28, 2026, unless otherwise terminated or extended in writing. Contract termination shall not extinguish or prejudice Agency’s right to enforce this Contract with respect to any default by Contractor that has not been cured.

2. Purchase Order. Contractor agrees to perform, and Agency agrees to pay for the Services (the “Services”) as set forth in Exhibit A – Price List. Agency will use Exhibit A-1, Purchase Order to order the Services.

3. Consideration

a. The maximum, not-to-exceed compensation payable to Contractor under this Contract, which includes any allowable expenses, is $51,705 (the “Maximum Not-To-Exceed Compensation”). Agency will not pay Contractor any amount in excess of the not-to-exceed compensation of this Contract for completing the Services, and will not pay for Services performed before the date this Contract becomes effective or after the termination of this

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Contract. If the maximum compensation is increased by amendment of this Contract, the amendment must be fully effective before Contractor performs Services subject to the amendment. Agency estimates the destruction services to not exceed $10,341.

b. Interim payments to Contractor shall be subject to ORS 293.462, and shall be made in accordance with the payment in Exhibit A – Price List.

c. Agency will pay only for completed Services that is accepted by Agency.

d. If Contractor is a nonresident alien as defined in 26 USC § 7701(b)(1)(B), then Contractor shall, upon execution of this Contract, deliver to Agency a completed and signed W-8 form, 8233 form, or W-9 form, as applicable, from the Internal Revenue Service (“IRS”), as evidence that Agency is not required by 26 USC 1441 to withhold part of Contractor's payment. Such forms are currently available at http://www.irs.gov.

Agency may withhold payments to Contractor pending Agency's receipt from Contractor of the applicable, completed and signed form. If Agency does not receive the applicable, completed and signed form from Contractor, or if the IRS provides notice to Agency that Contractor's information on the form provided is incorrect, Agency will withhold as federal income tax 30% of all amounts Agency owes to Contractor under this Contract.

e. Contractor shall submit an invoice for each destruction services event to Agency’s Contract Administrator. The invoices shall describe all Services performed with particularity and by whom it was performed and shall itemize and explain all expenses that this Contract requires Agency to pay and for which Contractor claims reimbursement. Each invoice also shall include the total amount invoiced to date by Contractor prior to the current invoice.

4. Contract Documents. This Contract consists of the following documents, which are listed in descending order of precedence:

- this Contract less all exhibits, attached

- Exhibit A – (Price List)

- Exhibit A-1 (Purchase Order)

- Exhibit B (Required Insurance)

5. Contractor’s Personnel.

Contractor acknowledges and agrees that Agency selected Contractor, and is entering into this Contract, because of the special qualifications of Contractor.

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

b. Anti-Discrimination. Contractor certifies that Contractor has a written policy and practice that meets the requirements described in House Bill 3060 (2017 Oregon Laws, chapter 212, codified at ORS 279A.212) for preventing sexual harassment, sexual assault, and discrimination against employees who are members of a protected class. Contractor agrees, as a material term of this Contract, to maintain such policy and practice in force during the http://www.irs.gov/

Contract #DASPS-1820-21 Page 3 of 20 entire Contract term. Contractor’s failure to maintain such policy and practice constitutes a breach entitling Agency to terminate this Contract for cause.

c. Pay Equity. As required by ORS 279B.235, Contractor shall comply with ORS 652.220 and not unlawfully discriminate against any of its employees in the payment of wages or other compensation for work of comparable character on the basis of an employee’s membership in a protected class. “Protected class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability, or age. Contractor’s compliance with this section is a material term of this Contract, and Contractor’s failure to comply constitutes a breach entitling Agency to terminate this Contract for cause.

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

6. Independent Contractor; Responsibility for Taxes and Withholding

a. Contractor shall perform all Services as an independent Contractor. Although Agency may (a) determine and modify the delivery schedule for Services to be performed and (b) evaluate the quality of the completed performance, Agency cannot and will not control the means or manner of Contractor's performance. Contractor is responsible for determining the appropriate means and manner of performing any Services required under this Contract. Contractor certifies, represents and warrants that Contractor is an independent contractor of Agency under all applicable State and federal law. Contractor is not an "officer", "employee", or "agent" of Agency as those terms are used in ORS 30.265.

b. If Contractor is currently performing Services for State or the federal government, Contractor by signature to this Contract represents and warrants: Contractor's performance of this Contract creates no potential or actual conflict of interest as defined by ORS 244 and that no rules or regulations of Contractor's employing agency (state or federal) would prohibit Contractor's performance of this Contract.

c. Contractor is responsible for all federal and state taxes applicable to compensation or payments paid to Contractor under this Contract, and unless required by prevailing federal law or regulations, Agency will not withhold from compensation or payments to Contractor any amount(s) to cover Contractor's federal or state tax obligations unless Contractor is subject to backup withholding. Contractor is not eligible for any social security, unemployment insurance or workers' compensation benefits from compensation or payments paid to Contractor under this Contract.

7. Subcontracts, Successors, and Assignments

a. Contractor shall not enter into any subcontracts for any of the Services required under this Contract without Agency's prior written consent. In addition to any other provisions Agency may require, Contractor shall include in any permitted subcontract provisions to ensure that Agency will receive the benefit of subcontractor’s performance as if the

Contract #DASPS-1820-21 Page 4 of 20 subcontractor were the Contractor with respect to Sections 6, 7, 9, 10, 11, 12, 15, 16, 17, 19, and 24 Agency’s consent to any subcontract shall not relieve Contractor of any of its duties or obligations under this Contract.

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

c. Contractor shall not assign, delegate or transfer any of its rights or obligations under this Contract without Agency’s prior written consent. Agency’s written consent does not relieve Contractor of any obligations under this Contract, and any assignee, transferee, or delegate is considered Contractor’s agent.

8. No Third Party Beneficiaries. Agency 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 shall 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.

9. Funds Available and Authorized; Payments. Contractor shall not be compensated for Services performed under this Contract by any other agency or department of the State of Oregon. Agency certifies that it has sufficient funds currently authorized for expenditure to finance the costs of this Contract within the Agency's current biennial appropriation or limitation. Contractor understands and agrees that Agency's payment of amounts under this Contract is contingent on Agency receiving appropriations, limitations, allotments or other expenditure authority sufficient to allow Agency, in the exercise of its reasonable administrative discretion, to continue to make payments under this Contract.

10. Representations and Warranties.

a. Contractor’s Representations and Warranties. All express and implied warranties that are applicable to goods under ORS Chapter 72 apply to the Goods delivered under this Contract. Contractor represents and further warrants that:

1. Contractor has the authority to enter into and perform in accordance with this Contract and that this Contract, when executed and delivered, is a valid and binding obligation of Contractor that is enforceable in accordance with its terms;

2. Contractor has the skill and knowledge possessed by well-informed members of its industry, trade or profession and Contractor will apply that skill and knowledge with care and diligence and perform the Services in a timely, professional and workmanlike manner in accordance with standards applicable in Contractor’s industry, trade or profession;

3. Contractor is and shall be, at all times during the term of this Contract, qualified, professionally competent, and duly licensed to perform the Services; and

4. When used as authorized by this Contract, no Services Product infringes nor will Agency’s use, duplication or transfer of the Services Product infringe any copyright, patent, trade secret or other proprietary right of any third party.

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b. Warranties Cumulative. The warranties set forth in this section are in addition to, and not in lieu of, any other warranties provided. All warranties are cumulative and shall be interpreted broadly to give Agency the greatest warranty protection available.

11. Ownership of Services Product.

a. Definitions. As used in this Section 11 and elsewhere in this Contract, the following terms have the meanings set forth below:

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

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

3. “Open Source Elements” means any Services Product subject to any open source initiative certified license, including Services Product based upon any open source initiative certified licensed Services.

4. “Third Party Intellectual Property” means any intellectual property owned by parties other than Agency or Contractor.

5. “Services Product” means all Services Contractor delivers or is required to deliver to Agency pursuant to this Contract. Services include hard drives, thumb drives, tapes, compact discs (CDs) and digital versatile discs (DVDs) destruction.

6. “State” means the State of Oregon.

b. Service Product. Except as specified in Section 11.c and 11.e, Contractor owns all Service Product. Such Service Product is subject to the license in Section 11.e.

c. Agency Data. Agency owns all Agency Data, including Agency Data that is Service Product or that is otherwise created by or resulting from the Services. Contractor hereby irrevocably assigns to Agency any and all of its rights, title, and interest in all Agency Data, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Upon Agency’s reasonable request, Contractor shall execute such further documents and instruments to fully vest such rights in Agency.

d. New Services. All intellectual property rights in the Services Product created by Contractor under this Contract shall be the exclusive property of Agency. All Services Product authored by Contractor under this Contract shall be deemed "works made for hire" to the extent permitted by the United States Copyright Act. To the extent Agency is not the owner of the intellectual property rights in such Services Product, Contractor hereby irrevocably assigns to Agency any and all of its rights, title, and interest in such Services Product. Upon Agency’s reasonable request, Contractor shall execute such further documents and instruments reasonably necessary to fully vest such rights in Agency.

Contractor forever waives any and all rights relating to such Services Product created under this Contract, 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.

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e. Contractor Intellectual Property. Of intellectual property rights in the Services Product are Contractor Intellectual Property, Contractor hereby grants to Agency an irrevocable, non-exclusive, perpetual, royalty-free license to use, make, reproduce, prepare derivative Services based upon, distribute copies of, perform and display the Contractor Intellectual Property, and to authorize others to do the same on Agency’s behalf.

f. Third Party Services. To the extent Contractor has the authority, Contractor shall sublicense or pass through to Agency all Third Party Intellectual Property. Contractor represents and warrants that is has provided written disclosure to Agency of all Third Party Intellectual Property that must be independently licensed by Agency to fully enjoy the benefit of the Services Product. If Contractor failed to provide such written disclosure, Contractor shall secure on the Agency’s behalf and in the name of the Agency, an irrevocable, non-exclusive, perpetual, royalty-free license to use, make, reproduce, prepare derivative Services based upon, distribute copies of, perform and display the Third Party Intellectual Property, and to authorize others to do the same on Agency’s behalf.

g. Open Source Approval and Notice. Any Open Source Elements in the Services Product must be approved in advance and in writing by Agency. If Agency approves the use of Open Source Elements, Contractor shall:

i. Notify Agency in writing that the Services Product contains Open Source Elements;

ii. Identify the specific portion of the Services Product that contain Open Source

Elements; and

iii. Provide a copy of the applicable license for each Open Source Element to Agency.

h. 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 Agency. Except as expressly set forth in this Contract, nothing in this Contract may be construed as granting to or conferring upon Agency any right, title, or interest in any Contractor Intellectual Property that is now owned or subsequently owned by Contractor.

12. Indemnity; Assignment of Antitrust Rights.

a. GENERAL INDEMNITY. CONTRACTOR SHALL DEFEND, SAVE, HOLD HARMLESS, AND

INDEMNIFY STATE, ITS AGENCIES, OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES

FROM AND AGAINST ALL CLAIMS, SUITS, ACTIONS, LOSSES, DAMAGES, LIABILITIES,

COSTS AND EXPENSES OF ANY NATURE WHATSOEVER (“CLAIMS”) RESULTING FROM,

ARISING OUT OF, OR RELATING TO THE ACTS OR OMISSIONS OF CONTRACTOR OR ITS

OFFICERS, EMPLOYEES, SUBCONTRACTORS, OR AGENTS UNDER THIS CONTRACT.

b. INDEMNITY FOR INFRINGEMENT CLAIMS. WITHOUT LIMITING THE GENERALITY OF SECTION 3.I.i, CONTRACTOR SHALL DEFEND, SAVE, HOLD HARMLESS AND INDEMNIFY

STATE, ITS AGENCIES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES FROM AND

AGAINST ALL CLAIMS, SUITS, ACTIONS, LOSSES, DAMAGES, LIABILITIES, COSTS, AND

EXPENSES, INCLUDING ATTORNEYS FEES, ARISING OUT OF OR RELATING TO ANY

CLAIMS THAT THE SERVICES, THE SERVICES PRODUCT OR ANY OTHER TANGIBLE OR

INTANGIBLE ITEM DELIVERED UNDER THIS CONTRACT BY CONTRACTOR THAT MAY BE

THE SUBJECT OF PROTECTION UNDER ANY STATE OR FEDERAL INTELLECTUAL

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PROPERTY LAW OR DOCTRINE, OR AGENCY’S REASONABLE USE THEREOF, INFRINGES

ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK, TRADE DRESS, MASK SERVICES,

UTILITY DESIGN, OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY

(“INFRINGEMENT CLAIM”); PROVIDED, THAT STATE SHALL PROVIDE CONTRACTOR

WITH PROMPT WRITTEN NOTICE OF ANY INFRINGEMENT CLAIM.

c. CONTROL OF DEFENSE AND SETTLEMENT. STATE SHALL REASONABLY COOPERATE

IN GOOD FAITH, AT CONTRACTOR’S REASONABLE EXPENSE, IN THE DEFENSE OF CLAIMS

AND INFRINGEMENT CLAIMS, AND CONTRACTOR SHALL SELECT COUNSEL REASONABLY

ACCEPTABLE TO THE OREGON ATTORNEY GENERAL TO DEFEND SUCH CLAIMS AND

INFRINGEMENT CLAIMS AND SHALL BEAR ALL COSTS OF SUCH COUNSEL. COUNSEL

MUST ACCEPT APPOINTMENT AS A SPECIAL ASSISTANT ATTORNEY GENERAL UNDER

ORS CHAPTER 180 BEFORE COUNSEL MAY ACT IN THE NAME OF, OR REPRESENT THE

INTERESTS OF, STATE, ITS AGENCIES, OFFICERS, EMPLOYEES OR AGENTS. STATE MAY

ELECT TO ASSUME ITS OWN DEFENSE WITH AN ATTORNEY OF ITS OWN CHOICE AND AT

ITS OWN EXPENSE AT ANY TIME STATE DETERMINES IMPORTANT GOVERNMENTAL

INTERESTS ARE AT STAKE. SUBJECT TO THE LIMITATIONS NOTED ABOVE, CONTRACTOR

MAY DEFEND SUCH CLAIMS AND INFRINGEMENT CLAIMS WITH COUNSEL OF ITS OWN

CHOOSING PROVIDED THAT NO SETTLEMENT OR COMPROMISE OF ANY SUCH CLAIMS

AND INFRINGEMENT CLAIMS SHALL OCCUR WITHOUT THE CONSENT OF STATE, WHICH

CONSENT SHALL NOT BE UNREASOABLY WITHHELD, CONDITIONED OR DELAYED.

d. ASSIGNMENT OF ANTITRUST RIGHTS.

i. CONTRACTOR IRREVOCABLY ASSIGNS TO STATE ANY CLAIM FOR RELIEF OR CAUSE

OF ACTION WHICH CONTRACTOR NOW HAS OR WHICH MAY ACCRUE TO

CONTRACTOR IN THE FUTURE BY REASON OF ANY VIOLATION OF 15 U.S.C. § 1-15 OR

ORS 646.725 OR ORS 646.730, IN CONNECTION WITH ANY GOODS OR SERVICES

PROVIDED TO CONTRACTOR FOR THE PURPOSE OF CARRYING OUT CONTRACTOR’S

OBLIGATIONS UNDER THIS CONTRACT, INCLUDING, AT STATE’S OPTION, THE RIGHT

TO CONTROL ANY SUCH LITIGATION ON SUCH CLAIM FOR RELIEF OR CAUSE OF

ACTION.

ii. CONTRACTOR SHALL REQUIRE ANY SUBCONTRACTORS HIRED TO PERFORM ANY

OF CONTRACTOR’S DUTIES UNDER THIS CONTRACT TO IRREVOCABLY ASSIGN TO

STATE, AS THIRD PARTY BENEFICIARY, ANY RIGHT, TITLE OR INTEREST THAT HAS

ACCRUED OR WHICH MAY ACCRUE IN THE FUTURE BY REASON OF ANY VIOLATION

OF 15 U.S.C. § 1-15 OR ORS 646.725 OR ORS 646.730, IN CONNECTION WITH ANY

GOODS OR SERVICES PROVIDED TO THE SUBCONTRACTOR FOR THE PURPOSE OF

CARRYING OUT THE SUBCONTRACTOR’S OBLIGATIONS TO CONTRACTOR IN

PURSUANCE OF THIS CONTRACT, INCLUDING, AT STATE’S OPTION, THE RIGHT TO

CONTROL ANY SUCH LITIGATION ON SUCH CLAIM FOR RELIEF OR CAUSE OF ACTION.

13. Insurance. Contractor shall maintain insurance as set forth in Exhibit B, which is attached hereto.

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14. Breach; Remedies; Termination.

a. Breach by Contractor. Contractor breaches this Contract if:

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;

2. Contractor no longer holds a license or certificate that is required for Contractor to perform its obligations under this Contract and Contractor has not obtained the license or certificate within fourteen (14) calendar days after Agency delivers notice of breach to Contractor or a longer period as Agency may specify in the notice; or

3. Contractor commits any material breach of any covenant, warranty, obligation or certification under this Contract, fails to perform its obligations under this Contract within the time specified or any extension of that time, and Contractor fails to cure the breach within fourteen (14) calendar days after Agency delivers notice of breach to Contractor or a longer period as Agency may specify in the notice.

b. Agency’s Remedies for Contractor’s Breach. If Contractor is in breach under Section 13.a, then in addition to the remedies afforded elsewhere in this Contract, Agency shall be entitled to recover for any and all damages suffered as the result of Contractor’s breach of this Contract, including, but not limited to direct, indirect, incidental and consequential damages. Agency may, at Agency’s option, pursue any or all of the remedies available under this Contract and a law or equity, including, but not limited to:

1. termination of this Contract under Section 14.e.2;

2. withholding payment of all amounts in Contractor’s invoices for Services that Contractor has obligated but has failed to deliver or perform within any scheduled completion dates or has performed inadequately or defectively;

3. initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief; or

4. exercise of the right of setoff, and withholding of amounts otherwise due and owing to Contractor in an amount equal to Agency’s setoff right, without penalty.

These remedies are cumulative to the extent the remedies are not inconsistent, and Agency may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever. If it is determined for any reason that Contractor was not in breach under Section 14.a, the rights and obligations of the parties shall be the same as if this Contract was terminated pursuant Section 14.e.1.

c. Breach by Agency. Agency breaches this Contract if:

1. Agency fails to pay Contractor any amount pursuant to the terms of this Contract, and Agency fails to cure its failure to pay within thirty (14) calendar days after Contractor delivers notice of breach to Agency or a longer period as Contractor may specify in the notice; or

2. Agency commits any material breach of any covenant, warranty, or obligation under this Contract, fails to perform its obligations hereunder within the time specified or any extension thereof, and Agency fails to cure the breach within fourteen (14)

Contract #DASPS-1820-21 Page 9 of 20 calendar days after Contractor delivers notice of breach to Agency or a longer period as Contractor may specify in the notice.

d. Contractor’s Remedies for Agency’s Breach. If Agency terminates this Contract for convenience under Section 14.e(i), or if Agency is in breach under Section 14.c and whether or not Contractor elects to exercise its right to terminate this Contract under Section 14.e(iii), Contractor’s sole remedy is one of the following, as applicable:

1. For services compensable on an hourly basis, a claim against Agency for unpaid invoices, hours worked but not yet invoiced, and authorized expenses for services completed and accepted by Agency less any claims Agency has against Contractor;

2. For deliver-based services, a claim against Agency for the sum designated for completing the deliverable multiplied by the percentage of services completed and accepted by Agency, less previous amounts paid and any claims Agency has against Contractor.

If previous amounts paid to Contractor for services and goods exceed the amount due to Contractor under this Section 14.d, Contractor shall pay the excess amount to Agency immediately upon written demand.

e. Termination.

1. MUTUAL CONSENT. This Contract may be terminated at any time by mutual written consent of the parties.

2. AGENCY.

i. Agency may, at its sole discretion, terminate this Contract for its convenience upon 30 days written notice by Agency to Contractor.

ii. Agency may, in its sole discretion, terminate this Contract, immediately upon notice to Contractor, or at a later date as Agency may establish in the notice, upon the occurrence of any of the following events:

A. Agency fails to receive funding, appropriations, limitations, allotments or other expenditure authority at levels sufficient to pay for Services;

B. Federal or state laws, regulations, or guidelines are modified or interpreted in a way that either the purchase of Services by Agency under this Contract is prohibited, or Agency is prohibited from paying for Services from the planned funding source; or

C. Contractor is in breach under section 14.a.

Contractor shall stop performance under this Contract as directed by Agency in any written notice of termination delivered to Contractor under this section 14.e.

3. CONTRACTOR. Contractor may terminate this Contract immediately upon written notice to Agency, or at a later date as Contractor may establish in the notice, if Agency is in breach pursuant to section 14.c.

15. Records Maintenance; Access. Contractor shall retain, maintain, and keep accessible all records relevant to this Contract ("Records") for minimum of six (6) years, or a longer period as may be required by applicable law, following Contract termination or full

Contract #DASPS-1820-21 Page 10 of 20 performance, the period required by applicable law following Contract termination or full performance, or until the conclusion of any audit, controversy or litigation arising out of or related to this Contract, whichever ending is later. Contractor shall maintain all financial Records in accordance with generally accepted accounting principles. During this Record-retention period, Contractor shall permit State, its duly authorized representatives, and the federal government access to the Records at reasonable times and places for purposes of examination and copying.

16. Contractor’s Proprietary Information; Oregon Public Records Laws.

Agency 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 Agency to maintain the confidentiality of Contractor’s proprietary information is conditioned by and subject to Agency’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, and the provisions for the custody and maintenance of public records, ORS 192.005 – 192.170.

a. Contractor proprietary information is any information marked or designated in writing by Contractor as “confidential” prior to initial disclosure, or information disclosed orally that is confirmed in writing as “confidential” within 10 (ten) Calendar Days of disclosure.

b. Agency may disclose and provide copies of Contractor proprietary information to the extent disclosure is required by the Oregon Public Records Law (including ORS

192.311 to 192.478). If Agency receives from a third party any request under the Oregon Public Records Law for the disclosure of Contractor proprietary information, Agency will 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. Notwithstanding the foregoing, while Agency is not required to actively assist Contractor in opposing disclosure of proprietary information, Agency will cooperate in good faith to the extent reasonably practicable with Contractor’s efforts to protect its proprietary information.

c. The confidentiality obligations imposed by this Section 16 do not apply to: (i) information that becomes part of the public domain through lawful means and without breach of any confidentiality obligation by the recipient; (ii) information subsequently and rightfully received from third parties who have the necessary rights to transfer the information without any obligation of confidentiality; (iii) information known to the recipient prior to the effective date of this Contract without obligation of confidentiality; (iv) information independently developed by recipient and documented in writing without use of, or reference to, any Contractor proprietary information; or (v) information required to be disclosed by compulsory judicial or administrative process or by law or regulation; provided that if Agency is required to disclose Contractor

Contract #DASPS-1820-21 Page 11 of 20 proprietary information under clause (v), Agency will first give Contractor notice and provide such information as may reasonably be necessary to enable Contractor to take action to protect its interests.

17. Compliance with Applicable Laws and Standards.

a. Contractor shall comply with all federal, state and local laws, regulations, and ordinances applicable to this Contract or to Contractor’s obligations under this Contract, as those laws, regulations and ordinances may be adopted or amended from time to time.

b. Agency’s performance under this Contract is conditioned upon Contractor's compliance with the obligations intended for contractors under ORS 279B.220, 279B.225 (if applicable to this Contract), 279B.230 and 279B.235 (if applicable to this Contract), which are incorporated by reference herein. Contractor shall, to the maximum extent economically feasible in the performance of this Contract, use recycled paper (as defined in ORS 279A.010(1)(gg)), recycled PETE products (as defined in ORS 279A.010(1)(hh)), and other recycled plastic resin products and recycled products (as “recycled product” is defined in ORS 279A.010(1)(ii)).

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

19. Force Majeure. Neither Agency nor Contractor shall be responsible for any failure to perform or for any delay in the performance of any obligation under this Contract caused by fire, riot, acts of God, terrorism, war, or any other cause which is beyond the breaching party's reasonable control. Contractor shall, however, make all reasonable efforts to remove or eliminate the cause of Contractor’s delay or breach and shall, upon the cessation of the cause, continue performing under this Contract. Agency may terminate this Contract upon written notice to Contractor after reasonably determining that the delay or breach will likely prevent successful performance of this Contract.

20. Survival. In addition to all provisions which by their nature extend beyond Contract termination or full performance, the following provisions shall remain in effect beyond any Contract termination or full performance: 1, 8, 9, 10, 11, 12, 13, 14, 15, 19, 24, and 25.

21. Time is of the Essence. Contractor agrees that time is of the essence in the performance of this Contract.

22. Notices. All notices required under this Contract shall be in writing and addressed to the party's authorized representative. For State, the authorized representative is the Agency contact person in this Contract. Contractor's authorized representative is the contact person identified in this Contract. Mailed notices are deemed received five (5) days after the post mark date when properly addressed and deposited prepaid into the U.S.

Contract #DASPS-1820-21 Page 12 of 20 postal service. Faxed notices are deemed received upon electronic confirmation of successful transmission to the designated fax number. Notices delivered by personal delivery are deemed received when delivered to the address specified for the receiving party’s authorized representative.

23. Severability. If any 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 shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if this Contract did not contain the particular provision held to be invalid.

24. Counterparts. This Contract may be executed in several counterparts, all of which when taken together shall constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Each copy of the Contract so executed shall constitute an original.

25. Governing Law; Venue; Consent to Jurisdiction.

a. Governing Law. This Contract shall be governed by and construed in accordance with the laws of the State of Oregon, without regard to principles of conflicts of law. To the extent not modified by the terms of this Contract, the Uniform Commercial Code as codified in ORS Chapters 71 and 72 governs the Services provided under this Contract.

b. Venue; Consent to Jurisdiction. Any claim, action, suit or proceeding (collectively, “Proceeding”) between State and Contractor that arises from or relates to this Contract shall be brought and conducted solely and exclusively within the Circuit Court of State for Marion County; provided, however, if a Proceeding 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 THESE COURTS AND

WAIVES ANY OBJECTION TO VENUE IN THESE COURTS AND ANY CLAIM THAT THE

FORUM IS AN INCONVENIENT FORUM. Nothing in these provisions shall be construed as a waiver of State's sovereign or governmental immunity, whether derived from the Eleventh Amendment to the United States Constitution or otherwise, or a waiver of any defenses to Proceedings or jurisdiction based thereon.

26. Integration and Merger. This Contract constitutes the entire agreement between the parties on the subject matter hereof. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this Contract.

27. Amendments; Waiver. This Contract may be amended to the extent permitted by applicable statutes and administrative rules and as the amendment scope and process may be further described in Exhibit A, Price List. No waiver, consent, or amendment of terms of this Contract shall bind either party unless in writing and signed by Agency and Contractor, and all necessary approvals have been obtained. Waivers and consents shall be effective only in the specific instance and for the specific purpose given. The failure of State to

Contract #DASPS-1820-21 Page 13 of 20 enforce any provision of this Contract shall not constitute a waiver by State of that or any other provision.

28. Certifications and Signature of Contractor’s Authorized Representative.

The individual signing on behalf of Contractor hereby certifies and swears under penalty of perjury to the best of the individual’s knowledge that:

Contractor is not subject to backup withholding because (i) Contractor is exempt from backup withholding, (ii) Contractor has not been notified by the IRS that Contractor is subject to backup withholding as a result of a failure to report all interest or dividends, or (iii) the IRS has notified Contractor that Contractor is no longer subject to backup withholding;

The individual signing on behalf of Contractor is authorized to act on Contractor’s behalf, has authority and knowledge regarding Contractor's payment of taxes, and to the best of the signatory’s knowledge, Contractor is not in violation of any Oregon tax laws, including, without limitation, those tax laws listed in ORS 305.620 and ORS chapters 316, 317, and 318; (ii) Any tax provisions imposed by a political subdivision of this state that apply to Contractor, to Contractor’s property, operations, receipts, or income, or to Contractor’s performance of or compensation for any Services performed by Contractor; (iii) Any tax provisions imposed by a political subdivision of this state that apply to Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor; and (iv) Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions; Contractor is an independent contractor as defined in ORS 670.600; and

The supplied Contractor tax identification numbers below are true and accurate.

Contract #DASPS-1820-21 Page 14 of 20

CONTRACTOR, BY EXECUTION OF THIS CONTRACT, HEREBY ACKNOWLEDGES THAT

CONTRACTOR HAS READ THIS CONTRACT, UNDERSTANDS IT, AND AGREES TO BE

BOUND BY ITS TERMS AND CONDITIONS.

DataSafe, Inc.

Authorized Signature: _______________________________________

By (print name): _______________________________________

Title: _______________________________________

Date: _______________________________________

Federal Tax ID: _______________________________________

DataSafe Authorized Representative(s)

Name: Rob Barnett

Title: President

Address: 1220 Main Street, Suite 400 Vancouver, WA 98660

Telephone Number: 503-620-3423

E-Mail Address: rob@datasafeinc.com

President

04/20/2021

93-0884775

Rob Barnett

Contract #DASPS-1820-21 Page 15 of 20

State of Oregon acting by and through its, Office of the State Chief Information Officer, Data Center Services

Authorized Signature: _______________________________________

By (print name): _______________________________________

Title: _______________________________________

DCS Authorized Representative(s)

Name: Nandor Hermann

Address: 530 Airport Road SE Salem, OR 97301

Telephone Number: 503-373-0947

E-Mail Address: nandor.hermann@oregon.gov

State of Oregon acting by and through its Department of Administrative Services Procurement Services

Authorized Signature: _______________________________________

By (print name): _______________________________________

Title: _______________________________________

Nandor Hermann

Production Control Mgr.

April 20, 2021

Lori Nordlien

Procurement Services Manager

April 22, 2021

Contract #DASPS-1820-21 Page 16 of 20

EXHIBIT A – Price List

Quantity

0 - 24

Quantity

25 - 100

Quantity

101 - 500

Quantity

501 +

HDD Destruction $12.00 $9.00 $7.00 $6.00

Tape / Magnetic Media (inclusive of disposal)

$7.00 $6.00 $5.00 $3.00

Misc. Media DVD/CD $5.00 $5.00 $4.00 $3.00

Transportation

(over 45 mile radius) $0.75 per mile

(Effective April 2021)

Contract #DASPS-1820-21 Page 17 of 20

EXHIBIT A-1 – Purchase Order

STATE OF OREGON

PURCHASE ORDER

(PO) NO.

PAGE

Agency

Department of Administrative Services PO Date

Delivery Date

Bid Number

N/A

Requisition No.

Contractor Name and Address

DataSafe, Inc.

1220 Main Street, Suite 400 Vancouver, WA 98660

Bill To

Oregon Department of Administrative Services State Data Center 530 Airport RD SE Salem, OR 97301

Contractor FEIN

BPO/Contract Number

DASPS-1820-21

Agency Contact/Phone

Laurie Goetz/503.373.1714 Ship To

FOB

Destination Same as “Bill To”

Terms

Item

Description

Quantity

U/M

Unit Price

Extended Amt.

Special Terms and Conditions: This Purchase Order is subject to Contract #DASPS-1820-21 dated (DATE WHEN COMPLETED) between the State of Oregon and DataSafe, Inc. The terms and conditions are incorporated in the Contract.

Sub Total

Total

Contract #DASPS-1820-21 Page 18 of 20

EXHIBIT B

INSURANCE REQUIREMENTS

Contract #DASPS-1820-21

Contractor shall obtain at Contractor’s expense the insurance specified in this Exhibit B prior to performing under this Contract, and shall maintain it in full force and at its own expense throughout the duration of this Contract, and as required by any extended reporting period or tail coverage requirements, and all Warranty Periods that apply.

Contractor shall obtain the following insurance from insurance companies or entities that are authorized to transact the business of insurance and issue coverage in the State of Oregon and that are acceptable to Agency. Coverage must be primary and non-contributory with any other insurance and self-insurance. Contractor shall pay for all deductibles, self-insured retention and self-insurance, if any.

1. INSURANCE REQUIRED.

1.1 WORKERS’ COMPENSATION & EMPLOYERS’ LIABILITY.

All employers, including Contractor, that employ subject workers, as defined in ORS 656.027, shall comply with ORS 656.017 and provide workers' compensation insurance coverage for those workers, unless they meet the requirement for an exemption under ORS 656.126(2). Contractor shall require and ensure that each of its subcontractors complies with these requirements. If Contractor is a subject employer, as defined in ORS 656.023, Contractor shall also obtain employers' liability insurance coverage with limits not less than $500,000 each accident. If Contractor is an employer subject to any other state’s workers’ compensation law, Contractor shall provide workers’ compensation insurance coverage for its employees as required by applicable workers’ compensation laws including employers’ liability insurance coverage with limits not less than $500,000 and require and ensure that each of its out-of-state subcontractors complies with these requirements.

1.2 PROFESSIONAL LIABILITY.

Contractor shall provide Technology Errors & Omissions insurance in an amount of not less than $1,000,000 per claim covering Contractor’s liability arising from acts, errors or omissions in rendering or failing to render computer or information technology services, including the failure of technology products to perform the intended function or serve the intended purpose as set forth in this Contract. This insurance must include coverage for violation of intellectual property rights including trademark and software copyright, privacy liability, the failure of computer or network security to prevent a computer or network attack, misrepresentations, and unauthorized access or use of computer system or networks. This insurance must also include coverage for unauthorized disclosure, access or use of Agency Data (which may include, but is not limited to, Personally Identifiable Information (“PII”), Payment Card Data and Protected Health Information (“PHI”)) in any format. Coverage must extend to Business Associates (if applicable) and independent contractors providing Services on behalf of or at the direction of Contractor.

Contract #DASPS-1820-21 Page 19 of 20

A primary policy or combination of a primary policy and excess policy will be acceptable in order to meet the limits requirement.

1.3 COMMERCIAL GENERAL LIABILITY.

Contractor shall provide Commercial General Liability Insurance covering bodily injury, and property damage in a form and with coverage that are satisfactory to State. This insurance must include personal and advertising injury liability, products and completed operations, and contractual liability coverage, in each case arising out of Contractor’s negligence, and have no limitation of coverage to designated premises, project, or operation. Coverage must be written on an occurrence basis in an amount of not less than $1,000,000 per occurrence and $1,000,000 aggregate.

1.4 AUTOMOBILE LIABILITY INSURANCE.

Contractor shall provide Automobile Liability Insurance covering Contractor’s business use including for all owned, non-owned, or hired vehicles with a combined single limit of not less than $1,000,000 for bodily injury and property damage. This coverage may be written in combination with the Commercial General Liability Insurance (with separate limits for Commercial General Liability and Automobile Liability). Use of personal automobile liability insurance coverage may be acceptable if evidence that the policy includes a business use endorsement is provided.

1.5 ADDITIONAL INSURED.

The Commercial General Liability and Automobile Liability insurance required under this Contract must include an additional insured endorsement specifying the State of Oregon, its officers, employees and agents as Additional Insureds, including additional insured status with respect to liability arising out of ongoing operations and completed operations but only with respect to Contractor's activities to be performed under this Contract. The Additional Insured endorsement with respect to liability arising out of your ongoing operations must be on ISO Form CG 20 10 07 04 or equivalent and the Additional Insured endorsement with respect to completed operations must be on ISO form CG 20 37 04 13 or equivalent.

1.6 TAIL COVERAGE.

If any of the required insurance is on a claims-made basis and does not include an extended reporting period of at least 24 (twenty-four) months, Contractor shall maintain either tail coverage or continuous claims made liability coverage, provided the effective date of the continuous claims made coverage is on or before the Effective Date of this Contract, for a minimum of 24 (twenty-four) months following the later of (i) Contractor’s completion and Agency’s acceptance of all Services required under this Contract, or, (ii) The expiration of all Warranty Periods provided under this Contract.

Contract #DASPS-1820-21 Page 20 of 20

2. CERTIFICATE(S) AND PROOF OF INSURANCE.

Contractor shall provide to Agency Certificate(s) of Insurance for all required insurance before delivering any goods or performing any Services required under this Contract. The Certificate(s) must list the State of Oregon, its officers, employees and agents as a Certificate holder and as an endorsed Additional Insured as specified in this exhibit. If excess/umbrella insurance is used to meet the minimum insurance requirement, the Certificate of Insurance must include a list of all policies that fall under the excess/umbrella insurance. As proof of insurance Agency has the right to request copies of insurance policies and endorsements relating to the insurance requirements in this Contract.

3. NOTICE OF CHANGE OR CANCELLATION.

Contractor or its insurer must endeavor to provide at least 30 (thirty) Calendar Days’ written notice to Agency before cancellation of, material change to, potential exhaustion of aggregate limits of, or non-renewal of the required insurance coverage(s).

4. INSURANCE REQUIREMENT REVIEW.

Contractor agrees to periodic review of insurance requirements by Agency under this Contract and to meet updated requirements as agreed upon by Contractor and Agency.