DELC PMP RFP Att A - Sample Contract - Final.pdf

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STATE OF OREGON

INFORMATION TECHNOLOGY SERVICES CONTRACT

This Information Technology Consulting Services Contract (Contract) is entered into by and between the State of Oregon (State) acting by and through the Department of Early Learning (Agency or DELC), and_____, an __________ corporation (Contractor) and is effective as of the Effective Date (defined below).

RECITALS

1. Agency desires to engage a Contractor to provide a provider Management Platform (the “System” as defined below) and services to enable Agency to achieve specific business and Agency mission objectives defined in this Contract, including professional services and knowledge transfer. To that end, Agency issued RFP #___________.

2. Contractor is the successful proposer to the RFP, and Agency desires Contractor to provide the System and perform the Services.

3. Contractor desires to provide the System and perform the Services for Agency.

AGREEMENT

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

1. DEFINITIONS.

“Agency Data” means information created and information stored by Agency or Contractor on behalf of Agency through the Services, including Personal Information.

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

“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. Contractor’s Authorized Representative is the person so identified in Exhibit E. Agency’s Authorized Representative is the person so identified in Exhibit F.

“Business Days” means Monday through Friday, 8:00 a.m. to 5:00 p.m., Pacific Time, excluding State of Oregon holidays and business closure days.

“Calendar Days” means contiguous days.

“Contractor Intellectual Property” means any intellectual property that is owned by Contractor, which includes any proprietary software or systems and contained in or necessary for the use of the Deliverables or Services. Contractor Intellectual Property includes Software owned by Contractor, including the software as described in Exhibit G, Documentation, and derivative works and compilations of any Contractor Intellectual Property.

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“Defect” means a reproducible failure of the System to operate in accordance with the Requirements in Exhibit A-1, specifications under a Statement of Work, or as required under a Service Level Agreement, despite the proper use of the System. A Defect may be due to a data error, or a problem with the System, Documentation, or both. Prior to Final Acceptance, a Defect may be due to a missed, missing, or misinterpreted Requirement. Defects fall into one of the following categories:

Level 1 – Critical. The System or a main subsystem is unavailable, preventing the System or a core function from operating or causing core functions or major functionality to operate with grossly incorrect results, such as material data processing errors. There is no workaround.

Level 2 – High. Use of the System or a subsystem is interrupted or a System failure otherwise causes major functions to not operate or to operate with significantly incorrect results, such as data processing errors. There is no workaround.

Level 3 – Low. Does not qualify as a Level 1 Defect or Level 2 Defect but which nonetheless prevents minor functionality from operating or causes minor functions to operate with incorrect results. There is a clear business need to have the System repaired, but workarounds exist for business operations.

Level 4 – Incidental. Does not affect functionality of the System. Low priority with no direct impact on clients or Agency staff. Cosmetic or nonessential in nature.

“Deliverable” means all items that Contractor is required to deliver to Agency under this Contract, including Work Product.

“Documentation” means all documents, including documents that are Deliverables described in a Statement of Work, and which may include reports, minutes, manuals, training materials, operator’s and user manuals, guides, commentary, listings, requirements documentation, traceability matrices, and other materials that are to be delivered by Contractor under this Contract and for use in conjunction with and for the operation of the System. Documentation includes documents in hard copy or electronic form.

“Enhancements” means improvements to or additional components of the Services that add functionality.

“Production Environment” means the logical group of virtual or physical resources that is a permanent environment established for the daily business use and maintenance of the System in a live environment.

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

“Services” means all effort to be expended by Contractor under the Contract, including installation, configuration, implementation, maintenance and support of the System, completion of Tasks, advice and expertise, and development and delivery of Deliverables.

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“System” means the software, equipment, hardware, Work Product, Deliverables, intellectual property, and Documentation described in a Statement of Work that comprises the System, functionality, and operations that Contractor will deliver under this Contract.

“State” means the State of Oregon.

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

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

“Upgrade” means upgrades, improvements or changes to the Software or other aspects of the Services that are designed to improve operating performance and to reflect changes in applicable laws without changing the basic functions of the Software and that are generally made available by Contractor in its sole discretion at no additional charge to Contractor’s other licensees of the Software. A new Upgrade typically will be indicated by the addition of one to the second digit of the upgrade number (e.g. v.X.2 would be the next Upgrade after v.X.1).

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

Notwithstanding anything in the immediately preceding sentence to the contrary, Work Product is not Agency Intellectual Property, Contractor Intellectual Property, or Third Party Intellectual Property.

2. TERM. The Effective Date of this Contract is [_________], or the date on which this Contract is fully executed and approved according to applicable laws, rules and regulations, whichever is later. This Contract terminates on [date to be determined at Contract execution, anticipated to be _1__ year from Final Acceptance], unless otherwise terminated or extended in accordance with its terms. The State may extend this Contract for additional terms upon agreement of the parties.

3. SCOPE OF SERVICES.

3.1. Responsibilities of Contractor. Contractor shall deliver the System and perform the Services as set forth in the Statement of Work, in accordance with the applicable current, accepted Project Implementation Plan and Schedule and the standards and methodologies set forth in the Statement of Work and elsewhere in this Contract, including the Service Level Guarantees and Performance Standards. Contractor shall perform the Services:

• Employing a methodology that conforms to the standards established by the Project Management Institute (PMI) as described in the Project Management Body of

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Knowledge (PMBOK), Sixth Edition or more current (PMBOK Guide, ANSI/PMI 99-001- 2017 or as updated), supplemented by standards set forth in ISO 12207; and

• In compliance with information technology standards established by Enterprise Information Services (EIS), found at: https://www.oregon.gov/das/Pages/policies.aspx, which may be updated from time to time.

Contractor shall cooperate with Agency and its designated third party contractors by providing access and information on the System and Contractor’s Services (such as: architecture, design, operating environment, security, interfaces, and operating parameters) as required for all oversight activities and Agency-identified third party services.

3.2. Responsibilities of Agency. If Agency fails to provide resources as required in the Statement of Work and that failure does not exceed thirty (30) Calendar Days, Contractor’s sole remedy is an extension of the applicable delivery dates corresponding to the delay caused by Agency. If, however, Agency’s failure to provide such resources exceeds thirty (30) Calendar Days and Contractor can show to the reasonable satisfaction of Agency that Agency’s failure has resulted in an unavoidable increase in the cost of the Services required for the Statement of Work, then Contractor will be entitled to recover from Agency the reasonable amount of such increased costs. Contractor’s right to delay applicable delivery dates or recover for increased costs may be exercised only if Contractor provides Agency with reasonable notice of Agency’s failure and Contractor uses commercially reasonable efforts to perform notwithstanding Agency’s failure to perform.

3.3. Performance of Services. Contractor shall deliver Deliverables and complete the Tasks as set forth in the Statement of Work, attached hereto as Exhibit A, by no later than the date or dates set for delivery in the Statement of Work.

3.4. Final Acceptance of the Implementation Services. Final Acceptance of the Implementation Services will occur when the following events have occurred or conditions exist:

3.4.1. Agency has notified Contractor that the System meets all acceptance criteria and that all acceptance tests required in the Statement of Work have been successfully completed;

3.4.2. The System is stable, complete, and operating correctly as specified in the Statement of Work without Level 1, Level 2, or Level 3 Defects;

3.4.3. All Documentation is complete, inventoried, and accepted by Agency. Contractor shall provide all text Documentation as specified in the Statement of Work;

3.4.4. All Software, configuration data, and system configuration information is complete, and are stored and controlled under a configuration management system as specified in the Statement of Work;

3.4.5. Contractor has reconciled all Requirements against the delivered, tested System to ensure Contractor has clearly and transparently met each Requirements;

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3.4.6. Agency has notified Contractor that State of Oregon authorizations to accept the System have been received; and

3.4.7. Contractor has completed and Agency has accepted Deliverables for User Training and Technical Training as specified in the applicable Statement of Work.

3.5. Warranty Period. Contractor shall warrant the initial implementation of the System for a period of three hundred and sixty-five (365) Calendar Days following Final Acceptance. During the Post-Implementation Warranty Period, Contractor shall, at no additional charge to Agency, furnish such materials and Services necessary to correct any Defects in the System that prevent the System from meeting the Acceptance Criteria and Contract warranties. Contractor shall cure Defects discovered during the Post-Implementation Warranty Period that prevent the System from meeting the Acceptance Criteria and Contract warranties.

3.6. Ongoing Services. Following Final Acceptance of the Implementation, Contractor shall provide Agency and its end users the System and Services on a annual/quarterly/monthly basis as set forth in this Contract.

3.6.1. Upgrades. Contractor shall furnish Upgrades to the System to Agency without additional charge when such Upgrades are made generally available by Contractor to its customers without additional charge. Contractor will provide release notes describing each Upgrade, when furnished, and documentation for the appropriate user manuals.

3.6.2. Enhancements. Contractor shall inform Agency of the availability of Enhancements for which a separate license fee and license agreement are required. If an Enhancement is licensed by Agency under an amendment to this Contract completed in accordance with Section 7, this Contract will apply to such Enhancement. Agency understands additional fees may apply.

3.6.3. Technology Refresh. It is Contractor’s intent to provide Agency with a System or Services which meet or exceed industry standards for the duration of the Contract. As such, and subject to the terms and conditions of this Contract, Contractor shall use commercially reasonable efforts to upgrade the System or Services to support new frequencies, technologies, and services during the Contract term consistent with upgrades provided to its other customers. Contractor has the right to upgrade the Software or hardware and implement new technologies to better serve Agency and its end users, provided that (i) such actions by Contractor do not impair Agency's rights hereunder or result in any interference with Agency operations at the time of any upgrade; and (ii) such actions by Contractor are undertaken in accordance with and are governed by the terms of this Contract. In the event that Contractor’s upgrading of equipment, hardware or Software or deployment of new technologies would involve changes or interference with Agency’s operations or Agency equipment or facilities used to access the System or Services, then Contractor shall request Agency's prior written approval, which will not be unreasonably withheld, conditioned, or delayed.

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3.6.4. Warranty for System Changes. Contractor shall warrant System changes that modify or enhance the System, and that are not Defect corrections, for a period of ninety (90) Calendar Days following acceptance of the implemented change. Contractor shall, at no additional charge to Agency, furnish such materials and Services necessary to correct any Defects relating to the System change that prevent the System from meeting the acceptance criteria and Contract warranties. Contractor shall cure Defects discovered during the System Change Warranty Period that prevent the System from meeting the acceptance criteria and Contract warranties.

3.6.5. Business Continuity Management and Disaster Recovery. Contractor shall deliver and maintain Business Continuity Management and Disaster Recovery Plan and Procedures for the System that are acceptable to Agency. In the event of a disaster, Contractor shall comply with the provisions of and deliver Services according to the Business Continuity Management and Disaster Recovery Plan and Procedures.

3.6.6. Response to Public Records Request for Agency Data. Agency, as an executive department agency of State, must respond to requests for Agency Data and other public records under Oregon’s Public Records laws, including ORS 192.311 to 192.478, within set timeframes. Contractor shall support the ability of the State to respond to public records requests for Agency Data in accordance with applicable law.

3.7. Performance Standards and Service Level Agreements; Performance Reporting.

Contractor shall meet or exceed the performance standards and Service Level Guarantees established in Exhibit A, Statement of Work, and in Exhibit B, Service Level Guarantees and Performance Standards, during the Contract term.

3.7.1. Failure to Perform. If Contractor fails to meet a performance standard, Contractor shall: (i) investigate, assemble and preserve pertinent information with respect to, and report on the causes of, the failure, including performing a root cause analysis of the failure; (ii) advise Agency, as and to the extent requested by Agency, of the status of remedial efforts being undertaken with respect to such failure; (iii) minimize the impact of and correct the problem and begin meeting the performance standard; and (iv) take appropriate preventive measures so that the failure does not recur.

3.7.2. Service Credits. Contractor shall pay the service credits or liquidated damages specified in Exhibit B if Contractor fails to provide Deliverables and Services as and when required by a Statement of Work specified in Exhibit A or fails to meet the Service Level Guarantees specified in Exhibit B. This section does not limit Agency’s rights with respect to the events upon which Agency may rely as a basis for Agency’s termination of this Contract for cause.

3.7.3. Measurement and Monitoring Tools. Contractor shall measure and monitor System performance or Services against the applicable Service Level Guarantees and shall utilize the necessary measurement and monitoring tools and procedures required to measure

Information Technology Services Agreement Page 7 of 67 and report Contractor’s performance of the Services against the Service Level Guarantees. Such measurement and monitoring must permit reporting at a level of detail sufficient to verify compliance with the Service Level Guarantees and is subject to audit by Agency. Contractor shall provide Agency with information and access to such tools and procedures, for purposes of auditing and verification.

3.8. Transition Services. Contractor shall provide transition services to support a responsible and secure transition of Services and Agency Data to another service provider or to Agency (Transition Services).

3.8.1. Upon Agency request to provide Transition Services or upon termination of the Contract and notwithstanding the reason for termination (whether for cause or without cause and whether by Contractor or Agency, and whether for all or some Services), Contractor shall continue to provide Services, including the System and shall provide Transition Services as described below for the period of up to one hundred eighty (180) Calendar Days (the “Transition Period”).

3.8.2. Transition Services. Contractor shall complete the transition of Services from Contractor and its subcontractors to Agency and to any providers that Agency designates, without causing any unnecessary interruption of or adverse impact on the Services. Without limiting the generality of the aforementioned obligations, Contractor shall:

• Provide Agency and any Agency-designated provider with all Agency Data, in a format designated by Agency.

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

• Promptly and orderly conclude all Services as Agency may direct. This includes the documentation of work in progress, return of all Agency property, and other measures to provide an orderly transition to Agency and any Agency-designated provider.

3.8.3. The parties shall cooperate in good faith with each other in connection with their obligations under this Section 3.8 and will perform their obligations as agreed. If the Transition Period extends beyond the Contract term, the provisions of this Contract will remain in effect for the duration of the Transition Period.

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3.9. Wind Down. Upon termination of this Contract or termination of the Transition Period, whichever is later, Contractor will cease to perform Services, and Agency will pay Contractor all amounts payable to Contractor for Deliverables and Services delivered, and pre-approved expenses incurred through the end of the Contract or Transition Period; provided, however, when such termination is due to the breach or bankruptcy of Contractor, Agency will not be required to pay any amounts claimed by Contractor to be due until Agency determines what, if any, setoffs are required and the remedies owed to Agency are either agreed upon by Contractor through a settlement or ordered by a court of competent authority.

4. CONTRACTOR PERSONNEL.

4.1. Contractor acknowledges and agrees that Agency selected Contractor, and is entering into this Contract, because of the special qualifications of Contractor’s Key Persons identified in Exhibit D. Contractor’s Key Persons shall not delegate performance of their powers and responsibilities they are required to provide under this Contract to another Contractor employee(s) without first obtaining the written consent of Agency. Further, Contractor shall not re-assign or transfer a Key Persons to other duties or positions such that the Key Person is no longer available to provide Agency with the required expertise, experience, judgment, and personal attention, without first obtaining Agency’s written consent to such re-assignment or transfer, which Agency will not unreasonably withhold or delay.

Notwithstanding the foregoing, Contractor may replace Key Persons without Agency’s consent in the event any Key Persons are no longer available due to circumstances beyond Contractor’s reasonable control. In the event Contractor requests that Agency approve a re-assignment or transfer of the Key Persons, or if Contractor must replace Key Persons, Agency may interview, review the qualifications of, and approve or reject the proposed replacement(s) for the Key Persons. Any such replacement must have substantially equivalent or better qualifications than the Key Person being replaced. Any replacement personnel approved by Agency will thereafter be deemed a Key Person for purposes of this Contract and Exhibit D deemed amended to include such Key Person. Contractor shall not charge Agency, and Agency will not pay, for a replacement Key Person while such replacement acquires the project knowledge and skills necessary to perform the Services. Such period of non-charge will be agreed upon by the parties, and will last for a minimum of fourteen (14) Calendar Days but not more than twenty-eight (28) Calendar Days, and will be reflected as an adjustment to a fee for a Deliverable associated with the replacement Key Person’s Services.

4.2. Contractor’s Employees and Subcontractors. Contractor shall not use subcontractors to perform the Services without 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. Any proposed use of a subcontractor which is located outside the United States must be called to the specific attention of Agency. The System must be provided by and all Services must be performed by staff physically located within the United States or its territories.

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4.3. Anti-Discrimination. Contractor certifies that Contractor has a written policy and practice that meets the requirements described in 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 entire Contract term. Contractor’s failure to maintain such policy and practice constitutes a breach entitling Agency to terminate this Contract for cause.

4.4. 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.

Further, 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.

5. INDEPENDENT CONTRACTOR; TAXES AND WITHHOLDING.

5.1. Independent Contractor. Contractor certifies that: (i) Contractor is an independent contractor and shall perform all Services as an independent contractor; (ii) if required, Contractor is registered under ORS chapter 701 or other applicable Oregon statute to provide labor or services; (iii) Contractor has filed federal and state income tax returns in the name of Contractor or a business Schedule C as part of an authorized individual’s personal income tax return for the previous year, or expect to file federal and state income tax returns, for labor or services performed as an independent contractor in the previous year; (iv) Contractor will furnish the tools or equipment necessary for the contracted labor or services; and (v) Contractor has the authority to hire and fire employees who perform the labor or service.

Although Agency reserves the right to 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 the Services. Contractor declares and certifies by execution of this Contract that it is not an “officer,” “employee,” or “agent” of Agency, as those terms are used in ORS 30.265.

5.2. No Partnership. This Contract is not intended, and will not be construed, to create a partnership or joint venture between State and Contractor. Nothing in this Contract will be construed to make State and Contractor partners or joint venture participants.

5.3. Declaration and Certification as to Conflict of Interest. Contractor declares and certifies that (i) its performance of the Services creates no potential or actual conflict of interest as defined by ORS Chapter 244, for Contractor or any Contractor personnel or Key Persons who will perform Services under this Contract;(ii) in the event that Contractor or its personnel are

Information Technology Services Agreement Page 10 of 67 either employed by or performing services for the federal government, that no rules or regulations of the agency for which Contractor or its personnel work or are employed prohibit Contractor or its personnel from providing the Services under this Contract; and (iii) this Contract and the delivery of Services creates no other violation of ORS Chapter 244 for Contractor, its employees, agents, or contractors.

5.4. Responsible for Taxes. Contractor is responsible for all federal and state taxes applicable to compensation and other payments paid to Contractor under this Contract and, unless Contractor is subject to backup withholding, Agency will not withhold from such compensation and payments any amount 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, except as a self-employed individual.

5.5. 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 before entering into this Contract.

5.6. Disclosure of Federal Tax Identification or Social Security Number. Contractor shall provide a federal tax identification number, or if Contractor does not have a federal tax identification number, Contractor shall provide Contractor’s Social Security number. This number is requested pursuant to ORS 305.385, OAR 125-246-0330(2)(d), and OAR 150-305.100.

Social Security numbers provided pursuant to this authority will be used for the administration of state, federal and local tax laws.

6. COMPENSATION.

6.1. Maximum Compensation. Notwithstanding any other provision of this Contract to the contrary, the maximum, not-to-exceed compensation that Agency will pay to Contractor is _____Dollars ($_____) (the “Maximum Not-To-Exceed Compensation”), which includes payment for any allowable expenses for which Contractor may request reimbursement under this Contract.

6.2. Invoices. Agency will pay Contractor not more than once each month upon Contractor’s submission of a detailed invoice that sets forth the Services performed and Deliverables accepted by Agency. Such invoices must comply with the requirements of this Section 6, identify the Deliverables completed and accepted for which Contractor seeks compensation, and itemize and explain all authorized expenses for which reimbursement is claimed.

Contractor shall submit invoices to Agency’s Authorized Representative (or delegate). Agency has the right to review each such invoice for compliance with the requirements of this section and any other relevant provisions of this Contract. Agency may dispute any invoice that does not conform and withhold payment until the dispute is resolved.

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6.3. Retention Amount. Agency may hold back an amount (the "Retention Amount") of not more than ten percent (10%) of any amount that is payable by Agency to Contractor. Agency will pay the then-accrued Retention Amount to Contractor within thirty (30) Calendar Days following Final Acceptance of the Implementation.

6.4. Expenses. Agency will not pay or reimburse any expenses incurred by Contractor related to the System or Services during the completion of the Services except as authorized in the Statement Work. Any such authorized travel expenses must comply with the Oregon Travel Policy, https://www.oregon.gov/das/financial/acctng/pages/travel.aspx, including as updated.

6.5. Payments. All payments to Contractor are subject to ORS 293.462.

6.6. Limit on Payments. Contractor shall not submit invoices for, and Agency will not pay, any amount in excess of the Maximum Not-To-Exceed Compensation. If this maximum amount is increased by amendment of this Contract pursuant to Section 7, the amendment must be fully effective before Contractor performs Services or delivers goods subject to the amendment. No payment will be made for any Services performed or goods delivered before the Effective Date or after termination of this Contract.

6.7. Funds Available and Authorized. Contractor will not be compensated for Services performed under this Contract by any other agency or department of the State of Oregon.

Agency believes it has sufficient funds currently available and authorized for expenditure to finance the costs of this Contract within Agency’s biennial appropriation or limitation.

Contractor understands and agrees that Agency’s payments under this Contract are contingent on Agency receiving appropriations, limitations, or other expenditure authority sufficient to allow Agency, in the exercise of its reasonable administrative discretion, to continue to make payments under this Contract.

7. AMENDMENTS. This Contract may be amended, modified, or supplemented only by a written amendment signed by State and Contractor. Any amendment that provides for additional goods or Services may only provide for goods or Services directly related to the scope of goods and Services described in the solicitation, and no amendment will be effective until all requisite signatures and approvals are obtained. Either Agency or Contractor may request a change to this Contract, including all exhibits hereto, by submitting a written proposal describing the desired change to the other party.

7.1. Modification by Change Order. Subject to the conditions above, amendments to the Statement of Work (Exhibit A), Service Level Guarantee and Performance Standards (Exhibit B), the System Requirements (Exhibit A-1), and the related costs, may be managed through an Agency-authorized change control process. Either Agency or Contractor may request a change by submitting a written proposal describing the requested change to the other party. Agency’s and Contractor’s Authorized Representatives will review the written change request and either mutually approve it for further analysis or reject it. If both parties approve the written change request, the agreed-upon party will prepare a written change order, detailing all modifications

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7.2. Payments. Agency will pay for Services performed pursuant to an amendment or Change Order according to the acceptance and payment procedures set forth in this Contract.

8. OWNERSHIP AND LICENSES.

8.1. Agency Intellectual Property. Agency owns all Agency Intellectual Property, including Agency Data, provided to or collected by Contractor, Work Product, or any information that is otherwise created by or resulting from the Services pursuant to this Contract. Agency grants Contractor a license to use, copy, display, distribute, transmit and prepare derivative works of Agency Intellectual Property, including Agency Data and Work Product only to fulfill the purposes of this Contract. Agency’s license to Contractor is limited by the term of the Contract and the confidentiality obligations of this Contract. 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.

8.2. Contractor Intellectual Property. Contractor retains ownership of all Contractor Intellectual Property that Contractor delivers to Agency pursuant to the System and Services performed under this Contract. Contractor grants Agency a license to Contractor Intellectual Property (System) as set forth in Exhibit F-1. In the event that Work Product is Contractor Intellectual Property, a derivative work developed by Contractor based on Contractor Intellectual Property, or a compilation that includes Contractor Intellectual Property and provided Agency has paid any applicable licensing fee, Contractor grants Agency a perpetual non-exclusive, irrevocable, royalty-free, world-wide license to use, copy, display, distribute, transmit and prepare derivative works of Contractor Intellectual Property employed in the Work Product, and to authorize others to do the same on Agency’s behalf.

8.3. Work Product.

Agency owns all Work Product. The State of Oregon has all right, title, and interest (including ownership of copyright and trademark) to Work Product. All Work Product is “work made for hire” of which Agency 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 Agency any and all of its rights, title, and interest in all Work Product delivered under this Contract, 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.

Contractor waives any and all rights relating to Work Product created pursuant to 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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8.3.1. Federally Funded Work Product. Agency has all right, title, and interest (including ownership of copyright and trademark) to Work Product for which it pays, to any extent, with federal funds. Work Product is funded by Agency with federal funds provided by the federal agency. The Federal agency reserves a royalty-free, nonexclusive, and irrevocable license to reproduce, publish, or otherwise use, and to authorize others to use for federal government purposes, such Work Product. Agency grants Contractor a perpetual non-exclusive, irrevocable, royalty-free, world-wide license to use, copy, execute, perform, modify, display, distribute, and transmit Work Product developed with federally funds to other government entities, and to prepare derivative works of Work Product developed with federally funds, and to authorize others to do the same on Contractor’s behalf, for other government entities. Contractor shall not charge a development, licensing or user fee to any state, federal, or local government entity when distributing copies of, and transferring or sublicensing rights to, the federally funded Work Product to such entity. Contractor may recover costs of transferring or making such Work Product available from the receiving entity. For purposes of Section, Contractor’s exercise of its right to transfer or sublicense according to this section will be considered an activity performed by Contractor under this Contract.

8.4. Third Party Intellectual Property. Unless otherwise specified in a Statement of Work that Agency, on its own, will acquire and obtain a license to Third Party Intellectual Property, Contractor shall secure on Agency’s behalf, in the name of Agency and subject to Agency’s approval, a license to Third Party Intellectual Property provided to Agency by Contractor during the term of the Contract necessary for Contractor to deliver Contract Services and Deliverables or necessary for Agency to access and receive the benefit of the System and Deliverables.

Licenses for Third Party Intellectual Property are set forth in Exhibit F-2, and Exhibit F-2 will be deemed to include any additional licenses for Third Party Intellectual Property approved by Agency. In the event that Work Product is Third Party Intellectual Property, a derivative work based on Third Party Intellectual Property, or a compilation that includes Third Party Intellectual Property, Contractor shall secure on Agency’s behalf and in the name of Agency an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Third Party Intellectual Property and the pre-existing elements of the Third Party Intellectual Property employed in the Work Product, and to authorize others to do the same on Agency’s behalf.

8.5. Open Source Elements. Any open source materials in the Deliverables for which Agency may be subject to a license must be approved in advance and in writing by Agency. If Contractor desires to include open source materials, Contractor shall: notify Agency in writing that Contractor intends to include open source materials in a Deliverable, identify the specific portion of the Deliverable that contain open source materials, and provide a copy of the applicable license for each open source item to Agency.

8.6. 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

Information Technology Services Agreement Page 14 of 67 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.

8.7. No Rights in 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.

8.8. Competing Services. Subject to the provisions of this Section 8, and Contractor’s obligations with respect to Confidential Information, including as defined in Section 9, 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. 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.

9. CONTRACTOR’S DUTIES OF CONFIDENTIALITY AND NON-DISCLOSURE.

9.1. Confidential Information. Contractor acknowledges that it and its employees, agents, or subcontractors may, in the course of performing the Services or providing the System under this Contract, be exposed to or acquire information that is confidential to Agency or Agency’s clients. Any and all information of any form obtained by Contractor or its employees, subcontractors or agents in the performance of this Contract, including Agency Data, is deemed to be confidential information of Agency (Confidential Information). Contractor shall treat any reports or other documents or items (including software data aggregations) that result from the use of the Confidential Information in the same manner as the Confidential Information.

9.2. 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 Agency hereunder, and shall advise each of its employees and agents of their obligations to keep Confidential Information confidential. Contractor shall assist Agency in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the generality of the foregoing, Contractor shall advise Agency immediately if 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 Agency in seeking injunctive or other equitable relief in the name of Agency or Contractor against any such person. Contractor shall not at any time during or after the term of this Contract, except as directed by Agency, disclose, directly or indirectly, any Confidential

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Information to any person, except in accordance with this Contract, and that upon termination of this Contract or at Agency’s request, Contractor shall deliver to Agency 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 performance of the Services.

The following information is exempt from Contractor’s non-disclosure obligations: (i) information that is or becomes (other than by disclosure by Contractor) publicly known; (ii) information that is furnished by Agency to others without restrictions similar to those imposed by this Contract; (iii) information that is rightfully in Contractor’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Contract; (iv) information that is obtained from a source other than Agency without the obligation of confidentiality, (v) information that is disclosed with the written consent of Agency; (vi) information that is independently developed by employees, agents or subcontractors of Contractor who can be shown to have had no access to the Confidential Information; or (vii) information that is required to be disclosed by law.

9.3. Privacy and Security Requirements. Contractor and its employees, agents, and subcontractors shall comply with laws, regulations, and policies governing access to and use of Agency Data, including as required in the Privacy and Security and Hosting Requirements Exhibit attached as Exhibit G, as they are stated elsewhere in this Contract, and as such laws, regulations, and policies are updated or otherwise made available to Contractor.

9.4. Non-Disclosure Agreement. Contractor shall upon Agency’s request obtain executed non-disclosure agreements from Contractor’s employees, agents, and subcontractors performing Services under this Contract.

9.5. Background Checks. Contractor’s employees, agents and subcontractors that will perform Services under this Contract must submit to a background check conducted by the State. Such background check may include any combination of fingerprinting, Oregon Law Enforcement Data Systems (“LEDS”) and Federal Bureau of Investigation Criminal Justice Information Services (“FBI CJIS”) background checks and must occur prior to arrival on Agency premises or other State facilities, or prior to access of Agency Confidential Information, whichever occurs first. Background checks will be performed at Contractor’s expense. Agency in its sole discretion has the right to reject any Contractor employee, agent, or subcontractor, or limit any such person’s access to State systems or premises based on the results of the background check.

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

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9.7. Injunctive Relief. Contractor acknowledges that breach of this Section 9, 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.

9.8. Publicity. Contractor agrees that it will not disclose the form, content or existence of this Contract or any Deliverable 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.

10. 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 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 ten (10) Calendar Days of disclosure.

10.1. Agency may disclose Contractor proprietary information to its third-party Quality Assurance contractor, and to State and federal oversight authorities to make required reports, to comply with requests for information, or to comply with an audit.

10.2. Agency’s obligations under the Oregon Public Records Laws, including ORS 192.311 to 192.478, which may require disclosure of proprietary…