OHA-DHS-OSH Video Conferencing RFP Master Services Agreement sample.finalapproved.docx

ATTACHMENT A

STATE OF OREGON

SAMPLE MASTER SERVICES AGREEMENT #XXXX

This Master Services Agreement (“MSA”) is entered into by and between the State of Oregon acting by and through its Department of Administrative Services, Procurement Services (“DAS”), on behalf of the Oregon Health Authority, the Department of Human Services, and the Oregon State Hospital (individually referred to as“Agency” and collectively referred to as “Agencies”) and __________ corporation (“Contractor”), both individually without distinction as “Party” and collectively as “Parties”. This MSA is effective as of the Effective Date (defined below).

RECITALS

DAS desires to enter into a MSA with Contractor to provide video conferencing equipment and related services to Agencies as generally described in the Description of Products and Services; Price List attached hereto as Exhibit B and as more particularly described in a Service Order Contract (defined below).

On June 14, 2022, DAS issued RFP # S-DASOBO-00002645.

Contractor submitted a proposal and was a successful proposer and desires to perform the Services for Agencies pursuant to the terms of this MSA.

AGREEMENT

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

1. PURPOSE OF MASTER SERVICES AGREEMENT. This MSA is for the purchase, installation, operation, maintenance and support for video conferencing equipment and systems as more particularly described in the Description of Products and Services; Price List (Exhibit B) attached hereto and made a part hereof. In providing Services pursuant to this MSA, Contractor shall comply with all requirements of the MSA, including, but not limited to the Performance Standards and Metrics (Exhibit D).

This MSA establishes terms and conditions applicable to Contractor and DAS in connection with the Services, including but not limited to:

1.1. the form of the ordering instruments to be used by Agencies and Contractor to enter into Service Order Contracts (“SOCs”) or other ordering instruments (collectively, “Contracts”);

1.2. the terms and conditions applicable to Contracts;

1.3. the process through which Contracts will be created; and

1.4. the pricing applicable to Contracts.

Each Contract will specify the Services to be performed, the associated Tasks and Deliverables to be delivered, and will incorporate the terms and conditions in Contract Specific Terms and Conditions (Exhibit A) as applicable to the Contract.

2. CONTRACT ADMINISTRATORS. The Contract Administrators for this MSA for DAS and for Contractor are the individuals identified in this Section 2, or any other individual identified in writing as the Contract Administrator to the other party.

DAS Contract Administrator

Contractor Contract Administrator

Name:

Name

Address:

Address

Address:

Address

Phone Number:

Phone Number

Email Address:

Email Address

Agencies and Contractor shall identify their Contract Administrators in the Contract.

3. EFFECTIVE DATE AND TERM. This MSA is effective on the later of (i) _________, or (ii) the date on which this MSA is fully executed and approved according to applicable laws, rules and regulations (“Effective Date”). Unless terminated or extended, this MSA expires on ___________________ (“Initial Term”). DAS and Contractor may extend this MSA by written agreement, (the Initial Term and extensions are collectively referred to as “MSA Term” provided, however, that this MSA Term does not extend longer than ten (10) years from the Effective Date. Contract expiration or termination does not extinguish or prejudice DAS’ right to enforce this MSA or Agency’s right to enforce the provisions of any Contract with respect to any Contractor breach or any default or defect in Contractor performance that has not been cured or as set forth in this MSA.

4. MASTER AGREEMENT DOCUMENTS. The MSA includes this MSA and its exhibits. If a conflict, inconsistency or ambiguity exists among any portion of this MSA or any other documents, then the issue must be interpreted in the following order of precedence:

1) This MSA less all exhibits

2) Exhibit A, Contract Specific Terms and Conditions

3) Exhibit H, Provisions Required by Federal Law

4) Exhibit D, Performance Standards and Metrics

5) Exhibit B, Description of Products and Services; Price List

6) Exhibit G, Certification for Independent Contractor Verification form,

7) Exhibit E, Insurance Requirements

8) Exhibit F, Contractor Key Persons and Other Staff, and

9) Exhibit C, Sample Service Order Contract In the event of a conflict between the terms contained in any preprinted Contractor form or Contractor ordering form or agreement of any specific product or service or any terms and conditions found in ‘click-wrap’ or online, the terms and conditions of this MSA and any Contract will control, as between Contractor and DAS and Agency.

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

5. FIRM OFFER ESTABLISHED; PRICING CHANGES, EQUIPMENT CHANGES.

5.1. Firm Offer Established. This MSA constitutes a firm offer by Contractor regardless of whether any Contract is executed. This MSA is enforceable as a firm offer pursuant to ORS 279B.140 for this MSA Term specified in Section 3, and all equipment and services pricing in Description of Products and Services;Price List (Exhibit B) is valid until this MSA expires or is terminated, unless;

i. the pricing is changed according to Section 5.3;

ii. the equipment and services are adjusted according to Section 5.4

5.2. Services and Pricing. Attached hereto as Description of Products and Services; Price List (Exhibit B) are the descriptions of the Products and Services available pursuant to this MSA, including the corresponding prices at which they are available and references to the corresponding license terms and conditions applicable to specific Services.

5.3. Pricing Changes. Contractor shall keep pricing specified in Description of Products and Services; Price List (Exhibit B) fixed for the Initial Term. Thereafter, DAS and Contractor may adjust pricing no more than once annually by MSA Amendment. Contractor shall submit all pricing increase requests to DAS’ Contract Administrator in writing and provide substantiating evidence that each request is based on demonstrable market changes impacting the cost of the Services. Pricing changes will apply to Service Order Contracts and Amendments to Contracts entered on and after the effective date of the pricing change.

5.4. Equipment Changes. The Agencies may need to change the video conference equipment and services standard or platform as technology emerges or evolves. All changes in equipment and services offered may be adjusted by MSA amendment and reflected on a revised Exhibit B, Description of Products and Services; Price List.

6. TRANSFER.

SUCCESSORS AND ASSIGNS. Contractor may not assign or transfer any of its interest in this MSA without DAS’ prior written consent. Except that, Contractor may assign or transfer this MSA without DAS’ prior written consent in the event of merger or sale of substantially all its assets, provided Contractor sends DAS written notice of the assignment or transfer within thirty (30) Calendar Days of the effective date of the merger or sale. This MSA is binding upon and shall inure to the benefit of DAS and Contractor and their respective successors and permitted assigns.

7. SIGNED CONTRACT REQUIRED FOR SERVICES.

7.1. Contract Form. Agencies and Contractor may enter into binding and enforceable Contracts only by execution of contracts substantially in the form of Sample Service Order Contract (Exhibit C).

Each Contract will specify the Services to be performed, the associated Tasks and Deliverables to be delivered, and will incorporate the terms and conditions in Contract Specific Terms and Conditions (Exhibit A) of this MSA.

7.2. DAS Threshold. Agencies may issue ordering instruments under this Addendum for any dollar amount without further delegation of procurement authority from DAS. Notwithstanding the foregoing DAS delegation, Agencies must obtain all other necessary approvals, including but not limited to legal sufficiency approval, as may be required.

7.3. Contract Negotiation. Prior to signing a Contract, Agency and Contractor may negotiate the specific Services and Products/Goods to be included in the Contract from the description of services set forth in Description of Products and Services; Price List (Exhibit B), including but not limited to the price of the Products and/or Services. Agency and Contractor may negotiate a fixed price or maximum amount payable for the Services under the Service Order Contract based on the pricing specified in Description of Services and Pricing (Exhibit B). Contractor’s pricing under any Contract will not exceed the pricing specified in Description of Products and Services; Price List (Exhibit B).

7.4. Contract Content. To order Services, Agencies must submit a Contract to Contractor that specifies all of the following:

7.4.1. Language stating that the Contract is subject to this MSA and this MSA number;

7.4.2. Language incorporating all terms and conditions into the Contract;

7.4.3. Clear description of the required Products and/or Services and associated Tasks and Deliverables;

7.4.4. Rates and maximum amount payable for the Products and/or Services (including travel and other expenses);

7.4.5. Required delivery schedule for the Products and/or Services;

7.4.6. Invoicing address; and

7.4.7. Name of Agency’s Authorized Representative and contact information for that individual, including telephone number and e-mail address.

7.5. Contract Rejection. Contractor shall reject Contracts that do not comply with this section 7. Contractor also shall reject Contracts that are not from Agencies.

7.6. Contract Creation. Each fully executed Contract creates a separate contract between Agency and Contractor that is enforceable according to its terms and is independent of all other executed Contracts. Each Contract consists only of the terms specified for Contracts in this MSA and no other terms, regardless of source. DAS is an intended beneficiary under each Contract between an Agency and Contractor.

7.7. Agency’s Liability under Service Order Contracts. Contractor shall look solely to the Agency for any rights and remedies Contractor may have at law or in equity arising under any Contract between Contractor and the Agency. Notwithstanding any provision of this MSA or any Contract, Agency’s liabilities or obligations under this MSA or any Contract including any obligation to indemnify or hold Contractor harmless against claims brought by third parties against Contractor, including any payment of attorneys’ fees, are subject to the limitations of Article XI, Section 7 of the Oregon Constitution and the Oregon Tort Claims Act, ORS 30.260 through 30.300. Contractor acknowledges and agrees that DAS is not liable to Contractor under any Contract entered into between Contractor and an Agency unless DAS is purchasing the Services as the Agency.

8. PAYMENT. Agency will pay Contractor for Services, Products and associated Deliverables according to the payment methodology specified in the Contract. Agencies will pay Contractor only for Services or Products that Contractor has delivered or completed and Agency has accepted.

9. SERVICES; PRICING. Attached hereto as Description of Products and Services; Price List (Exhibit B) is a list of the Products and Services and applicable price available pursuant to this MSA.

Contractor shall provide the Products and perform the Services in accordance with the standards and methodologies set forth in the Performance Standards and Metrics (Exhibit D) attached hereto and as set forth elsewhere in this MSA or applicable Contract. Contractor agrees to perform the Services:

9.1. Employing a methodology that conforms to the standards established by the Project Management Institute (PMI) as described in the Project Management Body of Knowledge (PMBOK), most current edition (PMBOK Guide, ANSI/PMI 978-1-62825-184-5), supplemented by standards set forth in ISO/IEC/IEEE 12207:2017.

9.2. In compliance with applicable requirements set forth in DAS/OSCIO Oregon Statewide IT and Information Security Policies, found online at: https://www.oregon.gov/das/Pages/policies.aspx as those policies are amended form time to time.

10. CONTRACTOR’S REPRESENTATIONS AND WARRANTIES.

Contractor represents and warrants to DAS that:

10.1. Contractor is not an “officer”, “employee”, or “agent” of DAS, as those terms are used in ORS 30.265;

10.2. Contractor fully understands and will perform its obligations under this MSA and will not make any claims for, or have any rights to relief based on its claim that it misunderstood the terms of this MSA, or lacked information related to its required performance under this MSA;

10.3. Contractor has the power and authority to enter into and perform this MSA;

10.4. This MSA, when executed and delivered, will be a valid and binding obligation of Contractor enforceable according to its terms;

10.5. Contractor will, at all times during the term of this MSA, be qualified to do business in the State of Oregon and professionally competent to perform the Services;

10.6. Contractor possesses and will maintain at its own expense all required licenses, certifications and permits necessary to deliver Services under this MSA;

10.7. Contractor is not in arrears in the payment of monies due and owing the State of Oregon, or any department or agency or political subdivision thereof, including but not limited to the payment of taxes and employee benefits, and will not become so during this MSA;

10.8. Contractor has no undisclosed liquidated and delinquent debt owed to the State or any agency, board, commission, department or division of the State;

10.9. Contractor shall comply with the federal, state and local laws, ordinances, rules and regulations applicable to Contractor and to its performance under this MSA;

10.10. Contractor is not in violation of, charged with nor, to the best of Contractor’s knowledge, under any investigation with respect to violation of, any provision of any federal, state or local law, ordinance or regulation or any other requirement or order of any governmental or regulatory body or court or arbitrator applicable to provision of the Services, and Contractor’s provision of the Services will not violate any such law, ordinance, regulation or order;

10.11. Contractor’s performance under this MSA, to the best of Contractor's knowledge, creates no potential or actual conflict of interest, as defined by ORS 244, for either Contractor or any Contractor personnel that will perform Services under this MSA;

10.12. Contractor represents and warrants that the personnel providing Services under this MSA are employees of the Contractor; that the Contractor withholds applicable income taxes from the pay of its employees; that Contractor pays workers’ compensation insurance premiums arising from the employment of its employees under this MSA; that Contractor makes all other applicable tax and related payments arising from that employment (including without limitation social security tax payments); and that Contractor provides employee benefits to its employees, including without limitation health insurance benefits, vacation benefits and retirement benefits;

10.13. The Certification For Independent Contractor Verification Form (Exhibit G) is true and accurate as of the Effective Date, and Contractor will notify DAS in writing if the information or certification changes during the term of this MSA such that the attached Certification For Independent Contractor Verification Form (Exhibit H) is no longer true and accurate;

10.14. To the best of Contractor’s knowledge, after due inquiry, for a period of no fewer than six (6) calendar years preceding the Effective Date of this MSA, faithfully has complied with:

10.14.1. All tax laws of the State, including but not limited to ORS 305.380(4), ORS 305.620 and ORS chapters 316, 317, and 318;

10.14.2. Any tax provisions imposed by a political subdivision of the State that applied to Contractor, to Contractor’s property, operations, receipts, or income, or to Contractor’s performance of or compensation for any work performed by Contractor;

10.14.3. Any tax provisions imposed by a political subdivision of the State that applied or apply to Contractor, or Services, or property, whether tangible or intangible, provided by Contractor; and

10.14.4. Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions.

10.15. Contractor has the skill and knowledge possessed by well-informed members of its trade or profession and Contractor will apply that skill and knowledge with care and diligence so Contractor, Contractor’s employees and any authorized subcontractors shall perform the Services, including the installation, training and maintenance services set forth in this MSA or a Contract in accordance with the highest professional standards prevailing in Contractor’s profession and in compliance with the requirements of this MSA specifications and Acceptance Criteria in any Contract; the performance of the Services will meet or exceed the Performance Standards and Metrics (Exhibit D);

10.16. Contractor certifies it does not discriminate in its employment practices with regard to race, color or ethnicity, gender (including actual or perceived gender identity), marital status, creed, age religious affiliation, sex, disability, sexual orientation, national origin. Furthermore, that in accordance with ORS 279A.112, Contractor has in place a policy and practice of preventing sexual harassment, sexual assault, and discrimination against employees who are members of a protected class. Contractor does not discriminate against any business certified under ORS 200.055 as a disadvantaged business enterprise, a minority-owned business, a woman-owned business, a business that a service-disabled veteran owns or an emerging small business. Contractor agrees, as a material condition, to maintain such policies and practices during the term of this MSA or any other Contract; and

10.17. Contractor owns or has the right to sell the Goods that are the subject of this Contract; andAny and all Products provided under this MSA; and

10.18. Contractor warrants to DAS and Agency that the Products will be free and clear of any liens or encumbrances and shall be new and unused (and, if applicable, the current model) and will carry full manufacturer warranties, and will be delivered with complete documentation (Contractor shall furnish the details of both Contractor's and manufacturer's warranties on materials and workmanship.); and

10.19. If a Product requires a license, Agency will receive the license free from any adverse claims asserted by third parties and that the Product will conform to its published documentation and such documentation will be delivered to Agency; and

10.20. Contractor warrants that all Products delivered to Agency willl be free from defects in labor, material and manufacture, will comply with the specifications set out in this MSA and the Contract, and will be suitable for the operating environment in which it is installed.

10.21. WARRANTIES EXCLUSIVE; DISCLAIMERS. THE WARRANTIES SET FORTH IN THIS MSA ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, AND CONTRACTOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

11. EVENTS OF DEFAULT.

11.1. Breach of Contract. Before a party can be found in breach of this MSA, the other party shall first deliver a notice of default to the other party. The notice must describe the specific nature of the default, cite the specific provisions of this MSA that has been violated and specify the time period in which the default must be cured, which in no event will be less than thirty (30) Calendar Days.

11.2. MSA Default. Contractor is in default of this MSA if:

11.2.1. Contractor fails to honor pricing at least or lower than the pricing specified in Description of Products and Services; Price List (Exhibit B); or

11.2.2. Contractor violates or fails to perform any covenant, representation, warranty, obligation or certification under this MSA; or

11.2.3. Contractor institutes or has instituted against it insolvency, receivership or bankruptcy proceedings which are not dismissed within sixty (60) Calendar Days of their commencement, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis; or

11.2.4. Contractor no longer holds a license or certificate that is required for Contractor to perform the Services and Contractor has not obtained such license or certificate within thirty (30) Business Days after delivery of DAS’ notice or such longer period as DAS may specify in such notice; or

11.2.5. Contractor has undisclosed liquidated and delinquent debt owed to State or any agency, board, commission, department or division of State, or

11.2.6. Either Party commits any material breach of any covenant, warranty, obligation or certification under this MSA, fails to perform the Services in conformance with the specifications and warranties provided herein, or clearly manifests an intent not to perform future obligations under this MSA, and such breach or default is not cured, or such manifestation of an intent not to perform is not corrected by reasonable written assurances of performance within thirty (30) Business Days after delivery of notice from the non-defaulting Party or such longer period as the non-defaulting Party may specify in such notice.

12. REMEDIES FOR DEFAULT.

12.1. DAS Remedies. If Contractor is in default under Section 12, DAS may, at its option, pursue any or all of the remedies available to it under this MSA and at law or in equity, including without limitation, termination of this MSA pursuant to Section 14 or pursuing a claim for damages, or both.

12.2. Contractor Remedies. If DAS is in default under Section 12 and has failed to cure the default within the time period set forth in the notice, Contractor’s sole remedy is termination of this MSA pursuant to Section 14.

12.3. Tax Compliance Remedies. The Oregon Department of Revenue may take any and all actions permitted by law relative to the collection of taxes due to the State of Oregon or a political subdivision, including (i) garnishing Contractor’s compensation under this MSA or (ii) exercising a right of setoff against Contractor’s compensation under this MSA for any amounts that may be due and unpaid to the State of Oregon or its political subdivisions for which the Department of Revenue collects debts.

13. TERMINATION.

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

13.2. DAS’ Right to Terminate. DAS may, at its sole discretion, terminate this MSA, as follows:

13.2.1. DAS may terminate this MSA upon at least thirty (30) Calendar Days’ prior written notice to Contractor; or

13.2.2. DAS may terminate this MSA if federal or state laws, regulations, or guidelines are modified or interpreted in such a way that the performance of the Services under this MSA is prohibited.

13.3. DAS’ Right to Terminate for Cause. In addition to any other rights and remedies DAS may have under this MSA, DAS may terminate this MSA, in whole or in part, immediately upon written notice to Contractor if Contractor fails to cure a default under Section 12.

13.4. Contractor’s Right to Terminate for Cause. Contractor may terminate this MSA upon written notice to DAS if DAS fails to cure a default under Section 12.

13.5. Effect of MSA Termination or Expiration of MSA. Upon termination or expiration of this MSA, Contractor shall deliver the Products or continue to provide the Services and meet its obligations under all effective Contracts issued prior to MSA termination or expiration, unless such Contract is otherwise terminated pursuant to its terms. The termination or expiration of this MSA will be without prejudice to the rights of the parties accrued up to the date of such termination or expiration.

14. DISCLOSURE OF SOCIAL SECURITY NUMBER. Contractor shall provide Contractor’s Social Security number unless Contractor provides a Federal Tax Identification 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.

15. INDEMNITIES.

15.1. General Indemnity. Contractor shall defend, save, hold harmless, and indemnify the State of Oregon, DAS, and their officers, employees and agents from and against all third party claims, suits, actions, losses, damages, liabilities, statutory penalties, costs and expenses of any nature whatsoever, including personal injury, death, damage to real property and damage to tangible or intangible personal property resulting from, arising out of, or relating to the intentional, reckless or negligent acts or omissions of Contractor or its officers, employees, subcontractors, or agents under this MSA, including: (i) any claim that Contractor, a subcontractor, or Contractor’s staff or a subcontractor’s staff are employees of the State or DAS for any reason, and (ii) any claims that the Products, Services or any tools or the use thereof infringe or violate any patent, copyright, trade secret, trademark, trade dress, mask work, utility design, or other proprietary right (collectively, “Intellectual Property Rights”) of any third party; (iii) any claim against the State or DAS, which, if true, would constitute a breach by Contractor of any of the representations, warranties, or covenants set forth in this MSA. Without limiting the generality of the foregoing, Contractor will have no obligation to indemnify DAS or the State of Oregon from and against any claims, suits, actions, losses, damages, liabilities, costs and expenses attributable solely to the acts or omissions of DAS or the State of Oregon, and their officers, employees or agents.

15.2. Control of Defense and Settlement. Contractor’s obligation to indemnify DAS as set forth in Section 15.1 is conditioned on DAS providing to Contractor prompt notification of any claim or potential claim of which DAS becomes aware that may be the subject of those sections. Contractor will have control of the defense and settlement of any claim that is subject to Section 15.1; however, neither Contractor nor any attorney engaged by Contractor will defend the claim in the name of the State of Oregon or any Agency of the State of Oregon, nor purport to act as legal representative of the State of Oregon or any of its agencies, without the approval of the Attorney General, nor will Contractor settle any claim on behalf of the State of Oregon without the approval of the Attorney General. The State of Oregon may, at its election and expense, assume its own defense and settlement in the event that the State of Oregon determines that Contractor is prohibited from defending the State of Oregon, is not adequately defending the State of Oregon’s interests, or that an important governmental principle is at issue and the State of Oregon desires to assume its own defense.

16. INSURANCE. Contractor, at its sole cost, shall obtain and maintain the minimum insurance coverages set forth on Insurance Requirements (Exhibit E) or as otherwise required by DAS.

17. COMPLIANCE WITH APPLICABLE LAW.

17.1. Compliance with Law Generally. Contractor shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to Contractor and this MSA, as may be adopted or modified from time to time. Without limiting the generality of the foregoing, Contractor expressly agrees to comply with the following laws, regulations and executive orders to the extent they are applicable to this MSA: (i) Titles VI and VII of the Civil Rights Act of 1964, as amended; (ii) Sections 503 and 504 of the Rehabilitation Act of 1973, as amended; (iii) the Americans with Disabilities Act of 1990, as amended; (iv) Executive Order 11246, as amended; (v) the Health Insurance Portability and Accountability Act of 1996, as amended by the American Recovery and Reinvestment Act of 2009 (ARRA); (vi) the Age Discrimination in Employment Act of 1967, as amended, and the Age Discrimination Act of 1975, as amended; (vii) the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended; (viii) ORS Chapter 659, as amended; (ix) all regulations and administrative rules established pursuant to the foregoing laws; and (x) all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations. These laws, regulations and executive orders are incorporated by reference herein to the extent that they are applicable to this MSA and required by law to be so incorporated. DAS’ performance under this MSA is conditioned upon Contractor's compliance with the obligations of contractors under ORS 279B.220, 279B.230 and 279B.235, which are incorporated by reference herein.

17.2. Additional Federal Provisions. In addition to and not in lieu of the general provisions in section 17.1, Contractor shall comply with the provisions required by federal law set forth in Exhibit H.

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

17.4. Tax Compliance. Contractor certifies that it has complied with and will continue to comply with the tax laws of the State of Oregon and the applicable tax laws of any political subdivision of this state, and that Contractor has no undisclosed liquidated or delinquent debt owed to this state or any political subdivision. Contractor shall, for the duration of the MSA Term, comply with all tax laws of this state and all applicable tax laws of any political subdivision of this state. For the purposes of this section, “tax laws” includes: (i) All tax laws of this state, including but not limited to ORS 305.380(4), 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 work 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.

Any failure to comply with the provisions of this subsection constitutes a material breach of this MSA. Further, any failure to comply with Contractor’s warranty in Section 11 also constitutes a material breach of this MSA. Any failure to comply entitles DAS to terminate this MSA, to pursue and recover any and all damages that arise from the breach and the termination of this MSA, and to pursue any or all of the remedies available under this MSA, at law, or in equity, including but not limited to:

17.4.1. Termination of this MSA, in whole or in part;

17.4.2. Exercise of the right of setoff, or garnishment as applicable, and withholding of amounts otherwise due and owing to Contractor, without penalty; and

17.4.3. Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief. DAS may recover any and all damages suffered as the result of Contractor's breach of this MSA, including but not limited to direct, indirect, incidental and consequential damages, costs of cure, and costs incurred in securing replacement Services and applications.

17.5. Pay Equity. As required by ORS 279B.235, Contractor shall comply with ORS 652.220 and shall not unlawfully discriminate against any of Contractor’s 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 constitutes a material element of this MSA and a failure to comply constitutes a breach that entitles Agency to terminate this MSA for cause.

Contractor may not prohibit any of Contractor’s employees from discussing the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person. Contractor may not retaliate against an employee who discusses the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person

17.6. Changes In Law Affecting Performance. Each party hereby agrees to immediately provide notice to the other of any change in law, or any other legal development, which may significantly affect its ability to perform its obligations in accordance with the provisions of this MSA. Each party shall monitor changes in federal and state laws, ordinances, and regulations applicable to its performance hereunder, and will be deemed aware of such changes within thirty (30) Calendar Days of the enactment of any such change.

18. GOVERNING LAW. This MSA is governed by and construed according to the laws of the State of Oregon without regard to principles of conflict of laws.

19. VENUE AND CONSENT TO JURISDICTION. Any claim, action, suit, or proceeding (collectively, “Claim”) between DAS (or any other agency, board, commission, department or division of the State of Oregon) and Contractor that arises from or relates to this MSA must be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon; provided, however, if a Claim must be brought in a federal forum, then it must be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. CONTRACTOR, BY EXECUTION OF THIS MSA, HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF THE COURT(S) AND WAIVES ANY CLAIM THAT SUCH FORUM IS AN INCONVENIENT FORUM. In no way may this section or any other term of this MSA be construed as (i) a waiver by the State of Oregon of any form of defense or immunity, whether it is sovereign immunity, governmental immunity, immunity based on the Eleventh Amendment to the Constitution of the United States, or otherwise, or (ii) consent by the State of Oregon to the jurisdiction of any court.

20. RECYCLING. To the maximum extent economically feasible in the performance of this MSA, Contractor shall 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)).

21. SUBCONTRACTS AND ASSIGNMENT. Contractor shall not enter into any subcontracts for any of the Services required by this MSA or assign or transfer any of its interest in this MSA without DAS’ prior written consent, as applicable which will not unreasonably withheld. DAS’ consent to a subcontract or assignment does not relieve Contractor of any of its duties or obligations under this MSA.

21.1. Any proposed use of a subcontractor which is located outside the United States must be called to the specific attention of DAS. All Services must be performed by staff physically located within the United States or its territories.

21.2. The assignment of this MSA in whole or in part to a successor organization by merger or acquisition does not require the consent of the other. Contractor is also permitted to assign its rights to payments without obtaining DAS’ consent, as applicable.

22. HEADINGS. The headings in this MSA are included only for convenience and do not control or affect the meaning or construction of this MSA.

23. AMENDMENTS. This MSA may be amended, modified, or supplemented only by a written Amendment signed by DAS and Contractor. Any Amendment that provides for additional Services may only provide for Services directly related to the Services provided under this MSA, and no Amendment will be effective until all requisite signatures and approvals are obtained. Either DAS or Contractor may request a change to this MSA, including all exhibits hereto, by submitting a written proposal describing the desired change to the other party.

24. INTENDED BENEFICIARIES. DAS and Contractor are the only parties to this MSA and are the only parties entitled to enforce its terms. Nothing in this MSA gives, is intended to give, or may be construed to give or provide any benefit or right, whether directly, indirectly, or otherwise, to third persons unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this MSA. Agencies are intended beneficiaries of this MSA.

25. INTEGRATION. This MSA and attached exhibits constitute 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 MSA.

26. COUNTERPRTS. This MSA may be executed in several counterparts, all of which when taken together constitute one contract binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Each copy of this MSA so executed constitutes an original.

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

27.1. 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;

27.2. 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 305.380(4), 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 work 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;

27.3. Contractor is an independent contractor as defined in ORS 670.600; and

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

Name (tax filing):

Address:

Citizenship: Non-resident alien Yes No

Business Designation (check one):

Corporation Partnership Limited Liability Company

Limited Liability Partnership Sole Proprietorship Limited Partnership

Federal Tax ID#: or Social Security No.:

(These numbers are requested pursuant to ORS 305.385 and OAR 150-305.100.)

CONTRACTOR, BY EXECUTION OF THIS MSA, HEREBY ACKNOWLEDGES THAT CONTRACTOR HAS READ THIS MSA, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.

Contractor:

Signature:

Name & Title: Date:

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

Signature:

Name & Title: Date:

Approved pursuant to ORS 291.047

Oregon Department of Justice

Signature:

Name & Title: Date:

Matter: 443400, GF 0184-22 master services agreement #xxxx

EXHIBIT A

CONTRACT SPECIFIC TERMS AND CONDITIONS

These Contract specific terms and conditions apply to all Contracts issued under the Master Services Agreement, including Service Order Contracts or other agreed upon ordering instruments.

1. Definition of Terms. For purposes of this Contract, capitalized words are defined below:

“Acceptance” or “Accepted” means written confirmation by Agency that Contractor has completed a Deliverable according to the Acceptance Criteria and Accepted for purposes of interim payment. The term is distinct from “Final Acceptance.”

“Acceptance Criteria” means the final acceptance criteria for accepting Deliverables required under this Contract or other ordering instrument issued under this Contract, including but not limited to requirements and specifications in the Description of Products and Services; Price List (Exhibit B) to the MSA and the Service Order Contract.

“Agency Data” means information created and information stored by Agency through the Services, and information created and collected by Contractor regarding Agency and its clients during the course of providing the Services, including Personal Information.

“Agency’s Authorized Representative” means the person representing Agency who serves as Contractor’s primary point of contact for the Products and Services.

“Agency Intellectual Property” means any background information, data or intellectual property that is owned by Agency. Agency Intellectual Property includes any derivative works and compilations of any Authorized 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.

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

“Calendar Day” means contiguous days.

“Contract” or “Service Order Contract” means the agreement for Services between Agency and Contractor issued under the MSA in a form substantially similar to Sample Service Order Contract (Exhibit C).

“Contractor Authorized Representative” means Contractor’s representative who manages the processes and coordinates the Services with Agency’s Authorized Representative to ensure delivery of the Deliverables. Contractor’s Authorized Representative is the person so identified in this Contract.

“Contractor Intellectual Property” means any intellectual property that is owned by Contractor, and contained in or necessary for the use of the Deliverables, and may include any software owned by Contractor and derivative works and compilations of any Contractor Intellectual Property.

“Deliverables” 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 the Contract which may include reports, minutes, manuals, training materials, guides, commentary, listings, requirements Documentation, and other materials that are to be delivered by Contractor under this Contract. Documentation includes documents in hard copy or electronic form.

“Key Persons” means Contractor’s Authorized Representative, and all other Contractor personnel designated as Key Persons in Contractor Key Persons and Other Staff (Exhibit G) or in the Contract.

“Knowledge Transfer” means activities designed to impart detailed information from Contractor to Agency about its wireless Services. Knowledge Transfer includes Agency staff and other resources being integrated into Contractor’s work activities and being an integral part of identifying and resolving issues. Knowledge Transfer activities include ‘shoulder to shoulder’ training, which is informal training with the specific intent of developing skills or knowledge working side by side with Contractor.

“Project” means the processes and coordination of the delivery of the Products and Services.

“Scope” means the extent or range of view, outlook, application, operation or effectiveness. Scope does not include the dollar amount of the Contract.

“Services” means the Services generally described in Description of Product and Services; Price List (Exhibit B), the Contract and all efforts to be expended by Contractor under this Contract, including advice and expertise, and development and delivery of Deliverables.

“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 Agency or Contractor. Third Party Intellectual Property includes software owned by Third Parties, and derivative works and compilations of any Third Party Intellectual Property.

“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 this 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. Non-Exclusive Contract. Contractor acknowledges and agrees that by executing this Contract, Agency is not granting to Contractor the exclusive right to perform the Services or to perform other Services for Agency. Agency may contract with other entities to provide Agency with Services that are the same or similar to those provided to Contractor under this Contract or Agency may perform any or all the Services itself.

3. Compensation. Following Contractor’s delivery or completion, and Agency’s Acceptance of the Services, Agency will pay Contractor as specified in this Contract, based on the pricing established in the Description of Products and Service; Price List (Exhibit B). Contractor represents that all pricing for Product sand Services under this Contract is equal to or better than the pricing specified in the Description of Products and Services; Price List (Exhibit B). Agency will not pay Contractor any amount in excess of the amount set forth in this Contract or Description of Products and Services; Price List (Exhibit B) and will not pay for any Products and Services provided before the Effective Date or after expiration or termination of this Contract.

3.1. Payments. Agency shall pay all undisputed amounts within thirty (30) Calendar Days from receipt of each invoice determined to be correct following Agency’s review under this Contract. Contractor may assess late payment charges only to the extent permitted by ORS 293.462.

3.2. Expenses. Agency will not pay or reimburse any expenses incurred by Contractor during the completion of the Services except as authorized in this Contract. Any such authorized travel expenses must comply with the Oregon Travel Policy.

3.3. Invoices; Invoice Review/Dispute Process. 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 3.3 and this Contract, 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. Agency shall review each such invoice for compliance with the requirements of this section or any other relevant provisions of this Contract.

If an error or dispute arises concerning the amount charged in an invoice, Agency will notify Contractor of the disputed charge. Upon notification of dispute, Contractor shall submit to Agency all Documentation Agency requires to substantiate the amount charged.

Agency, in its sole discretion, will determine if the supporting Documentation provides sufficient substantiation for the disputed charges. If Agency determines that the supporting Documentation is sufficient, Agency will notify Contractor and pay Contractor the amount charged in the invoice.