RFP 170-4506-26 Attachment A Sample Contract_FINAL.docx

State of Oregon Office of the State Treasurer Services Contract

This Services Contract, numbered {---Contract ID---}, is between the State of Oregon, acting by and through the Office of the State Treasurer (Treasury) and {---Company Name---} (Contractor), a {---State of Incorporation---} corporation.

The Contract Administrators for the Contract are as follows, or as may be otherwise designated by the parties with notice from time to time:

Treasury:

[Name] [Title] [Division] [Address] [City], [State] [ZIP] Phone: [Number] Email: [Address]

Contractor:

[Name] [Title] [Address] [City], [State] [ZIP] Phone: [Number] Email: [Address]

For good and sufficient consideration, including the terms and conditions herein, the parties agree as follows:

1. Effective Date and Duration. This Contract is effective on the date this Contract has been signed by every party hereto and, when required, approved by the Department of Justice. Unless terminated or extended, this Contract must expire when Treasury accepts Contractor's completed performance or on {---End Date---}, whichever date occurs first. The term of this Contract may be extended for additional periods by execution of a written amendment extending the foregoing termination date. Expiration or termination will not extinguish or prejudice Treasury’s right to enforce this Contract with respect to any breach of a Contractor warranty or any default or defect in Contractor performance that has not been cured.

2. Statement of Work. The statement of work (the “Services”), including the delivery schedule for such Services, is contained in Exhibit A attached and incorporated by reference into this Contract. Contractor agrees to perform the Services in accordance with the terms and conditions of this Contract.

3. Consideration.

a. The maximum, not-to-exceed compensation payable to Contractor under this Contract, which includes any allowable expenses, is {---Not to Exceed Amount---}. Treasury will not pay Contractor any amount in excess of the not-to-exceed compensation of this Contract for completing the Services and will not pay for any deliverables or Services performed before the date this Contract becomes effective, including receipt of any legal approvals necessary to enter into this Contract, or after the termination or expiration of this Contract. If the maximum compensation is increased by amendment of this Contract, the amendment must be fully effective before Contractor performs work subject to the amendment.

b. Interim payments to Contractor are subject to ORS 293.462, and must be made in accordance with the payment schedule and requirements in Exhibit A.

c. Treasury will pay only for completed Services that are accepted by Treasury. Treasury will pay invoices within 45 days of receipts of invoices. All payments will be made with a check or direct deposit.

d. Contractor must submit monthly invoices to Treasury for Services performed. The invoices must describe all Services performed with particularity and by whom it was performed and must itemize and explain all expenses that this Contract requires Treasury to pay and for which Contractor claims reimbursement. Contractor must send such invoices to ost.accounting@ost.state.or.us.

4. Contract Documents. This Contract consists of the following documents which are listed in descending order of precedence: this Contract less all exhibits, attached Exhibit A (Statement of Work), Exhibit B (Insurance Requirements), Exhibit C (Contractor Certifications). [Add other exhibits as required.] In the event of a conflict among any of the documents comprising this Contract, the provisions of the document with the highest precedence will control.

5. Independent Contractor; Responsibility for Taxes and Withholding.

a. Contractor must perform all Services as an independent contractor. The Treasury reserves the right (i) to determine and modify the delivery schedule for the Services and (ii) to evaluate the quality of the Services, however, the Treasury may not and will not control the means or manner of Contractor's performance. Contractor is responsible for determining the appropriate means and manner of performing the Services.

b. If Contractor is currently performing work for the State of Oregon or the federal government, Contractor by signature to this Contract, represents and warrants that: Contractor’s Services to be performed under this Contract create no potential or actual conflict of interest as defined by ORS 244 and no statutes, rules or regulations of the state or federal agency for which Contractor currently performs work would prohibit Contractor’s Services under this Contract.

c. Contractor understands and agrees that it is not an "officer", "employee", or "agent" of the Treasury, as those terms are used in ORS 30.265.

d. Contractor must be responsible for all federal or state taxes applicable to compensation or payments paid to Contractor under this Contract and, unless Contractor is subject to backup withholding, Treasury will not withhold from such compensation or payments any amount(s) to cover Contractor's federal or state tax obligations. Contractor is not eligible for any social security, unemployment insurance or workers' compensation benefits from compensation or payments paid to Contractor under this Contract, except as a self-employed individual, if applicable.

6. Subcontracts and Assignment; Successors and Assigns.

a. Contractor may not enter into any subcontracts for any of the Services required by this Contract, or assign or transfer any of its interest in this Contract, without Treasury’s prior written consent. In addition to any other provisions Treasury may require, Contractor must include in any permitted subcontract under this Contract a requirement that the subcontractor be bound by Sections 5, 6, 7, 9, 10, 11, 15, 16, 19, 24, and 25 of this Contract as if the subcontractor were the Contractor. Treasury’s consent to any subcontract will not relieve Contractor of any of its duties or obligations under this Contract.

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

7. No Third-Party Beneficiaries. Treasury and Contractor are the only parties to this Contract and are the only parties entitled to enforce its terms. Nothing in this Contract 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 Contract.

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

9. Representations and Warranties.

a. Contractor’s Representations and Warranties. Contractor represents and warrants to Treasury that (1) Contractor has the power and authority to enter into and perform this Contract, (2) this Contract, when executed and delivered, will be a valid and binding obligation of Contractor enforceable in accordance with its terms and will not violate: (i) any provision of the charter documents of Contractor, (ii) any state law or judgment, decree, order, regulation or rule of any court, or governmental authority applicable to Contractor, or (iii) any agreement to which Contractor is bound which violation would result in a material adverse effect on the business and financial condition of Contractor, (3) the Services under this Contract will be performed in a good and workmanlike manner and in accordance with professional standards, (4) the personnel of Contractor that are responsible for discharging Contractor’s duties and obligations under this Contract are individuals experienced in the performance of the Services contemplated under this Contract and will, at all times during the term of this Contract, be qualified, professionally competent, and will have completed, obtained and performed all registrations, filings, approvals, authorizations, consents, examinations or licensing required by any governmental authority to perform the Services, and (5) there are no (i) actions, (ii) proceedings or (iii) investigations by any state or federal regulatory authority pending, or to Contractor’s knowledge threatened, against Contractor (A) that could have a material adverse effect on the business and financial condition of Contractor or its ability to perform the Services or (B) that claim or allege fraud or misrepresentation by Contractor or its officers, directors or partners, nor has Contractor, or any of its officers, directors or partners, been found liable under or guilty of any claims of fraud or misrepresentation.

b. No Overseas Access, Storage, or Transmission. Treasury Data will not be accessed from, transmitted, or stored outside of the United States or its territories, including for any maintenance, support, disaster recovery, or data backup.

c. Warranties Cumulative. The warranties set forth in this section are in addition to, and not in lieu of, any other warranties provided.

10. Ownership of Work Product.

a. Definitions. As used in this Section 10, and elsewhere in this Contract, the following terms have the meanings set forth below:

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

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

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

iv. “Treasury Data” means any data owned by Treasury.

b. Original Works. All Work Product created by Contractor pursuant to the Services, including derivative works and compilations, and whether or not such Work Product is considered a work made for hire or an employment to invent, must be the exclusive property of Treasury. Treasury and Contractor agree that such original works of authorship are “work made for hire” of which Treasury is the author within the meaning of the United States Copyright Act. If for any reason the original Work Product created pursuant to the Services is not “work made for hire,” Contractor hereby irrevocably assigns to Treasury any and all of its rights, title, and interest in all original Work Product created pursuant to the Services, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Upon Treasury’s reasonable request, Contractor must execute such further documents and instruments necessary to fully vest such rights in the Work Product in Treasury. Contractor forever waives any and all rights relating to original Work Product, excluding Contractor Intellectual Property and Third Party Intellectual Property, as applicable, therein, created pursuant to the Services, including without limitation, any and all rights arising under 17 USC §106A or any other rights of identification of authorship or rights of approval, restriction or limitation on use or subsequent modifications.

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

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

c. Contractor Intellectual Property. In the event that Work Product is Contractor Intellectual Property, Contractor hereby grants to Treasury an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Contractor Intellectual Property, and to authorize others to do the same on Treasury’s behalf.

d. Third Party Works. In the event that Work Product is Third Party Intellectual Property, Contractor must secure on the Treasury’s behalf and in the name of the Treasury, 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 to authorize others to do the same on Treasury’s behalf.

e. Loss of Data. In the event of any act, error or omission, negligence, misconduct, or breach that compromises or is suspected to compromise the security, confidentiality, or integrity of Treasury Data or the physical, technical, administrative, or organizational safeguards put in place by Contractor that relate to the protection of the security, confidentiality, or integrity of Treasury Data, Contractor must, as applicable:

i. Notify the State as soon as practicable but no later than 24 hours after becoming aware of such occurrence;

ii. Cooperate with the State in investigating the occurrence, including making available all relevant records, logs, files, data reporting, and other materials required to comply with applicable law or as otherwise required by the State;

iii. In the case of personally identifiable information (PII) or federal taxpayer information (FTI), at the State’s sole election, (i) notify the individuals whose PII or FTI is affected as soon as practicable but no later than is required to comply with applicable law, or, in the absence of any legally required notification period, within five (5) calendar days of the occurrence; or (ii) reimburse the State for any costs in notifying the affected individuals;

iv. Perform or take any other actions required to comply with applicable law as a result of the occurrence;

v. Pay for any costs associated with the occurrence, including but not limited to any costs incurred by the State in investigating and resolving the occurrence, including reasonable attorney’s fees associated with such investigation and resolution;

vi. Without limiting Contractor’s obligations of indemnification as further described in this Contract, indemnify, defend, and hold harmless the State for any and all claims, including reasonable attorneys’ fees, costs, and incidental expenses, which may be suffered by, accrued against, charged to, or recoverable from the State in connection with the occurrence;

vii. Be responsible for recreating lost Treasury Data in the manner and on the schedule set by the State without charge to the State; and

viii. Provide to the State a detailed plan within ten (10) calendar days of the occurrence describing the measures Contractor will undertake to prevent a future occurrence. Notification to affected individuals, as described above, must comply with applicable law, be written in plain language, not be tangentially used for any solicitation purposes, and contain, at a minimum: name and contact information of Contractor’s representative; a description of the nature of the loss; a list of the types of data involved; the known or approximate date of the loss; how such loss may affect the affected individual; what steps Contractor has taken to protect the affected individual; what steps the affected individual can take to protect himself or herself; contact information for major credit card reporting agencies; and, information regarding the credit and identity monitoring services to be provided by Contractor. The State will have the option to review and approve any notification sent to affected individuals prior to its delivery.

11. Indemnity.

a. GENERAL INDEMNITY. CONTRACTOR MUST DEFEND, SAVE, HOLD HARMLESS, AND INDEMNIFY THE STATE OF OREGON AND TREASURY AND THEIR OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ALL CLAIMS, SUITS, ACTIONS, LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES OF ANY NATURE WHATSOEVER, INCLUDING ATTORNEYS FEES, RESULTING FROM, ARISING OUT OF, OR RELATING TO THE ACTIVITIES OF CONTRACTOR OR ITS OFFICERS, EMPLOYEES, SUBCONTRACTORS, OR AGENTS UNDER THIS CONTRACT.

b. INDEMNITY FOR INFRINGEMENT CLAIMS. WITHOUT LIMITING THE GENERALITY OF SECTION 11.a, CONTRACTOR EXPRESSLY AGREES TO DEFEND, INDEMNIFY, AND HOLD TREASURY, THE STATE OF OREGON AND THEIR AGENCIES, SUBDIVISIONS, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES HARMLESS FROM ANY AND ALL CLAIMS, SUITS, ACTIONS, LOSSES, LIABILITIES, COSTS, EXPENSES, INCLUDING ATTORNEYS FEES, AND DAMAGES ARISING OUT OF OR RELATED TO ANY CLAIMS THAT THE SERVICES, THE WORK PRODUCT OR ANY OTHER TANGIBLE OR INTANGIBLE ITEMS DELIVERED TO TREASURY BY CONTRACTOR THAT MAY BE THE SUBJECT OF PROTECTION UNDER ANY STATE OR FEDERAL INTELLECTUAL PROPERTY LAW OR DOCTRINE, OR THE TREASURY’S USE THEREOF, INFRINGES ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK, TRADE DRESS, MASK WORK, UTILITY DESIGN, OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY; PROVIDED, THAT STATE MUST PROVIDE CONTRACTOR WITH PROMPT WRITTEN NOTICE OF ANY INFRINGEMENT CLAIM.

c. CONTROL OF DEFENSE AND SETTLEMENT. CONTRACTOR WILL HAVE CONTROL OF THE DEFENSE AND SETTLEMENT OF ANY CLAIM THAT IS SUBJECT TO SECTIONS 11.a OR 11.b; HOWEVER, NEITHER CONTRACTOR NOR ANY ATTORNEY ENGAGED BY CONTRACTOR MAY 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 FIRST RECEIVING FROM THE OREGON ATTORNEY GENERAL, IN A FORM AND MANNER DETERMINED APPROPRIATE BY THE ATTORNEY GENERAL, AUTHORITY TO ACT AS LEGAL COUNSEL FOR THE STATE OF OREGON, NOR MAY 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, OR 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.

12. Insurance. Contractor must provide and maintain insurance as indicated on Exhibit B, attached hereto and by this reference made a part hereof.

13. Default; Remedies; Termination.

a. Default by Contractor. Contractor will be in default under this Contract if:

i. Contractor institutes or has instituted against it insolvency, receivership or bankruptcy proceedings, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis; or

ii. Contractor no longer holds a license or certificate that is required for Contractor to perform its obligations under the Contract and Contractor has not obtained such license or certificate within thirty (30) calendar days after Treasury’s notice or such longer period as Treasury may specify in such notice; or

iii. Contractor commits any material breach or default of any covenant, warranty, obligation or agreement under this Contract, fails to perform the Services or provide any deliverables or Work Product under this Contract within the time specified herein or any extension thereof, and such breach, default or failure is not cured within thirty (30) calendar days after Treasury's notice, or such longer period as Treasury may specify in such notice; or

iv. Contractor’s representations and covenants regarding compliance with pay equity provisions or “Tax Laws” as set forth in Section 15 and Exhibit C of this Contract are false or become false because Contractor fails to comply with any such provisions during the term of this Contract; or

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

b. Treasury’s Remedies for Contractor’s Default. In the event Contractor is in default under Section 13.a, Treasury may, at its option, pursue any or all of the remedies available to it under this Contract and at law or in equity, including, but not limited to:

i. Termination of this Contract under Sections 13.e (ii) or 13.e(iii);

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

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

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

v. Any other remedies available at law or equity.

These remedies are cumulative to the extent the remedies are not inconsistent, and Treasury may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever. If a court determines that Contractor was not in default under Sections 13.a, then Contractor will be entitled to the same remedies as if this Contract was terminated pursuant to Section 13.e (i).

c. Default by Treasury. Treasury will be in default under this Contract if:

i. Treasury fails to pay Contractor any amount pursuant to the terms of this Contract, and Treasury fails to cure such failure within thirty (30) calendar days after Contractor’s notice or such longer period as Contractor may specify in such notice; or

ii. Treasury commits any material breach or default of any covenant, warranty, or obligation under this Contract, and such breach or default is not cured within thirty (30) calendar days after Contractor’s notice or such longer period as Contractor may specify in such notice.

d. Contractor’s Remedies for Treasury’s Default. In the event Treasury terminates the Contract under Section 13.e(i) or (ii), or in the event Treasury is in default under Section 13.c and whether or not Contractor elects to exercise its right to terminate the Contract under Section 13.e(iv), Contractor’s sole remedy will be (a) with respect to Services compensable on an hourly basis, a claim for unpaid invoices, hours worked within any limits set forth in this Contract but not yet billed, authorized expenses incurred and interest within the limits permitted under ORS 293.462, and (b) with respect to deliverable-based Services, a claim for the sum designated for completing the deliverable multiplied by the percentage of Services completed and accepted by Treasury, less previous amounts paid and any claim(s) that Treasury has against Contractor. In no event will Treasury be liable to Contractor for any expenses related to termination of this Contract or for anticipated profits. If previous amounts paid to Contractor exceed the amount due to Contractor under this Section 13.d, Contractor must pay immediately any excess to Treasury upon written demand provided in accordance with Section 20.

e. Termination.

i. Parties' Right to Terminate for Convenience. This Contract may be terminated at any time by mutual written consent of the parties.

ii. Treasury's Right to Terminate for Convenience. Treasury may, at its sole discretion, terminate this Contract, in whole or in part:

A. Upon 10 calendar days’ prior written notice by Treasury to Contractor;

B. Immediately if Treasury fails to receive funding, appropriations, limitations, allotments or other expenditure authority at levels sufficient to pay for the Services, any deliverables or Work Products; or

C. Immediately if federal or state laws, regulations, or guidelines are modified or interpreted in such a way that the Treasury’s purchase of the Services, any deliverables or Work Products under this Contract is prohibited or Treasury is prohibited from paying for such Services, deliverables or Work Products from the planned funding source.

iii. Treasury’s Right to Terminate for Cause. In addition to any other rights and remedies Treasury may have under this Contract, Treasury may terminate this Contract immediately upon written notice by Treasury to Contractor, or at such later date as Treasury may establish in such notice, or upon expiration of the time period and with such notice as provided in Section 13.e (iii) (B) through (D) below, upon the occurrence of any of the following events:

A. Contractor is in default under Section 13.a (i) because Contractor institutes or has instituted against it insolvency, receivership or bankruptcy proceedings, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis;

B. Contractor is in default under Section 13.a(ii) because Contractor no longer holds a license or certificate that is required for it to perform services under the Contract and Contractor has not obtained such license or certificate within thirty (30) calendar days after Treasury’s notice or such longer period as Treasury may specify in such notice; or

C. Contractor is in default under Section 13.a(iii) because Contractor commits any material breach or default of any covenant, warranty, obligation or agreement under this Contract, fails to perform the Services or provide any required deliverables or Work Product under this Contract within the time specified herein or any extension thereof, or so fails to pursue the Services, deliverables or Work Product as to endanger Contractor's performance under this Contract in accordance with its terms, and such breach, default or failure is not cured within thirty (30) calendar days after Treasury's notice, or such longer period as Treasury may specify in such notice; or

D. Contractor is in default under Section 13.a(iv) or (v) for failure to pay taxes or other liquidated and delinquent debt owed to the State of Oregon; or

E. Contractor’s failure to comply with Section 15.c constitutes a breach that entitles Treasury to terminate this Contract for cause.

iv. Contractor’s Right to Terminate for Cause. Contractor may terminate this Contract with such written notice to Treasury as provided in Sections 13.e (iv) (A) and (B) below, or at such later date as Contractor may establish in such notice, upon the occurrence of the following events:

A. Treasury is in default under Section 13.c(i) because Treasury fails to pay Contractor any amount pursuant to the terms of this Contract, and Treasury fails to cure such failure within thirty (30) calendar days after Contractor’s notice or such longer period as Contractor may specify in such notice; or

B. Treasury is in default under Section 13.c (ii) because Treasury commits any material breach or default of any covenant, warranty, or obligation under this Contract, fails to perform its commitments hereunder within the time specified or any extension thereof, and Treasury fails to cure such failure within thirty (30) calendar days after Contractor’s notice or such longer period as Contractor may specify in such notice.

v. Return of Property. Upon termination of this Contract for any reason whatsoever, Contractor must immediately deliver to Treasury all of Treasury’s property (including without limitation any deliverables or Work Products for which Treasury has made payment in whole or in part) that is in the possession or under the control of Contractor in whatever stage of development and form of recordation such Treasury property is expressed or embodied at that time. Upon receiving a notice of termination of this Contract, Contractor must immediately cease all activities under this Contract, unless Treasury expressly directs otherwise in such notice of termination. Upon Treasury's request, Contractor must surrender to anyone Treasury designates, all documents, research or objects or other tangible things needed to complete the Services, any deliverables and any Work Product.

f. Contractor's Tender upon Termination. Upon receiving a notice of termination of this Contract, Contractor must immediately cease all activities under this Contract, unless Treasury expressly directs otherwise in such notice of termination. Upon termination of this Contract, Contractor must deliver to Treasury’s Contract Administrator all documents, information, works-in-progress and other property that are or would be deliverables had the Contract been completed. Upon request from Treasury’s Contract Administrator, Contractor must surrender to anyone the Contract Administrator designates, all documents, research or objects or other tangible things needed to complete the deliverables, Services or any Work Product.

14. Records Maintenance; Access. Contractor must maintain all fiscal records relating to this Contract in accordance with generally accepted accounting principles. In addition, Contractor must maintain any other records pertinent to this Contract in such a manner as to clearly document Contractor's performance. Contractor acknowledges and agrees that Treasury and the Oregon Secretary of State's Office and their duly authorized representatives must have access, upon reasonable notice and during Contractor’s business hours, to such fiscal records and other books, documents, papers, plans and writings of Contractor that are pertinent to this Contract to perform examinations and audits and make excerpts and transcripts. Unless instructed otherwise by Treasury’s Contract Administrator, Contractor must retain and keep accessible all such fiscal records, books, documents, papers, plans, and writings for six (6) years, or such longer period as may be required by applicable law, following final payment and termination of this Contract, or until the conclusion of any audit, controversy or litigation arising out of or related to this Contract, whichever date is later. Treasury will provide notice to Contractor not less than thirty {---30---} days before the end of that year as to the third-party storage provider to which the Treasury, at its cost and expense, will have Contractor deliver such records in electronic form. Upon written instruction from Treasury’s Contract Administrator, Contractor must not retain, but will return to Treasury or destroy, any of the foregoing materials specifically designated by the Contract Administrator for return or destruction.

15. Compliance with Applicable Law.

a. Compliance with Law Generally. Contractor and the Treasury must comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to each of them and the Contract. Treasury’s performance under the Contract 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.

b. Tax Compliance. As set forth on Exhibit C, Contractor has complied with the tax laws of this state and the applicable tax laws of any political subdivision of this state. Contractor must, throughout the duration of this Contract and any extensions, 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 305.620 and ORS chapters 316, 317, and 318; (ii) Any tax provisions imposed by a political subdivision of this state that applied to Contractor, to Contractor’s property, operations, receipts, or income, or to Contractor’s performance of or compensation for any work performed by Contractor; (iii) Any tax provisions imposed by a political subdivision of this state that applied to Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor; 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 15.b or Contractor’s certifications set forth in Exhibit C constitutes a material breach of this Contract. In that event, this Contract will be reported to the Oregon Department of Revenue. The 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 the Contractor’s compensation under this Contract or (ii) exercising a right of setoff against Contractor’s compensation under this Contract 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.

c. 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 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.

16. Foreign Contractor. If Contractor is not domiciled in or registered to do business in the State of Oregon, Contractor must 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 must demonstrate its legal capacity to perform the Services under this Contract in the State of Oregon prior to entering into this Contract.

17. Force Majeure. Neither Treasury nor Contractor will be held responsible for delay or default caused by fire, riot, acts of God, terrorist acts, or other acts of political sabotage, or war where such cause was beyond the reasonable control of Treasury or Contractor, respectively. Contractor must, however, make reasonable efforts to remove or eliminate such a cause of delay or default and must, upon the cessation of the cause, diligently pursue performance of its obligations under this Contract.

18. Survival. All rights and obligations will cease upon termination or expiration of this Contract, except for the rights and obligations set forth in Sections 1, 7, 9, 10, 11, 12, 13, 14, 15, 18, 23, 24, and 26, and any other rights and obligations that by their nature survive termination or expiration.

19. Time is of the Essence. Contractor agrees that time is of the essence under this Contract.

20. Notice. Except as otherwise expressly provided in this Contract, any communications between the parties hereto or notices to be given hereunder must be given in writing by personal delivery, facsimile, electronic mail or mailing the same, postage prepaid, to Contractor or Treasury at the address, number or e-mail address set forth on the signature page of this Contract, or to such other addresses or numbers as either party may hereafter indicate pursuant to this Section 20. Any communication or notice so addressed and mailed will be deemed to be given five (5) days after mailing. Any communication or notice delivered by facsimile or electronic mail will be deemed to be given when confirmation of receipt of the transmission is generated by the transmitting machine, either by return email or by demonstrating through other technological means that the email has been delivered. To be effective against Treasury, such facsimile or electronic transmission must be confirmed by telephone notice to the Contract Administrator. Any communication or notice by personal delivery will be deemed to be given when actually delivered.

21. Severability. The parties agree that if any term or provision of this Contract is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms and provisions will not be affected, and the rights and obligations of the parties must be construed and enforced as if the Contract did not contain the particular term or provision held to be invalid.

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

23. Governing Law; Venue; Consent to Jurisdiction. This Contract must be governed by and construed and enforced in accordance with the laws of the State of Oregon without regard to principles of conflicts of law. Any claim, action, suit or proceeding (collectively, "Claim") between Treasury (or any other agency or department of the State of Oregon) and Contractor that arises from or relates to this Contract 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. In no event may this section be construed as a waiver by the State of Oregon of any form of defense or immunity, whether it is sovereign immunity, governmental immunity, immunity based on the Eleventh Amendment to the Constitution of the United States or otherwise, from any Claim or from the jurisdiction of any court. CONTRACTOR, BY EXECUTION OF THIS CONTRACT, HEREBY CONSENTS TO THE PERSONAL JURISDICTION OF SUCH COURTS.

24. Confidentiality.

a. At all times during the term of this Contract and thereafter, Contractor must maintain strict confidentiality with respect to any and all information of a confidential, proprietary or secret nature that Contractor, in the course of performance of the Services, has in its possession, including its own such information, as well as including, but not limited to, relating to the State of Oregon’s financial, accounting, investment, and information technology matters, and the security measures or mechanisms used to protect such information (“Confidential Information”). All such information is confidential, and Contractor must hold such information using at least the same degree of care as it uses in maintaining the confidentiality of its own information of a similar nature but in no event less than reasonable care. Unless permitted by the Treasury in writing or required by law, Contractor may not disclose any Confidential Information, directly or indirectly, to any party, its counsel or any representatives, or use it in any way, except as provided in this Contract or as required to perform the Services. Any disclosure of Confidential Information contrary to this provision will constitute a material breach of this Contract and a violation of the standard of care to be exercised by Contractor hereunder.

b. The foregoing restrictions do not apply to Confidential Information that (i) was lawfully in the possession of Contractor without an obligation of confidentiality prior to disclosure of the information by Treasury, (ii) was, or at any time becomes, available in the public domain other than through a violation of this Contract, (iii) was independently developed by Contractor; or (iv) is disclosed pursuant to an order to do so by a court issued subpoena or similar court order by a court of competent jurisdiction, provided that Contractor gives reasonable notice to Treasury of such order prior to disclosure to the extent feasible.

25. Non-Disclosure Agreements. The Contract Administrator must approve access to any information technology or network of Treasury before any Contractor personnel are granted access to the Treasury’s network or any single system therein. The Contract Administrator may condition approval of access to the network upon execution of a Non-Disclosure Contract in a form satisfactory to the Contract Administrator.

26. Merger Clause; Waiver. This Contract and all attached exhibits constitute the entire agreement between the parties on the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, or representations, oral or written, not specified herein regarding this Contract. No waiver, consent, modification or change of terms of this Contract may bind all parties unless in writing and signed by both parties and all necessary State approvals have been obtained. Such waiver, consent, modification or change, if made, will be effective only in the specific instance and for the specific purpose given. The failure of either party to enforce any provision of this Contract does not constitute a waiver by such party of that or any other provision.

27. Oregon False Claims Act.

a. Contractor acknowledges that the Oregon False Claims Act, ORS 180.750 to 180.785, applies to any action or conduct by Contractor pertaining to this Contract that constitutes a “claim” (as defined by ORS 180.750(1)). By its execution of this Contract, Contractor certifies the truthfulness, completeness, and accuracy of any statement or claim it has made, it makes, it may make, or causes to be made that pertains to this Contract. In addition to other liabilities 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.

b. Without limiting the generality of the foregoing, Contractor represents and warrants that:

i. Contractor’s representations, certifications, and other undertakings in this Contract are not False Claims Act Violations; and

ii. None of Contractor’s performance under this Contract, including but not limited to any invoices, reports, or other deliverables in connection with its performance of this Contract, will constitute False Claims Act Violations.

c. For purposes of this Section 27. a “False Claims Act Violation” means a false claim as defined by ORS 180.750(2) or anything prohibited by ORS 180.755.

d. Contractor must immediately report in writing, to Treasury, any credible evidence that a principal, employee, agent, subcontractor, sub grantee, or other person has made a false claim or committed a prohibited act under the Oregon False Claims Act, or has committed a criminal or civil violation of laws pertaining to fraud, bribery, gratuity, conflict of interest, or similar misconduct in connection with this Contract or any moneys paid under this Contract.

e. Contractor understands and agrees that any remedy that may be available under the Oregon False Claims Act will be in addition to any other remedy available to the State of Oregon or Treasury under any other provision of law, or this Contract.

28. Amendments.

Treasury may amend this Contract to the extent permitted by applicable statutes and administrative rules to, among other revisions, extend its term or modify the compensation, to delete Services or to add any Services that are within the scope of work, if any, or any combination of the foregoing. The parties may not waive, supplement or amend the terms of the Contract, in any manner whatsoever, except by written amendment signed by all parties, for which all necessary State of Oregon approvals have been obtained.

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By their signatures below, the parties agree to be bound by and will comply with, all requirements, terms, and conditions contained in this Contract {---Contract ID---}.

Contractor’s Signature

Treasury’s Signature

{---City---}, {---State/Province---} {---Postal Code---}

Salem, OR 97302

Contractor’s Authorized Representative

Treasury Representative

Title

Title

Date

Date

Signature

Signature

Department of Justice Approval

Approved by (Signature)

Date

Attachment A Sample Contract

Attachment A: Sample Contract 170-4506-26

EXHIBIT A

STATEMENT OF WORK [SUBJECT TO NEGOTIATION BETWEEN TREASURY AND CONTRACTOR]

Part I. General Information.

Part II. Work; Acceptance Criteria; Deliverables and Delivery Schedule.

A. Deliverables

B. Service Levels

Part III. Special Considerations.

Part IV. Additional Optional Services.

Part V. Payment Provisions.

A. The compensation for Services accomplished under this Contract and for authorized travel reimbursement to Contractor may not exceed a maximum of [$XX.XX].

Contractor agrees to perform all Services based on the pricing listed above in Part II and Part IV.

B. Payments will be made to Contractor over the period of the Contract upon receipt of the Contractor’s detailed invoice. Each detailed invoice must be based on the prices set forth in this Contract. All invoices and other forms of claims for payment must be submitted by email no more than once per month to ost.accounting@ost.state.or.us Failure to present claims in proper form within 60 days after the end of the month in which the work is performed will constitute a waiver on the part of Contractor to present such claim thereafter or to receive payment therefore. Any overdue payments by Treasury for an approved billing statement will be paid in accordance with ORS 293.462.

C. Contractor must complete all Services, deliverables or Work Product as defined in this Exhibit A to Treasury’s satisfaction. If Contractor expends all time allowed under the Contract and fees incurred have reached the maximum compensation allowed under Section 3(a) of the Contract, but the Services are not complete or are not satisfactory, Contractor must complete the Services to Treasury’s satisfaction without further compensation. Treasury may, by written amendment to the Contract, increase the maximum compensation payable under this Contract for any substantial, approved increase in the scope, character, schedule or complexity of services as outlined in this Exhibit A. Contractor may petition Treasury for such an amendment, or the Treasury may initiate the action on its own. Any amendment must receive all necessary State approvals prior to commencement of any Services performed under the amendment.

D. Treasury will make final payment of any balance due Contractor promptly upon verification of completion and acceptance of Services, deliverables or Work Product by Treasury. Treasury, or its duly authorized agents, may audit Contractor’s records prior to payment of the final billing.

E. If Contractor requests that payments be directly deposited in its bank account, the Contractor must submit a correct and completed Direct Deposit Authorization Form to Treasury. The form is available on the internet at: https://www.oregon.gov/das/Financial/AcctgSys/Documents/ACH_Enrollment_Form.pdf.

F. Funds Available and Authorized; Payments. Contractor understands and agrees that Treasury’s payment of amounts under this Contract is contingent on Treasury receiving funding, appropriations, limitations, allotments or other expenditure authority at levels sufficient to allow Treasury, in the exercise of its reasonable administrative discretion, to make payments under this Contract.

G. The Contractor must submit a correct and completed W-9 Request for Taxpayer Identification Number and Certification Form to Treasury. The form is avialable on the internet at: https://www.irs.gov/pub/irs-pdf/fw9.pdf.

Part VI. Travel and Other Expenses.

Treasury will not reimburse Contractor for mileage, meals, or parking expenses.

EXHIBIT B

Insurance Requirements Contractor, at its own expense, must have the following insurance policies and in the amounts required at all times while performing under this Contract. For any claims-made based coverage the Contractor must purchase an Extended Reporting Period Endorsement (i.e., “tail coverage”) period of at least 24 months as described below.

Coverage must be primary and non-contributory with any other insurance and self-insurance, with the exception of Professional Liability and Workers’ Compensation. Contractor must pay all deductibles, self-insured retention and self-insurance, if any.

The company from whom the Contractor purchases insurance coverage must be authorized to conduct business and transact the business of insurance in the State of Oregon.