RFP 25-005 EAMS - Appendix B - Master Software as a Service Contract.pdf

Salem Area Mass Transit District (SAMTD)

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APPENDIX B

DRAFT SOFTWARE AS A SERVICE AGREEMENT

SAMTD intends for this Master Software as a Service Agreement to be the sole and lead contract for this engagement. As a Federally funded agreement, the terms outlined in Appendix C Federal Terms and Conditions are non-negotiable. Similarly, any changes or additions to Appendix A or B that impact Federal terms or SAMTD’s rights will not be reviewed or approved.

Refer to RFP 25-005 Part 3.D “Questions, Clarifications, Request for Deviation, Substitution or Approved Equals” for instructions on an exception to Appendices A, B, or C. Unless a request is accepted by SAMTD in writing, all terms and conditions of the RFP and final contract documents shall be binding and enforceable against the successful proposer.

Exhibits A-1 and B-1 included herein will be updated according to the final solution awarded and the agreed upon final scope.

This Master Software as a Service (SaaS) Agreement, including all referenced attachments, (collectively, the “AGREEMENT”) is effective (the “EFFECTIVE DATE”) between _______________., (“PROVIDER”), an _______ State Corporation and having its principal place of business at _________________, and SALEM AREA MASS TRANSIT DISTRICT, (“CLIENT”) a Public Transportation District and having its principal place of business at 555 Court Street NE, Suite 5230, Salem, OR 97301 PROVIDER and CLIENT may be referred to in this AGREEMENT individually as a “PARTY” and collectively as the “PARTIES.” The PARTIES agree that the following terms and conditions shall apply to the Subscription Services and any Non-subscription Services provided by PROVIDER under this AGREEMENT.

1. INDUCEMENTS AND OBJECTIVES

CLIENT wants to use hosted third-party “software as a service” to meet some of its information technology needs;

PROVIDER represents that it has knowledge, experience and expertise in the business of successfully providing the Subscription and Non-subscription Services as called for in Request for Proposal 25-005 (RFP 25-005) and all associated documents;

Based upon and in reliance on PROVIDER’S represented knowledge, experience and expertise relating to the Subscription and Non-subscription Services, CLIENT has selected PROVIDER to manage and provide it Subscription and Non-subscription Services;

PROVIDER acknowledges that the successful provision of the Subscription and Non-subscription Services, and the security and availability of CLIENT Data are critical to the successful operation of CLIENT’S business; and

PROVIDER agrees to provide the Subscription and Non-subscription Services to CLIENT, RFP 25-005 EAMS - Appendix B - Master Software as a Service Contract Page 2 of 39 subject to the terms and conditions set forth in this AGREEMENT.

IN CONSIDERATION of the foregoing and of the mutual promises and covenants contained in this AGREEMENT and of other good and valuable consideration, the receipt and sufficiency of which are acknowledge, the PARTIES agree as follows:

2. DEFINITIONS

Each term in quotes below, when used in this AGREEMENT (including any SaaS Subscription Schedules, Statements of Work and any other referenced attachments), shall have the meaning specified in this Paragraph.

2.1. “Addendum” means any written document executed by both PARTIES that modifies the terms of the SaaS Subscription Schedule or a Statement of Work.

2.2. “Affiliate” means, including but not limited to, (i) CLIENT’S parent, subsidiaries, affiliates, partnerships, joint ventures, franchisees, assigns, business partners, , sub- Providers and consultants, controlling, controlled by or under common control of CLIENT, as they may change from time to time and (ii) Users, as they may change from time to time.

2.3. “Amendment” means any written document executed by both PARTIES that modifies the terms of this AGREEMENT, including referenced attachments, but excluding SaaS Subscription Schedules or a Statements of Work.

2.4. “Availability” or “Service Availability” means the allowable downtime during any month and is based on CLIENT’s ability to log into the PROVIDER Service during a calendar month and is calculated in using the following formula:

x = (y - z) / y * 100 Where,

• “x” is the Availability of the Service during the applicable Month;

• “y” is the total number of hours in the applicable Month minus the number of hours during the applicable Month that CLIENT is unable to utilize the service because of (a) regularly scheduled Service maintenance windows and for times in which Customer has been notified in writing (including e-mail) by PROVIDER in advance; (b) a Force Majeure Occurrence, as defined herein; (c) non-performance of hardware, software, ISP connections, and other equipment that is not provided or authorized by PROVIDER for use with PROVIDER Services (except as such non-performance is directly caused by PROVIDER).; (d) any time required to set up and transfer over to a Disaster Recovery Environment, if applicable.

• “z” is the number of hours in the applicable Month during which CLIENT is unable to log into the Services (other than for reasons set forth in the definition of “y” above); provided PROVIDER has been notified or is otherwise aware (or reasonably should be aware) of CLIENTS’s inability to utilize the Service.

2.5. “Change Order Request” means a written document provided by CLIENT to PROVIDER requesting changes to PROVIDER’S obligations under this AGREEMENT.

2.6. “Change Order Response” means the written document provided to CLIENT by PROVIDER in response to any CLIENT Change Order Request.

2.7. “CLIENT Data” means all data created by or in any way originated with CLIENT, and all data that is the output of computer processing of or other electronic manipulation of any data that was created by or in any way originated with CLIENT, whether such data or

RFP 25-005 EAMS - Appendix B - Master Software as a Service Contract Page 3 of 39 output is stored on CLIENT’S hardware, PROVIDER’S hardware or exists in any system owned, maintained or otherwise controlled by CLIENT or by PROVIDER.

2.8. “Confidential Information” means all written or oral information, disclosed by either PARTY to the other, related to the operations of either PARTY or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential, subject to CLIENT’S obligations set out under Paragraph 19.

2.9. “Desktop Specification” means PROVIDER’S recommended minimum technical specifications required to access and utilize the SaaS Software Applications specified on a SaaS Subscription Schedule and in accordance with the SaaS Subscription Schedule’s service levels.

2.10. “Downtime” means a period of time that the PROVIDER Service is inaccessible or the provided service does not perform its primary function. Downtime does not include any scheduled maintenance.

2.11. “Expiration Date” has the meaning set forth in Paragraph 1.

2.12. “Hardware” means any hardware required for CLIENT to utilize the PROVIDER Service. Unless agreed upon in writing, CLIENT shall provide any required hardware such as, but not limited to workstations, printers, network hardware, firewall, telecommunications equipment, communication lines and any associated internet services for connection from CLIENT site to PROVIDER Service.

2.13. “Illicit Code” has the meaning set forth in Paragraph 11.4

2.14. “Maintenance” “Maintenance Window”, “Scheduled Maintenance”, “Schedule Downtime”, “Planned

Maintenance” means the time attributable to:

(a) regularly scheduled maintenance windows in which CLIENT has been notified in writing (including e-mail) by PROVIDER in advance;

(b) a Force Majeure Occurrence, as defined herein;

(c) non-performance of hardware, software, ISP connections, and other equipment that is not provided or authorized by PROVIDER for use with PROVIDER Services (except as such non-performance is directly caused by PROVIDER).

2.15. "Month” means a calendar month

2.16. “Non-subscription Services” means the services provided to CLIENT by PROVIDER under this

AGREEMENT that are not included in the definition of Subscription Services; Non-subscription Services shall include, but not be limited to, consulting, implementation, customization and other services provided to CLIENT by PROVIDER under this AGREEMENT, together with all documentation provided by or otherwise required of PROVIDER for any of the consulting, implementation, customization or other services it provides.

2.17. “Program Manager” has the meaning set forth in Paragraph 12.1.

2.18. “PROVIDER Information” means all techniques, algorithms and methods or rights thereto owned by or licensed to PROVIDER during the term of this AGREEMENT and employed by PROVIDER in connection with the Subscription Services and the Non-subscription Services provided to CLIENT.

2.19. “Provider Software” means software that was developed by or licensed to PROVIDER independent of this AGREEMENT and which PROVIDER utilizes to provide the Subscription Services or the Non-subscription Services.

2.20. “SaaS Software Application” and “SaaS Software” mean the computer software listed on a SaaS Subscription Schedule to which PROVIDER has granted CLIENT access and use as part of the Subscription. This includes any customization, other derivative works, upgrades, releases, fixes, patches, etc. related to the software that PROVIDER develops or deploys during the term of this AGREEMENT, together with all the software that PROVIDER develops or deploys

RFP 25-005 EAMS - Appendix B - Master Software as a Service Contract Page 4 of 39 during the term of this AGREEMENT, together with all documentation provided by or otherwise required of PROVIDER for any of the software, customization, other derivative works, upgrades, releases, fixes, patches, etc.

2.21. “SaaS Subscription Schedule” means the document, executed by both PARTIES that sets out the PARTIES’ rights and obligations with respect to CLIENT’S access to and use of the SaaS Software Application.

2.22. “Service Levels” means the performance specifications for work performed by PROVIDER under a SaaS Subscription Schedule or Statement of Work.

2.23. “Service Problem” means any disruption in PROVIDER’s ability to deliver any Subscription Services, Non-subscription Services, or any other services called for under a SaaS Subscription Schedule or any Statement of Work.

2.24. “Statement of Work” means a document executed by both parties that sets out Non-subscription Services to be provided by PROVIDER, together with other obligations and responsibilities of each PARTY related to such services, where such services and related obligations and responsibilities are not specified or otherwise provided for in any SaaS Subscription Schedule.

2.25. “Subscription Services” means CLIENT’S access to and use of and PROVIDER’S provision of the SaaS Software Applications and other services listed on a SaaS Subscription Schedule and in accordance with the terms and conditions set forth in the SaaS Subscription Schedule.

2.26. “Third Party” means any natural person or legal entity other than PROVIDER and

CLIENT.

2.27. “Transition Date” means the date upon which it is established to CLIENT’S satisfaction that the SaaS Software Application is stable enough to support CLIENT’S production environment.

2.28. “User” means CLIENT’S employees, agents, consultants, outsourcing companies, sub- Providers and others who are authorized by CLIENT to access and use the SaaS Software Applications and any part or portion of the Subscription Services or Non-subscription Services in the performance of his/her/its duties for CLIENT.

2.29. “User Information” means all information directly or indirectly obtained from Users accessing the SaaS Software Applications where such information is obtained by PROVIDER or by any of its employees, representatives, agents or any Third Parties having privity with PROVIDER or who are under PROVIDER’S supervision or control.

2.30. “Work Product” means, except for the PROVIDER Information and Provider Software, all deliverables and other materials, products or modifications developed or prepared for CLIENT by PROVIDER under this AGREEMENT, including without limitation, any integration software or other software, all data, program images and text viewable on the Internet, any HTML code relating thereto, or any program code, including program code created, developed or prepared by PROVIDER under or in support of the performance of its obligations under this AGREEMENT, including manuals, training materials and documentation.

3. ORDER OF PRECEDENCE

The Agreement documents in order of precedence, and the terms and conditions that will govern this Agreement, are set out herein, and in the following documents which are incorporated by reference:

A. This AGREEMENT

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B. Request for Proposal 25-005 Appendix C, Federal Terms and Conditions C. Request for Proposal 25-005 Appendix A, General Terms and Conditions D. PROVIDER Pricing Exhibit 9, submitted ___________ E. Request for Proposal 25-005 including

• Addenda 1, issued ________ F. PROVIDER response to Request for Proposal 25-005, including all completed Exhibits, submitted ________

In the event of a conflict between the terms of two (2) or more Contract Amendment, the terms of the most recent shall prevail.

4. SUBSCRIPTION AND NON-SUBSCRIPTION SERVICES TO BE PROVIDED

4.1. Subscription and Non-subscription Services

PROVIDER shall provide the Non-subscription Services and the Subscription Services as described in this AGREEMENT. As part of the Non-subscription Services and the Subscriptions Services, PROVIDER shall manage the recordation of User Information.

Such User Information shall be treated as CLIENT’S Confidential Information subject to all disclosure obligations required by ORS 192.

4.2 SaaS Subscription Schedules and Statements of Work

4.2.1. SaaS Subscription Schedules

From time to time, the PARTIES may execute additional SaaS Subscriptions Schedules to account for any change in license amounts. Each will be uniquely numbered, in substantially the same form as the sample SaaS Subscription Schedule included herein as Exhibit A-1, for CLIENT’S access to and use of the SaaS Software, together with any applicable Service Levels, maintenance, support and any other services. Each SaaS Subscription Schedule shall be attached to, made a part of and subject to this AGREEMENT. The terms and conditions of each SaaS Subscription shall be independent of, and shall have no impact upon, the provisions of any other SaaS Subscription Schedule.

4.2.2. Statement of Work

Any Non-subscription Services, including, but not limited to, consulting, implementation or customization services provided by PROVIDER under this AGREEMENT, shall be are included herein as Exhibit B-1.

5. CHANGE CONTROL

No changes, modifications, or amendments to the AGREEMENT, including these terms and conditions, prices, quantities, Statement of Work, or SaaS Subscription Schedule otherwise negotiated or included as part of the AGREEMENT shall be effective without a mutually executed Amendment in writing executed by the PARTIES. Oral changes or modifications are not permitted nor enforceable and will not be paid for by CLIENT.

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Only CLIENT’S General Manager, or his/her designee, shall have the authority to alter, amend, modify, add to, or waive any Paragraph or condition of the AGREEMENT, Statement of Work, or SaaS Subscription Schedule on behalf of CLIENT.

Any plan or method of work suggested by either party, but not specified or required in writing under the AGREEMENT, SaaS Subscription Schedule, or Statement of Work, or confirmed through written change order, will be performed at the risk and responsibility of the PROVIDER. CLIENT assumes no liability for work performed outside the scope of the Work or a written and executed change order.

Either PARTY may initiate a Change Order Request that is reasonably within the general scope of the AGREEMENT. Such changes might include but are not limited to: the method of operations, requirements for record keeping, and emergency service. CLIENT may add or delete items, services, or locations upon mutual agreement between the parties, provided such items, services, or locations which could reasonably be related to those originally contracted items, services or locations and will not represent a significant increase or decrease in size or scope of the AGREEMENT of which could be construed to be cardinal in nature and not permissible by Federal and State statutes. After receipt of a written Change Order Request from CLIENT, PROVIDER shall submit any request for equitable adjustment in the AGREEMENT Sum and or AGREEMENT Time. Any requested adjustment in the AGREEMENT Sum must be consistent with the original price and relate to the original scope of work. Any request for adjustment of the AGREEMENT Time must be reasonable and demonstrate continued efficiency and productivity. Failure to agree to any adjustment shall be a dispute resolved through the Dispute Resolution clause; however, nothing shall excuse the PROVIDER from proceeding with the Work as agreed.

If the time of PROVIDER’S performance is changed due to an act of Force Majeure or the fault or negligence of CLIENT or anyone for whose acts CLIENT is responsible, PROVIDER shall be entitled to make a request for an equitable adjustment in the AGREEMENT Time. No adjustment in the AGREEMENT Time shall be allowed to the extent PROVIDER’S changed time of performance is due to the fault or negligence of PROVIDER, or anyone for whose acts PROVIDER is responsible.

If it is determined a change is necessary and immediately required to avoid causing undue harm to CLIENT or the public, the Project Manager, or designee may direct PROVIDER to proceed immediately with a Critical Directive Change or a Field Authority Change on a time and materials basis. A price proposal for the change must be submitted to the Project Manager and approved by CLIENT in writing no more than ten (10) business days after the authorization is applicable.

Any Change Order to the AGREEMENT Sum shall constitute final settlement of all claims that PROVIDER may have against CLIENT. Under no circumstances shall CLIENT pay for indirect or consequential costs, including costs of delays, inconvenience, disruption of schedule, or loss of efficiency or productivity, related to any Work whether covered or affected by the Change Order, or related to the events giving rise to the request for equitable adjustment to the AGREEMENT Sum.

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If CLIENT and PROVIDER are unable to reach agreement on the terms of any change in the Work, including any adjustment in the AGREEMENT Sum or AGREEMENT Time, CLIENT shall provide PROVIDER with its final offer. If PROVIDER does not accept CLIENT’S final offer within seven (7) calendar days, or the PARTIES are otherwise unable to reach agreement, PROVIDER’S only remedy shall be to file an appeal through the Dispute Resolution clause.

6. RIGHT TO USE

In accordance with the terms of this AGREEMENT, PROVIDER grants CLIENT an unlimited, transferable, non-exclusive right to access and to use the Subscription Services listed on any SaaS Subscription Schedule and the Non-subscription Services listed on any Statement of Work. CLIENT agrees that its purchase of a subscription to the Subscription Services is neither contingent upon the delivery of any future functionality or future features nor dependent upon any oral comments made by PROVIDER regarding future functionality or future features.

PROVIDER may provide CLIENT with the ability to obtain certain PROVIDER software for use with the Subscription Services through a written Change Order as described in Section 5. herein. If PROVIDER software is licensed to CLIENT under separate agreement, then CLIENT’s use of such software is governed by the separate terms. CLIENT’s right to use any part of the PROVIDER software that is licensed under the separate terms is not restricted in any way by this AGREEMENT.

Unless specifically indicated otherwise herein, CLIENT will use the Subscription Services only for its own, internal business purposes. CLIENT will not: (i) resell, license, rent, transfer, assign, copy, frame, or mirror any part or content of the Subscription Services; (ii) make the Subscription Services available for timesharing or service bureau purposes; or

(iii) otherwise provide access to the Subscription Services to any third-party, except as such third-party access is expressly agreed to in writing between the parties. CLIENT will not, subject to any non-waivable rights CLIENT may enjoy under applicable law, directly or indirectly: (i) reverse engineer, create derivative works, decompile, disassemble, or otherwise attempt to discover, the source code or underlying structure, ideas, know-how or algorithms relevant to the Subscription Services or any software, documentation or data related to the Subscription Services; (ii) interfere with or disrupt the integrity or performance of the Subscription Services or third-party data contained therein; (iii) attempt to gain unauthorized access to the Subscription Services or its related systems or networks;

(iv) modify, translate, or create derivative works based on the Subscription Services; or (v) remove, modify, or obscure, any proprietary notices, markings, or labels. CLIENT may not access or use the Subscription Services or PROVIDER’s content or property (including but not limited to marketing and promotional materials), in order to build, support, or assist a third-party in building or supporting products or services that compete with PROVIDER or its offerings.

PROVIDER may suspend CLIENT’s access to or use of the Subscription Services if it reasonably believes (a) there is a significant threat to the functionality, security, integrity, or availability of the Subscription Services or any content, data, or applications in the Subscription Services; (b) CLIENT is accessing or using the Subscription Services to

RFP 25-005 EAMS - Appendix B - Master Software as a Service Contract Page 8 of 39 commit an illegal act; or (c) there is a violation of the acceptable use or restrictions described herein. When reasonably practicable and lawfully permitted, PROVIDER will provide CLIENT with advance notice of any such suspension. PROVIDER will use all reasonable efforts to re-establish the Subscription Services promptly after it determines that the issue causing the suspension has been resolved.

7. TERM

7.1 Initial Term

The initial SUBSCRIPTION SCHEDULE AGREEMENT term will commence upon the EFFECTIVE DATE and shall continue in effect for a period of five (5) years.

The PARTIES shall not execute any new SaaS Subscription Schedules or Statements of Work after the Expiration Date unless a Force Majeure event applies, or the Initial Term is extended as allowed under this AGREEMENT.

7.2. Extended Terms

CLIENT reserves the right to extend the AGREEMENT upon the same terms and conditions in effect for the expiring term for increments in SAMTD’s best interest that will not exceed a total contract term of fifteen (15) years subject to the parties right to terminate for convenience as outlined in this AGREEMENT.

Any extension will be supported by a corresponding SaaS Subscription Schedule outlining CLIENT’S annual cost.

At least ninety (90) days but no more than one hundred twenty (120) days prior to the expiration of the Initial Term or an Extended Term, PROVIDER shall notify CLIENT in writing of the pending expiration and provide an updates SaaS Subscription Schedule for the next potential term. CLIENT shall confirm in writing at least thirty (30) days prior to expiration of the Initial Term or, if triggered, an Extended Term if it intends to renew for an Extended Term or let this AGREEMENT expire. If CLIENT fails to notify PROVIDER within this timeframe, the AGREEMENT shall expire at the end of the existing term.

If PROVIDER fails to provide CLIENT with written notice at lease ninety (90) days prior to the pending expiration, the Expiration Date, at CLIENT’S option, shall be deemed extended for the number of days necessary for CLIENT to have a full ninety (90) days of advance notice of expiration. During such extensions, all terms of this AGREEMENT shall remain in full force and effect.

8. PAYMENTS

8.1. Compensation

As compensation for the provision of the Subscription Services and the Non-subscription Services, CLIENT shall pay PROVIDER according to the payment schedule agreed to in

RFP 25-005 EAMS - Appendix B - Master Software as a Service Contract Page 9 of 39 the applicable SaaS Subscription Schedule and Statement of Work. Unless otherwise specified in a SaaS Subscription Schedule or a Statement of Work, all payments shall be made in US FUNDS.

The payment schedule will include all costs attributed to CLIENT’S use of the PROVIDER Software, including but not limited to labor, equipment, materials, insurance, overhead, and profit. Taxes and fees are outlined in 8.3 below.

In the event hardware, equipment or other materials are provided, they will be shipped FOB Destination to CLIENT. CLIENT will be responsible for all shipping charges as reflected on a PROVIDER invoice and paid under the terms outlined herein.

8.2. Payment Terms

Unless otherwise specified in the SaaS Subscription Schedule or Statement of Work, PROVIDER shall invoice CLIENT for the Subscription Services and fees, and the Non-subscription Services following the completion by PROVIDER and acceptance or approval by CLIENT of all prerequisites to payment. In cases where payment is based on a calendar event or milestone, payment shall be made upon the occurrence of such calendar event or successful completion of the milestone. CLIENT will also be responsible for any travel expenses, provided those expenses were pre-approved by CLIENT in writing and expenses meet CLIENT travel policy. In either event, CLIENT shall pay PROVIDER thirty (30) days after receipt of a complete, accurate, timely and undisputed invoice. Subscriptions Services and Non-subscription Services rendered by PROVIDER to CLIENT during a month shall be billed no later than the 15th of each month for services and goods supplied the previous month. Invoices shall be generated and submitted in accordance with the terms specified in this AGREEMENT, the applicable SaaS Subscription Schedule or Statement of Work.

CLIENT reserves the right to refuse payment on invoices for work that was completed sixty (60) days prior to the invoice receipt. Invoices must be addressed to Accounts Payable or emailed to accounts.payable@cherriots.org. CLIENT will not be responsible for late payments due to incorrect routing on the part of PROVIDER.

Invoices must contain the following information.

● The contract number;

● The date(s) goods/services were delivered or services were furnished;

● A detailed description of the goods or services furnished;

● Total invoiced amount.

CLIENT will not be responsible for late payments due to missing or incorrect documentation or incorrect invoice routing on the part of the vendor.

8.3. Invoice Disputes

Any invoice disputes must be initiated by CLIENT in good faith and in writing; CLIENT will be entitled to notify PROVIDER of any invoice dispute by the due date of the applicable invoice, after which time the invoice will be deemed to be accepted by CLIENT and will be due and mailto:accounts.payable@cherriots.org.

RFP 25-005 EAMS - Appendix B - Master Software as a Service Contract Page 10 of 39 payable. If CLIENT initiates a dispute about a particular invoice, any undisputed amounts charged on such invoice will continue to be due and payable. PROVIDER and CLIENT agree to use reasonable efforts to address and attempt to resolve any invoice dispute within thirty (30) days after PROVIDER’s receipt of CLIENT’s notice to PROVIDER regarding such dispute. For any undisputed invoiced amount that is not paid when due, PROVIDER reserves the right to charge, and CLIENT agrees to pay, a late payment fee on the unpaid balance from the due date until paid (whether before or after judgment) equal to nine percent (9%) per year as allowed by ORS 82.010. If it is determined that PROVIDER properly charged any amount disputed and withheld by CLIENT, the late fee will be assessed and paid on the disputed, withheld amount.

Except for a good faith dispute as outlined above, if CLIENT fails to make any payment hereunder when due, PROVIDER reserves the right to suspend or interrupt the provision of CLIENT’s access to the Subscription Services (and all related services provided hereunder) until such non-payment is remedied, provided that PROVIDER provides CLIENT with five (5) calendar days advance notice (including via email notification or other form of notification via the Subscription Services) that fees remain outstanding. In such event, PROVIDER will not be precluded from exercising any additional remedies that might be available to it under the terms of this Contract or otherwise.

8.4. Taxes and Fees

The fees paid to PROVIDER under this AGREEMENT are exclusive of any applicable sales, use, or other taxes and fees attributable to the Subscription Services and the Non-subscription Services. CLIENT is not subject to tax; no federal or other taxes (excise, luxury, transportation, sales, etc) shall be included in any invoice submitted.

CLIENT shall have no obligation to pay any such taxes or amounts: (i) that are based upon PROVIDER’S net income; (ii) that are due in whole or in part because of any failure by PROVIDER or its agents to file any tax return or information required by law, rule or regulation; (iii) that are due in whole or part in connection with the perfection of PROVIDER’S security interest in any product.

PROVIDER agrees to pay, and hold CLIENT harmless against any penalty, interest, or additional tax that may be assessed or levied as a result of the failure or delay of PROVIDER or its agents to file any tax return or information required by law, rule or regulation.

ORS 82.010 limits CLIENT’s interest rate on late payments to 9% per annum.

9. INSURANCE

As outlined in Appendix A, General Terms and Conditions, PROVIDER shall procure and maintain for the duration of this AGREEMENT, and as required by any extended reporting period or tail coverage requirements outlined in the AGREEMENT documents, and all warranty periods that apply, insurance against claims for injuries to persons or damage to property that may arise out of or in connection with PROVIDER’S own work including the work of PROVIDER’S agents, representatives, employees, sub-Providers or sub-Consultants.

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10. EXCLUSIONS

Unless tied to PROVIDER negligence or breach of this Agreement, the Service Levels do not apply to any unavailability, suspension or termination of service or performance issues : (i) that result from a suspension of the AGREEMENT; (ii) caused by factors outside of PROVIDER reasonable control, including any force majeure event or Internet access or related problems beyond the physical point at which the private network of PROVIDER data center connects to the public network; (iii) that result from CLIENT equipment, software or other technology and/or third- party equipment, software or other technology (other than Third Party equipment within PROVIDER direct control); (iv) that result from any scheduled maintenance, with at least 48 hours’ notice provided to the CLIENT via email; (v) that result from any routine scheduled maintenance outside of CLIENT’S normal business hours; (vi) arising from PROVIDER’S suspension and termination of CLIENT’S right to use the PROVIDER Software in accordance with the AGREEMENT. If availability is impacted by factors other than those used in PROVIDERS Monthly Uptime Percentage calculation, then PROVIDER may issue a Service Credit considering such factors at our discretion.

11. WARRANTIES

11.1 Performance Warranty

PROVIDER represents and warrants that: (a) Subscription Services provided under any SaaS Subscription Schedule and Non-subscription Services provide under a Statement of Work shall be provided and performed by qualified personnel in a professional, workmanlike manner, consistent with the prevailing standards of the industry; (b) it shall use industry best practices to fulfill its obligations under each SaaS Subscription Schedule and Statement of Work; and (c) any Subscription Services provided under any SaaS Subscription Schedule and Non-subscription Services provided under a Statement of Work shall operate in conformance with the terms of this AGREEMENT and the applicable SaaS Subscription Schedules and Statements of Work.

CLIENT acknowledges that problems with the Internet, equipment, software and network failures, impairments or congestion, or the configuration of CLIENT’s computer systems, may prevent, interrupt, or delay CLIENT’s access to the Subscription Services, or data stored within the Subscription Services. PROVIDER shall not be liable for any delays, interruptions, suspensions, or unavailability of the Subscription Services or the data stored within the Subscription Services, attributable to problems beyond its reasonable control, including but not limited to problems with the Internet or the configuration of CLIENT’s computer systems. In such case, PROVIDER shall use its best efforts to mitigate the problems and restore service.

CLIENT acknowledges that the Subscription Services are intended to perform with, and PROVIDER provides the Subscription Services based upon, the system requirements specified in the Statement Of Work or additional documentation made available by PROVIDER to CLIENT, as those may be updated by PROVIDER from time to time. PROVIDER shall not be liable for failure of the Subscription Services based upon CLIENT’s failure to comply with such system requirements.

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11.2 Authority Warranty

PROVIDER warrants that it has all authority necessary to provide for CLIENT’S access and use of the Subscription Services and the Non-subscription Services for the purposes set forth in this AGREEMENT, in any SaaS Subscription Schedule and in any Statement of Work. PROVIDER further represents and warrants that sale, licensing or use of any of the Subscription Services and of the Non-subscription Services furnished under this AGREEMENT will not infringe, misappropriate or otherwise violate any Third Party’s intellectual property rights, nor breach any third party agreements.

11.3 Software Warranty

Unless otherwise expressly provided in this AGREEMENT, a SaaS Subscription Schedule or Statement of Work, PROVIDER for itself and for and on behalf of its sub- Providers, licensors, employees and agents warrants that: (a) the functions contained in the Subscription Services and in any Non-subscription Services provided under this AGREEMENT shall meet CLIENT’S requirements, (b) the operation of the Subscription Services and any Non-subscription Services shall be uninterrupted and error free, (c) the Subscription Services and any Non-subscriptions Services shall have the capacity to meet the demand during the times specified in the Subscription Services Schedule(s) and in the Statement(s) of Work for Non-subscription Services and (d) the Subscription Services shall work with future Software releases, as well as future release of web browsers, and shall have both forward and backward functionality. PROVIDER shall be liable for any damages that CLIENT may suffer arising out of use of, or inability to use, the Subscription Services and Non-subscription Services provided under this Agreement.

Without limitation, PROVIDER’S financial obligation under this Paragraph includes any claim, damage, loss or expense arising from or in connection with any act by an agent, sub-Providers or, consultant, or employee of PROVIDER that results in, or is intended by such agent, sub-Provider, consultant, or employee to result in, harmful or otherwise unauthorized access into any of CLIENT’S system, data, CLIENT’S Confidential Information, or CLIENT’S technology.

11.3 Warranty Against Undisclosed Illicit Code

PROVIDER warrants that unless authorized in writing by CLIENT, any software program or any other part or portion of the Subscription Services or Non-subscription Services developed by PROVIDER, passed through to CLIENT from Third Parties under this AGREEMENT or provided to CLIENT by PROVIDER for use by PROVIDER or CLIENT shall:

(i) Not contain any hidden files;

(ii) Not replicate, transmit or activate itself without control of a human operating the computing equipment on which it resides;

(iii) Not alter, damage or erase any data or computer programs without control of a human operating the computing equipment on which it resides;

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(iv) Not contain any key, node lock, time-out or other function, whether implemented by electronic, mechanical or other means, that restricts or may restrict use or access to any software programs, Subscription Services or Non-subscription Services developed or data created under this AGREEMENT, based on residency on a specific equipment configuration, frequency of duration of use or other limiting criteria;

(v) Not contain any virus, malicious, illicit or similar unrequested code, whether known or unknown to PROVIDER; and

(vi) Not use electronic self-help, including but not limited to preventing electronically CLIENT’S further or continued use of and/or access to the Subscription Services, Non-subscription Services or any software or other portion thereof.

Notwithstanding any provision in this AGREEMENT to the contrary, if any Subscription Service or Non-subscription Service has any of the foregoing attributes (collectively “Illicit Code”), PROVIDER shall be in default of this AGREEMENT, and no cure period shall apply. At the request of and at no cost to CLIENT, PROVIDER shall remove any such Illicit Code from the licensed software as promptly as possible.

To protect CLIENT from damages that may be caused intentionally or unintentionally by the introduction of Illicit Code into CLIENT’S computer systems, no software may be installed, executed or copied onto CLIENT’S equipment without an express warranty to CLIENT that Illicit Code does not exist. Such warranty shall be set forth on an exhibit attached to and made a part of this AGREEMENT.

PROVIDER agrees that in the event of any dispute with CLIENT regarding an alleged breach of this AGREEMENT, PROVIDER shall not use any type of electronic means to prevent or interfere with CLIENT’S use of any portion of the Subscription Services and Non-subscription Services. PROVIDER understands that a breach of this provision could foreseeably cause substantial harm to CLIENT and to numerous Third Parties having business relationships with CLIENT.

11.5 Warranty Against Location of Any Client Data Outside the United States of America

PROVIDER warrants that none of the CLIENT Data shall be stored, transferred, located or otherwise transmitted outside of the United States of America (“United States”); that only view-only access will be allowed for any access to any person, entity, corporation or governmental body located outside of the United States, except through view-only access, and then only subject to the express written approval of CLIENT; and that PROVIDER shall not disclose any Client Data to any government other than one located in the United States.

12. MECHANISMS FOR IDENTIFYING AND AVOIDING PROBLEMS

12.1 Program Managers

With respect to each Subscription Services Schedule and each Statement of Work, each Party shall designate in writing one (1) individual to serve as its program manager during the term of this AGREEMENT. This individual (the “Client Program Manager” or

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“Provider Program Manager,” as appropriate) shall be deemed to have authority to issue, execute, grant and provide any approvals, requests, notices and other communications required under this AGREEMENT or requested by the other Party; however, such authority shall be limited to the specific SaaS Subscription Schedules and Statements of Work for which the Program Manager has been designated; provided, further, that no such Program Manager shall have any right to amend, modify or otherwise change this

AGREEMENT.

12.2. Review Meetings and Status Reports

In addition to the meetings and status reports required in the Scope of Work for Non-Subscription services:

12.2.1. Annual Meeting

Each AGREEMENT year, PROVIDER shall, at CLIENT’S option and request, meet with CLIENT and provide a review of PROVIDER’S planned technology and pricing improvements, as well as a report on the previous year’s performance.

12.2.2. Emergency Meetings

Whenever a situation arises that CLIENT, in its sole opinion, deems to be an emergency affecting CLIENT’S use of the Subscription Services and/or the Non-subscription Services, the CLIENT Program Manager may request and require the PROVIDER Program Manager or his/her respective designees, as well as appropriate additional personnel involved in the particular SaaS Subscription Schedule or Statement of Work activities immediately or as promptly as reasonably possible to meet at a location designated by CLIENT, or at CLIENT’S option, conduct a telephone conference call, to discuss the emergency and how best to address it.

12.2.3. Cost of Meetings

Each Party shall bear its own expense associated with attending and participating in any of the meetings required under this Paragraph 12.2.

12.2.4 Status Report

PROVIDER shall provide a status report to CLIENT each calendar month, in which it shall identify the status of the Subscription Services and Non-subscription Services, and any and all issues or Service Problems that may impact its ability to provide Subscription Services and Non-subscription Services to CLIENT. In addition, PROVIDER shall provide a status report within twenty-four (24) hours of any Service Problem.

12.3. Effect of PROVIDER’S Failure to Identify and Specify Service Problems

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If PROVIDER fails to specify in writing any Service Problem in a status report, it shall be conclusively presumed for purposes of this AGREEMENT that no Service Problem arose during the prior month, and PROVIDER shall not be entitled to rely upon such unidentified Service Problem as a purported justification for either (i) claiming it is entitled to receive any amount (including, without limitation, damages or additional charges arising out of a breach by CLIENT of a CLIENT obligation) with respect to any additional services it may have to provide to perform its obligations under this AGREEMENT, or (ii) failing to provide any Subscription Services or Non-subscription Services within the applicable Service Level parameters. Submission by PROVIDER of status reports pursuant to Paragraph 12.2.4 shall not alter, amend or modify PROVIDER’S or CLIENT’S rights or obligations pursuant to any provision of this

12.4 Failure to Perform Services or to Meet Service Levels

In consideration of the agreed-to fees to be paid by CLIENT under this AGREEMENT and for no additional consideration, PROVIDER shall create and maintain processes to support the Subscription Services and Non-subscription Services as established in the SaaS Subscription Schedules and Statements of Work. Process documentation shall be created and maintained by PROVIDER for Subscription Services, Non-subscription Services, related Service Level measurement, and the type of problem handled by PROVIDER’S help desk. This documentation shall be updated by PROVIDER on a continuous improvement basis with formal revisions being presented to CLIENT for its determination of acceptability every (90) days. The processes and documentation are exclusively the property of CLIENT. If CLIENT determines that the Subscription Services or the Non-subscription Services, or any related Service Levels are not being performed to the level committed, CLIENT can enact any or all of the following items:

(i) Strictly enforce PROVIDER’S account management obligations as further defined in the applicable SaaS Subscription Schedule and Statement Work;

(ii) Require PROVIDER, at its expense, to provide additional resources that improve the Subscription Services and Non-subscription Services to reach the specified Service Levels;

(iii) Enable the dispute resolution process as set forth in RFP 25-005, Appendix C, Federal Terms and Conditions of this AGREEMENT;

(iv) Retain a proportionate percentage of the fees as credit as set forth in the applicable SaaS Subscription Schedule and Statement of Work;

(v) Invoke alternative remedies as may be specified in this AGREEMENT or in any Exhibit; or

(vi) Discontinue receiving the Subscription Services and Non-subscription Services and terminate this AGREEMENT for cause. In the case of termination, PROVIDER shall continue performance as provided in Section 16.6.

13. INDEMNITY OBLIGATIONS

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13.1 PROVIDER Indemnity Obligations

PROVIDER shall defend, hold harmless and indemnify CLIENT, and its agents, employees, representatives, and Board members against and from any all claims, demands, suits, judgments, defense costs, injury to or death of any and all persons(s) and on account of all property damages of any kind, whether tangible or intangible, real and/or personal liability or damages of any kind to the extent arising out of: (a) PROVIDER’S goods or services provided to CLIENT; (b) actions or business operations of PROVIDER, its sub-PROVIDERS, their property, employees or agents, or caused in whole or in part by the PROVIDER , its sub-PROVIDERS, their property, employees, or agents,; (c) PROVIDER’S actions taken under the AGREEMENT, or for any breach of the AGREEMENT; (d) PROVIDER’S alleged infringement of any intellectual property rights under the AGREEMENT; (e) PROVIDER’S negligence, errors or omissions, misconduct, violation of any law, unpaid wages or services; (f) any claim, damage loss or expense arising from or in connection with any act by any agent, PROVIDER or, sub- PROVIDER or, consultant, or employee of PROVIDER that results in, or is intended by such agent, PROVIDER or, sub-PROVIDER or, consultant, or employee to result in malicious, harmful or otherwise unauthorized access into any of CLIENT’S system data, CLIENT’S Confidential Information or CLIENT’S technology.

PROVIDER shall pay all costs, damages and attorneys’ fees incurred. In addition to defending, holding harmless and defending CLIENT as stated above, if a claim occurs or, in PROVIDER’S opinion, is likely to occur, PROVIDER shall, at its sole option and expense, either (i) procure for CLIENT the right to continue using the Subscription Services and Non-subscription Services in question or (ii) replace or modify any infringing Subscription Services and Non-Subscription Services in total or in part so that they become non-infringing; provided that none of the benefits to CLIENT of the Subscription Services’ or Non-subscription Services’ functionality are adversely affected by such replacement or modification.

13.2 CLIENT Indemnity Obligations

Except as may be provided by Federal Regulations and Oregon law applicable to public bodies, CLIENT shall (a) defend PROVIDER against any claims by Third Parties arising from CLIENT’S use of the Subscription Services and Non-subscription Services provided by PROVIDER where such usage by CLIENT is (1) contrary to this AGREEMENT or to agreed-to documentation provided by PROVIDER; (2) the CLIENT Data, (3) CLIENTS’s failure to meet statutory obligations of privacy to any person or entity, (4) CLIENT’s failure any necessary consents, permits, or authorization, or (5) CLIENT’s breach or violation of any provision of this AGREEMENT; provided, however, such indemnification shall exclude (i) proprietary rights infringement claims under Paragraph 13.1 and (ii) claims for bodily injury or damages to tangible personal property proximately caused by the act, error or omission of PROVIDER, and (b) pay costs, damages and attorneys’ fees finally awarded against PROVIDER and any settlement costs incurred as a result of such claims.

13.3 Conditions

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With regard to the indemnification provisions in Paragraphs 13.1 and 13.2, the indemnifying Party shall be notified as soon as practicable of any such claim and shall have the right to control the defense of all such claims and related lawsuits of proceedings. In no event shall the indemnified Party settle any such claim, lawsuit or proceedings without the indemnifying Party’s prior approval, which will be unreasonably withheld, delayed or conditioned. Each Party shall provide the other with reasonable cooperation required for the defense and settlement.

13.4 Limitation of Liability

Except as may be provided by Federal Regulations and Oregon law applicable to public bodies, this AGREEMENT will not contain or permit any limitation of liability provision in the event of a claim or issued judgment through the performance of the AGREEMENT. Liability limitations are prohibited by Federal law and may be considered a gift of public funds and may therefore be prohibited by Oregon State Statute.

14. DEFAULT AND REMDIES

In addition to the terms outlined in RFP 25-005 Appendix C, Federal Terms and Conditions, PROVIDER agrees to and…