RFP Attachment A - Sample Contract.docx

STATE OF OREGON

INFORMATION TECHNOLOGY SERVICES CONTRACT

This Information Technology Services Contract (Contract) is entered into by and between the State of Oregon (State) acting by and through its Oregon Department of Human Services (“Agency”), and [legal name of contractor as registered with Oregon Secretary of State], an __________ corporation (“Contractor”) and is effective as of the Effective Date (defined below).

RECITALS

Agency desires to engage a Contractor to provide Operations and Maintenance, Enhancements and Data Migration for, and related services (the “Services” as defined below) for the ODHS and OHA Salesforce System (”Systems”) for Centralized Abuse Management System (CAM), the Corrective Action and Licensing Management Survey CALMS) and the Emergency Responsible Management System (ERMS) to enable Agency to achieve specific business and Agency mission objectives defined in this Contract. To that end, Agency issued RFP #S-DASOBO-00014873.

Contractor is the successful proposer to the RFP and Agency desires Contractor to perform the Services.

Contractor desires to perform the Services for Agency.

AGREEMENT

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

1. DEFINITIONS.

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

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

“Authorized Representative” means a person representing a party to this Contract who is authorized to make commitments and decisions on behalf of the party regarding the performance of this Contract. Contractor’s Authorized Representative is the person so identified in Exhibit D. Agency’s Authorized Representative is the person so identified in Exhibit E.

“Available” means the application and the supporting computing infrastructure under the Contractor's control are operating normally.

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

“Business Operations Window” means 7:00 AM -10:00 PM PT Monday-Friday, excluding State Holidays.

“Business Support Hours” means 8:00 AM - 5:00 PM PT Monday-Friday, excluding State Holidays.

“Calendar Days” means contiguous days.

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

“Defect” means a failure of the System to operate in accordance with Requirements, despite the proper use of the System. A Defect may be due to a data error, or a problem with the System, Documentation, or both.

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

“Documentation” means all documents, including documents that are Deliverables described in a Statement of Work, and which may include operator’s and user’s manuals, training materials, guides, commentary, listings, requirements traceability matrices and other materials for use in conjunction with and for the operation of the Services. Documentation includes documents in hard copy or electronic form.

“Downtime” means any time outside of maintenance window or Agency-requested maintenance that a key function is not Available because the System is not operating normally.

“End User” means any person employed by Agency with access to the System or any person authorized by Agency to use the System.

“Enhancement” means adding new features, capabilities, or integrations to existing to the System to expand its functionality. Salesforce required updates are not “enhancements” and shall be considered standard O&M Refinements.

“Hot Fix” means an urgent, unscheduled corrective action applied to a system to address a critical issue, such as a security vulnerability, data integrity failure, or service disruption. Hot Fixes are implemented outside of regular maintenance or release cycles and are intended to provide an immediate resolution to high-priority defects with minimal impact to system availability.

“Incident” means an unexpected event or disruption that affects the normal operations, performance or security of the system and requires corrective action.

“Issue” means a broad term that refers to any identified defect, feature request or enhancement in a system.

“Key Persons” means Contractor’s Authorized Representative and all other Contractor personnel designated as Key Persons in Exhibit D.

“Production Environment” means the hardware, software, including operating system software, and the system architecture and firmware necessary for the System to operate.

“Requirements” are the functions and elements required for the System. Requirements are in Exhibit G.

“Service Level Agreement or SLA” defines the level of service expected from Contractor, including the metrics by which service is measured, as well as remedies should service levels not be met. SLAs are set forth in Exhibit B.

“State” means the State of Oregon.

“Statement of Work or SOW” means the document that describes the Services to be provided by Contractor, including the Tasks and Deliverables, the attributes (including requirements and specifications) of each Deliverable, identification of the Deliverables and Services that are associated with each Task, and a completion date for each Task and Deliverable, and any other items as agreed by the parties, including as amended pursuant to Section 7.

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

“Ticket Software” means an Agency procured and maintained online existing system that serves as the System of record and tool for the tracking of Incidents through the resolution lifecycle. The requirements and incident management system being used is currently Azure Development Operating System (ADOS).

“Personally Identifiable Information” means the collected and stored personal information in which the State has legal and ethical responsibility to keep private and protected such as protected health information, personal income tax, driving records, criminal history information and education data.

“Refinement” means a mutually agreed-upon system modification requested by Agency to improve an existing system’s efficiency, performance, usability, or security without altering its core functionality. Refinements may include debugging, streamlining processes, applying minor updates, fine-tuning configurations, or enhancing the user experience. To include all Salesforce required updates.

“Release” means any Hot Fix, Update, Enhancement of the System.

“Release Notes” means documentation summarizing new features and functions that will be included in each Release including a reference to associated Ticket Software tickets and Developer Guides.

“Reporting Period” means a time period that is 1/12 of a calendar year during which the Contractor provides Services and reports on the Services provided.

“Response” means Contractor's acceptance and acknowledgment back to the Agency of a user-reported problem with the System.

“Resolution” means repair to the System to correct a failure of the System or any function in the System.

“Scheduled Maintenance” means Maintenance services occurring outside of Business Operations Window and Contractor provided written notice to the Agency as described in the Operational Support Plan.

“Software Component” means application software, a web service, a web resource, or software module, script, or any other software developed or configured by Contractor that together comprise the System.

“State Holiday” means ODHS general business hours are closed for observed State Holidays. Holidays that fall on Saturday shall be recognized on Friday before. When holiday falls on a Sunday, the following Monday shall be recognized as a State holiday.

“Security Audit” means a formal, systematic evaluation of the system’s security controls, configurations, and practices to determine how effectively they protect the system and its data from unauthorized access, misuse, or vulnerabilities.

“System Data Dictionary” means the authoritative reference for how data is structured and behaves in the System.

“Ticket” means the Document created electronically in the Agency ticket software used for reporting, tracking, and resolving System issues or problems.

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

“Update” means a planned and tested modification to a system that may include Salesforce-required updates, new features, performance improvements, security patches, or minor bug fixes. Updates are typically deployed on a regular schedule and are part of the System’s ongoing operations and maintenance (O&M) lifecycle.

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

“User Acceptance Testing” means the final testing stage in software development before production. The agency staff conduct simulated testing in a controlled environment to detect bugs and other issues to ensure the System meets business requirements, specifications, agreed criteria, workflow aligns with business operations and software complies with State and federal regulations.

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

2. TERM.

The Effective Date of this Contract is _________, or the date on which this Contract is fully executed and approved according to applicable laws, rules and regulations, whichever is later. This Contract terminates on [date to be determined at Contract execution], unless otherwise terminated or extended in accordance with its terms.

3. SCOPE OF SERVICES.

3.1 Responsibilities of Contractor. Contractor shall perform the Services as set forth in the applicable Statement of Work and Service Level Agreements, and in accordance with the current, accepted Project Schedule, and the standards and methodologies set forth in this Contract. Contractor shall perform the Services:

3.1.1 Employing a methodology that conforms to the standards established by the Project Management Institute (PMI) as described in the current Project Management Body of Knowledge (PMBOK), supplemented by standards set forth in ISO 12207; and

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

3.1.3 Contractor shall cooperate with Agency and its designated third parties, including its Quality Assurance contractor, by providing access and information on the System’s architecture, design, operating environment, security, interfaces, and operating parameters as required for all oversight activities and Agency-identified third-party services.

3.2 Responsibilities of Agency. If a Statement of Work requires Agency to provide any resources, and Agency fails to provide the resources for a period that does not exceed fourteen (14) Calendar Days or such other agreed upon time, Contractor’s sole remedy is an extension of the applicable delivery dates corresponding to the delay. If Agency’s failure to provide the resources exceeds fourteen (14) Calendar Days or other agreed upon time, Contractor may be entitled to recover from Agency the reasonable increased costs incurred or to be incurred due to the delay. Contractor must send Agency written notice of Agency's failure, plus detailed information on the cost increases incurred or to be incurred, and Contractor must use commercially reasonable efforts to perform notwithstanding Agency's failure to perform.

3.3 Delivery and Review of Deliverables. Contractor shall deliver Deliverables and complete Tasks as set forth in the applicable Statement of Work by no later than the date or dates set for delivery in the Statement of Work, Exhibit A or the current, accepted Project Schedule.

3.4 Enhancement Process.

3.4.1 Ongoing Design Support, Development Support and Additional Services (Change Order Development Guides/Enhancements/Additional Services)

Agency may, at their sole discretion, order design support (Developer Guides), System Enhancements or other Contractor provided consulting services not covered in the O&M Services (“the Additional Services”), using the Change Control process of Section 7.1 up to any limit set forth in the Payment and Deliverable Schedule, The Change Order Additional Services must identify fixed price deliverables that will be subject to the Delivery and Review of Deliverables (section 3.3) provision of the Contract and the Payments provision (Section 6.2) of the Contract.

The Contractor shall deliver Enhancements to the Agency following a process with three (3) distinct phases:

Phase 1- Design Support (Developer Guides) Phase 2 - Development and Contractor Testing Support Phase 3 - User Acceptance Testing and Deployment Support Periodically, throughout the term of this SOW, the Agency will provide the Contractor with proposed change requests for a specific set of requirements. Contractor shall provide written quotations for the provision of a Developer Guide for each Agency proposed change request.

The Contractor shall provide a written quotation for each Developer Guide following one or more requirements review sessions to validate and clarify the Agency's requirements. These sessions will include a small number of Agency staff who have delegated decision making authority on behalf of the in-scope programs. The written quotation for each Developer Guide shall include one or more solution options for consideration by the Agency.

3.4.2 Design Support (Phase 1)

Phase 1 • Design Support/ Once the Agency has selected a solution option and provided the Contractor with a fully executed Change Order, the Contractor shall create the Developer Guide.

Each Developer Guide must include the following components:

1. Original (initial CR submission) and Updated Level of Effo1t (after JAD session)

2. Change Request Details

3. Detailed Requirements

4. High Level Process Flow

5. Screen Mockups/Wireframes with Annotations

6. Use Case and Process Flow

7. User Roles and Permissions

8. New or Changed Data Elements In instances where the Agency and Contractor mutually agree that a component listed above is not relevant and does not add value to the design process for a specific change request, the Contractor shall leave the component section blank within the Developer Guide with a brief note to explain why the section does not apply.

Upon Agency Acceptance of the Developer Guide, the Contactor shall also provide an updated version of the Change Request with the costs to perform Phase 2 - Development and Contractor Testing Support and Phase 3 - User Acceptance Testing and Deployment Support services.

The Agency, at its sole discretion, shall determine whether to pursue Enhancement services (Phase 2 and Phase 3) as described in each Agency Accepted Developer Guide.

3.4.3 Enhancement Services (Phases 2 and 3)

Phase 2 - Development and Contractor Testing Support Should the Agency decide to proceed with Development Support and Contractor Testing Support Services, the Agency and the Contractor shall execute a Change Order for these Services. Upon execution of the Change Order, the Contractor shall provide Development Support Services and Contract Testing Support and Test Reporting Services, as follows:

A. Development Support Revised configurations for existing Salesforce environments as needed for use by the System including code changes as required to meet accepted requirements and design as described in the associated, Agency Accepted Developer Guide.

B. Contractor Testing Support and Test Reporting The Contractor shall provide the following Testing Support Services for each Agency Accepted Developer Guide.

· System Testing

· Browser compatibility testing (2 browsers)

· Security Vulnerability Testing

· Regression Testing The Contractor shall prepare System Integration (SI) Test Scripts that cover applicable System testing, regression testing, browser compatibility testing, and security vulnerability testing. Upon Agency Acceptance of the SI Test Scripts, the Contractor shall execute the SJ Test Scripts.

The Contractor shall provide daily reports to Agency during System testing. Daily reports for System Testing must include the following:

· Total Tests

· Expected Completion

· Passed Tests to Date

· Number of Bugs/Defects including Severity Level

· Test title

Phase 3 - User Acceptance Testing and Deployment Support

Subject to Agency Acceptance of the Phase 2 - Development Support and Contractor Testing Support Deliverable, the Contractor shall provide User Acceptance Testing and Deployment Support Services as follows:

A. Contractor shall support User Acceptance Testing (UAT).

B. Production Deployment Contractor shall collaborate with Agency Staff on Release planning. Contractor shall provide the Agency with Release Notes, describing the scope of the Release. Contractor shall deploy all Agency approved Releases into the Production Environment.

C. Documentation Updates Contractor shall update the Functional Design Document (FDD), Technical Design Document (TDD) and Data Dictiona1y (DD) to record any changes made to the System since the last Document update, through and including the current Release. All updates to the (FOO, TDD and DD) must be completed by the Contractor and Accepted by the Agency prior to Agency Acceptance of the Phase 3 - User Acceptance Testing and Deployment Support Milestone. All updates to the FDD, TDD and DD shall build on the existing content and follow the format of the Final Project Library Catalog. Agency will conduct Final Acceptance of the Enhancement.

Phase 3 support shall be priced at 40% of the cost of the Phase 2 support for each Agency approved Developer Guide.

3.5 Service Levels and Performance Reporting. Contractor shall, at all times, comply with all performance requirements and expectations specified in the Contract, including all Requirements. Contractor warrants that the System will meet all Requirements, and all federal agency requirements.

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

3.7 Assessment of Damages. The parties agree that Contractor’s failure to meet the Service Level Agreements stated in Exhibit B will result in damage to Agency. Where actual damage will be difficult to determine, Contractor shall provide service credits to State in the amounts specified in Exhibit B. The remedies stated in Exhibit B are in addition to any other remedy for damages provided in the Contract. If Agency recovers actual damages in addition to the service credits, Agency will reduce such actual damages by the amounts received as service credits for the same events causing the actual damages.

3.7.1 In the event of Contractor’s failure to meet a Service Level Agreement in Exhibit B, Agency may at its option:

· Assess and withhold from payments due Contractor the amounts due for any damages or liquidated damages specified in Exhibit B; or

· Make immediate demand on Contractor for payment of the damages and liquidated damages specified in Exhibit B; or

· Accept a credit for change order services in lieu of assessing liquidated damages or damages. Unless otherwise specified, the credit will be equal to the value of the liquidated damages.

3.7.2 Notice. Agency will provide written notice of Agency’s intent to assess damages or offset service credits ten (10) Calendar Days prior to assessment or the date Agency deducts such sums from money payable to Contractor.

3.7.3 Measurement and Monitoring Tools. Contractor shall measure and monitor the performance of the Services against the applicable Service Level Agreements. Such measurement and monitoring must permit reporting at a level of detail sufficient to verify compliance with the Service Level Agreements and is subject to audit by Agency. Contractor shall provide Agency with information and access to all tools and procedures, for purposes of auditing and verification. Agency must be able to access the information online and in real-time, where feasible, at any time during the term of this Contract and may monitor or audit the records at any time, at its discretion, without notice.

3.7.4 Modifications to Service Levels. Upon agreement, the parties may add or modify performance metrics and Service Level Agreements, provided that changes to service levels will be established based on current performance (at least three (3) months of service metrics) and business requirements, and additional requirements may be added based on business requirements. Nowithstanding the foregoing, Agency may delete service levels at any time during the Term by sending written notice to Contractor.

4. CONTRACTOR’S PERSONNEL

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

4.1.1 Notwithstanding the foregoing, Contractor may replace Key Persons without Agency’s consent in the event any Key Persons are no longer available due to circumstances beyond Contractor’s reasonable control, such as death, illness, or termination of employment with Contractor. In the event Contractor requests that Agency approve a re-assignment or transfer of the Key Persons, or if Contractor must replace Key Persons, Agency may interview, review the qualifications of, and approve or reject the proposed replacement(s) for the Key Persons. Any such replacement must have substantially equivalent or better qualifications than the Key Person being replaced. Any replacement personnel approved by Agency will thereafter be deemed a Key Person for purposes of this Contract and Exhibit D deemed amended to include such Key Person. Agency reserves the right to determine if a replacement Key Person has acquired the project knowledge and skills necessary to perform within the twenty-eight (28) Calendar Day period following Agency approval of the replacement Key Person.

4.1.2 Contractor shall not charge Agency, and Agency will not pay, for a replacement Key Person while such replacement acquires the project knowledge and skills necessary to perform the Services. Such period of non-charge will be agreed upon by the parties, and will last for a minimum of fourteen (14) Calendar Days but not more than twenty-eight (28) Calendar Days, and will be reflected as an adjustment to a fee for a Deliverable associated with the replacement Key Person’s Services.

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

4.3 Anti-Discrimination. Contractor certifies that Contractor has a written policy and practice that meets the requirements described in ORS 279A.212 for preventing sexual harassment, sexual assault, and discrimination against employees who are members of a protected class. Contractor agrees, as a material term of this Contract, to maintain such policy and practice in force during the entire Contract term. Contractor’s failure to maintain such policy and practice constitutes a breach entitling Agency to terminate this Contract for cause.

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

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

5. INDEPENDENT CONTRACTOR; TAXES AND WITHHOLDING.

5.1 Independent Contractor. Contractor shall perform all Services as an independent contractor. Although Agency reserves the right to evaluate the quality of the completed performance, Agency cannot and will not control the means or manner of Contractor’s performance. Contractor is responsible for determining the appropriate means and manner of performing the Services. Contractor declares and certifies by execution of this Contract that it is not an “officer,” “employee,” or “agent” of Agency, as those terms are used in ORS 30.265.

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

5.3 Declaration and Certification as to Conflict of Interest. Contractor by execution of this Contract declares and certifies that (i) its performance of the Services creates no potential or actual conflict of interest as defined by ORS Chapter 244, for Contractor or any Contractor personnel or Key Persons who will perform Services under this Contract; (ii) in the event that Contractor or its personnel are either employed by or performing services for the federal government, that no rules or regulations of the agency for which Contractor or its personnel work or are employed prohibit Contractor or its personnel from providing the Services under this Contract; and ; and (iii) this Contract and the delivery of Services creates no other violation of ORS Chapter 244 for Contractor, its employees, agents, or contractors.

5.4 Responsible for Taxes. Contractor is responsible for all federal and state taxes applicable to compensation and other payments paid to Contractor under this Contract and, unless Contractor is subject to backup withholding, Agency will not withhold from such compensation and payments any amount to cover Contractor’s federal or state tax obligations. Contractor is not eligible for any social security, unemployment insurance, or workers’ compensation benefits from compensation or payments paid to Contractor under this Contract, except as a self-employed individual.

5.5 Compliance with Tax Laws. Contractor shall, throughout the duration of this Contract, comply with all tax laws of State and all applicable tax laws of any political subdivision of State. Any violation of this section or of Contractor’s warranty in Section 11.1.7 constitutes a material breach of this Contract. Any violation of this section or Section 11.1.7 entitles State to terminate this Contract, to pursue and recover damages that arise from the breach and the termination of this Contract, and to pursue all other remedies available under this Contract, at law, or in equity.

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

5.7 Disclosure of Social Security Number. Contractor shall provide Contractor’s Social Security number unless Contractor provides a federal tax identification number. This number is requested pursuant to ORS 305.385, OAR 125-246-0330(2)(d), and OAR 150-305.100. Social Security numbers provided pursuant to this authority will be used for the administration of state, federal, and local tax laws.

6. COMPENSATION.

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

6.2 Payments. Payments are subject to all provisions of this Section 6.

6.2.1 Payment of Fixed Prices. Agency will pay to Contractor the fixed price listed in Exhibit I for each Deliverable completed, delivered to, and Accepted by Agency.

6.3 Payment for O&M Services. Agency will pay to Contractor the fixed price per month for the Operation and Maintenance Services (“O&M Fee”), as set forth in Exhibit I.

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

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

6.6 Invoices. Agency will pay Contractor not more than once each month upon Contractor’s submission of a detailed invoice that sets forth the O&M Fee and the fixed prices due for other Services performed, and Deliverables Accepted by Agency. Such invoices must comply with the requirements of this Section 6, identify the Deliverables completed and Accepted for which Contractor seeks compensation, and itemize and explain all authorized expenses for which reimbursement is claimed. Contractor shall submit invoices to Agency’s Authorized Representative (or delegate). Agency will have the right to review each such invoice for compliance with the requirements of this section and any other relevant provisions of this Contract. All payments to Contractor are subject to ORS 293.462.

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

6.8 Funds Available and Authorized. Contractor will not be compensated for Services performed under this Contract by any other agency or department of the State of Oregon. Agency believes it has sufficient funds currently available and authorized for expenditure to finance the costs of this Contract within Agency’s biennial appropriation or limitation. Contractor understands and agrees that Agency’s payments under this Contract are contingent on Agency receiving appropriations, limitations, or other expenditure authority sufficient to allow Agency, in the exercise of its reasonable administrative discretion, to continue to make payments under this Contract.

7. Amendments. This Contract may be amended, modified, or supplemented only by a written amendment signed by State and Contractor that, if required by applicable law, has been approved by DAS and for legal sufficiency by DOJ. Any amendment that provides for additional Services may only provide for Services directly related to the scope of goods and services described in the RFP, and no amendment will be effective until all requisite signatures and approvals are obtained. Either Agency or Contractor may request a change to this Contract, including to any of its exhibits, by submitting a written proposal describing the desired change to the other party.

7.1 Change Control Process. Subject to the conditions above, amendments to a Statement of Work, Exhibit B, Service Level Agreements, Exhibit G, Requirements, and related costs may be managed through an Agency-authorized change control process that reflects at least the processes described in this section. Either Agency or Contractor may request a change by submitting a written proposal describing the requested change to the other party. Agency’s and Contractor’s Authorized Representatives will review the written change request and either mutually approve it for further analysis or reject it.

7.2 Payments. Subject to the foregoing provisions of this Section 7 and performance of the Services, Agency will pay for Services performed pursuant to a Change Order according to the acceptance and payment procedures set forth in this Contract.

8. OWNERSHIP AND LICENSES.

8.1 Agency Data and Agency Intellectual Property. Agency owns all Agency Data and all Agency Intellectual Property, including Agency Data and Agency Intellectual Property that is Work Product or that is otherwise created by or resulting from the Services. Contractor hereby irrevocably assigns to Agency any and all of its rights, title, and interest in all Agency Data and Agency Intellectual Property, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Upon Agency’s reasonable request, Contractor shall execute such further documents and instruments to fully vest such rights in Agency. Agency grants Contractor a right to use Agency Data and Agency Intellectual Property for the purposes of this Contract only.

8.2 Contractor Intellectual Property. Contractor retains ownership of all Contractor Intellectual Property that Contractor delivers to Agency pursuant to the Services performed under this Contract. In the event that Work Product is Contractor Intellectual Property, a derivative work developed by Contractor based on Contractor Intellectual Property, or a compilation that includes Contractor Intellectual Property, and provided Agency has paid any applicable licensing fee, Contractor grants Agency a license to the Work Product during the term of this Contract to use, copy, display, distribute, and transmit Contractor Intellectual Property employed in the Work Product, and to authorize others to do the same on Agency’s behalf.

8.3 Work Product. State owns all Work Product. The State of Oregon has all right, title, and interest (including ownership of copyright and trademark) to Work Product. All Work Product is “work made for hire” of which Agency is the author within the meaning of the United States Copyright Act. If for any reason the Work Product is not “work made for hire” Contractor hereby irrevocably assigns to Agency any and all of its rights, title, and interest in all Work Product delivered under this Contract, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Upon Agency’s reasonable request, Contractor shall execute such further documents and instruments to fully vest such rights in Agency. Contractor waives any and all rights relating to Work Product created pursuant to this Contract, including without limitation any and all rights arising under 17 USC 106A or any other rights of identification of authorship or rights of approval, restriction, or limitation on use or subsequent modifications.

8.4 Third Party Intellectual Property. Unless otherwise specified in a Statement of Work that Agency, on its own, will acquire and obtain a license to Third Party Intellectual Property, Contractor shall secure on Agency’s behalf, in the name of Agency and subject to Agency’s approval, a license to Third Party Intellectual Property necessary for Agency to provide the Services.

8.5 Open Source Elements. Any open source materials in the System for which Agency may be subject to a license must be approved in advance and in writing by Agency. If Contractor desires to include any open source elements or materials that may subject Agency to an open source license, Contractor shall: (i) Notify Agency in writing that Contractor intends to include materials or elements subject to open source licensing, (ii) Identify the specific elements or materials that are subject to open source licensing, and (iii) Provide each applicable license to Agency.

8.6 No Rights. Except as expressly set forth in this Contract, nothing in this Contract may be construed as granting to or conferring upon Contractor any right, title, or interest in any intellectual property that is now owned or subsequently owned by Agency. Except as expressly set forth in this Contract, nothing in this Contract may be construed as granting to or conferring upon Agency any right, title, or interest in any Contractor Intellectual Property that is now owned or subsequently owned by Contractor.

8.7 No Rights in Marks. Neither party grants the other the right to use its trademarks, trade names, service marks or other designations in any promotion or publication without prior written consent. Each party grants only the licenses and rights specified in this Contract.

9. CONFIDENTIALITY AND NON-DISCLOSURE.

9.1 Confidential Information. Contractor acknowledges that it and its employees, agents, or subcontractors may, in the course of performing the Services under this Contract, be exposed to or acquire information that is confidential to Agency or Agency’s clients. Any and all information of any form obtained by Contractor or its employees, subcontractors, or agents in the performance of this Contract, including Agency Data, is deemed to be confidential information of Agency (“Confidential Information”). Contractor shall treat any reports or other documents or items (including data aggregations) that result from the use of the Confidential Information in the same manner as the Confidential Information. Confidential Information does not to include information that (i) is or becomes (other than by disclosure by Contractor) publicly known; (ii) is furnished by Agency to others without restrictions similar to those imposed by this Contract; (iii) is rightfully in Contractor’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Contract; (iv) is obtained from a source other than Agency without the obligation of confidentiality, (v) is disclosed with the written consent of Agency, or; (vi) is independently developed by employees, agents or subcontractors of Contractor who can be shown to have had no access to the Confidential Information.

9.2 Non-Disclosure. Contractor, its employees, agents, and subcontractors shall hold Confidential Information in confidence, using the highest standard of care applicable, and shall not copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information to third parties (other than its authorized subcontractors), or use Confidential Information for any purposes whatsoever other than the provision of Services to Agency hereunder, and shall advise each of its employees and agents of their obligations to keep Confidential Information confidential. Contractor shall assist Agency in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the generality of the foregoing, Contractor shall advise Agency immediately in the event Contractor learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Contract, and Contractor will at its expense cooperate with Agency in seeking injunctive or other equitable relief in the name of Agency or Contractor against any such person. Contractor shall not at any time during or after the term of this Contract, except as directed by Agency, disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this Contract, and that upon termination of this Contract or at Agency’s request, Contractor shall deliver to Agency all documents, papers, and other matter in Contractor's possession that embody Confidential Information. Notwithstanding the foregoing and unless otherwise specified in this Contract, Contractor may keep one copy of such Confidential Information necessary for quality assurance, audits and evidence of performance of the Services.

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

9.4 Non-Disclosure Agreement. Contractor shall upon Agency’s request provide a written non-disclosure agreement and obtain such from Contractor’s employees, agents, and subcontractors performing Services under this Contract.

9.5 Background Check. Contractor’s employees, agents and subcontractors that will perform Services under this Contract must submit to a background check conducted by the State. Such background check must occur prior to arrival on Agency premises or prior to access of Agency Confidential Information, whichever occurs first. Background checks will be performed at Contractor expense. Agency in its sole discretion has the right to reject any Contractor employee, agent, or subcontractor, or limit any such person’s access to the System or premises based on the results of the background check.

9.6 Confidentiality Policies. Contractor shall, upon Agency’s request, provide its policies and procedures for safeguarding Confidential Information to Agency for Agency’s review and consent. Such policies must address information conveyed in oral, written, and electronic format and include procedures for how Contractor will respond when a violation or possible violation occurs.

9.7 Response to Public Records Requests for Confidential Information. Agency, as an executive department agency of State, must respond to requests for Agency Data and other public records under Oregon’s Public Records laws within set timeframes. Contractor shall support the ability of DAS SPS or Agency to respond to public records requests for Agency Data in accordance with applicable law.

If Agency receives a request under the Oregon Public Records Law for the disclosure of Contractor Confidential Information, Agency will notify Contractor within a reasonable period of time of the request. Contractor is exclusively responsible for defending Contractor’s position concerning the confidentiality of the requested information. Notwithstanding the foregoing, while Agency is not required to actively assist Contractor in opposing disclosure of proprietary information, Agency will cooperate in good faith to the extent reasonably practicable with Contractor’s efforts to protect its proprietary information.

9.8 Injunction. Contractor acknowledges that breach of this Section 9, including disclosure of any Confidential Information, will cause irreparable injury to Agency that is inadequately compensable in damages. Accordingly, Agency may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available. Contractor acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of Agency and are reasonable in scope and content.

9.9 Publicity. Contractor agrees that it will not disclose the form, content or existence of this Contract or any Deliverable in any advertising, press releases or other materials distributed to prospective customers, or otherwise attempt to obtain publicity from its association with Agency or the State of Oregon, whether or not such disclosure, publicity or association implies an endorsement by Agency or the State of Oregon of Contractor’s services, without the prior written consent of Agency.

9.10 Return of Confidential Information. Upon termination of this Contract each party will turn over to the other all documents, papers and other matter in its possession which embody Confidential Information.

10. CONTRACTOR’S PROPRIETARY INFORMATION; OREGON PUBLIC RECORDS LAWS. Agency will use reasonable efforts to maintain the confidentiality of any proprietary information received from Contractor and will not use such proprietary information except to fulfill its obligations under this Contract and applicable state and federal law. Contractor acknowledges and agrees that any obligation of Agency to maintain the confidentiality of Contractor’s proprietary information is conditioned by and subject to Agency’s obligations under the Oregon Public Records Laws, including ORS 192.311 to 192.478, which may require disclosure of proprietary information as a “public record” unless exempt under ORS 192.501 or ORS 192.502, and the provisions for the custody and maintenance of public records, ORS 192.005 – 192.170.

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

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

10.3 Agency may disclose and provide copies of Contractor proprietary information to the extent disclosure is required by the Oregon Public Records Law (including ORS 192.311 to 192.478). If Agency receives from a third party any request under the Oregon Public Records Law for the disclosure of Contractor proprietary information, Agency will notify Contractor within a reasonable period of time of the request. Contractor is exclusively responsible for defending Contractor’s position concerning the confidentiality of the requested information. Notwithstanding the foregoing, while Agency is not required to actively assist Contractor in opposing disclosure of proprietary information, Agency will cooperate in good faith to the extent reasonably practicable with Contractor’s efforts to protect its proprietary information.

10.4 The confidentiality obligations imposed by this Section 10 do not apply to: (i) information that becomes part of the public domain through lawful means and without breach of any confidentiality obligation by the…