RFP_Attachment_A_Sample Master Services Agreement~1.pdf

STATE OF OREGON

SAMPLE MASTER SERVICES AGREEMENT [NUMBER]

FOR

ONLINE REVERSE AUCTION MANAGEMENT SERVICES

BETWEEN

OREGON DEPARTMENT OF ADMINISTRATIVE SERVICES, PROCUREMENT

SERVICES

AND

[CONTRACTOR NAME]

TABLE OF CONTENTS

AGREEMENT

1.1 PARTIES

1.2 DEFINITIONS

1.3 TERM OF AGREEMENT

1.4 TERMINATION OF AGREEMENT

1.5 ORDERING

1.6 PRICES

1.7 VOLUME SALES REPORT (VSR) AND VENDOR COLLECTED ADMINISTRATIVE FEE (VCAF)

1.8 REPORTING REQUIREMENTS

1.9 INSURANCE

1.10 CHOICE OF LAW

1.11 DESIGNATION OF FORUM AND CONSENT TO JURISDICTION

1.12 AMENDMENTS

1.13 TRANSFER

1.14 COUNTERPARTS

1.15 FORCE MAJEURE

1.16 ENTIRE AGREEMENT

1.17 NOTICES

1.18 INTENDED BENEFICIARIES

1.19 REPRESENTATIONS AND WARRANTIES

1.20 WAIVER

1.21 CERTIFICATION OF COMPLIANCE WITH TAX LAWS

1.22 PERFORMANCE EVALUATIONS

1.23 OREGON DEPARTMENT OF REVENUE REPORTING

STANDARD TERMS FOR CONTRACTS UNDER THIS AGREEMENT

2.1 CONTRACT DOCUMENTS; ORDER OF PRECEDENCE

2.2 PAYMENT

2.3 OVERDUE CHARGES

2.4 PAYMENT ADDRESS

2.5 INVOICES

2.6 FUNDS AVAILABLE AND AUTHORIZED

2.7 PRICES

2.8 CANCELATION, ACCEPTANCE TESTING

2.9 LICENSING AND TERMS

2.10 CONFIDENTIAL INFORMATION; OREGON PUBLIC RECORDS LAWS

2.11 REPRESENTATIONS AND WARRANTIES

2.12 COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS

2.13 FOREIGN CONTRACTOR

2.14 TIME IS OF THE ESSENCE

2.15 FORCE MAJEURE

2.16 INDEPENDENT CONTRACTOR STATUS; RESPONSIBILITY FOR TAXES AND WITHHOLDING

2.17 INDEMNIFICATION

2.18 EVENTS OF DEFAULT

2.19 REMEDIES

2.20 TERMINATION AND STOP WORK

2.21 RETURN OF PROPERTY

2.22 RECORDS MAINTENANCE AND ACCESS

2.23 NOTICES

2.24 ORDERING ACKNOWLEDGEMENTS

2.25 GOVERNING LAW

2.26 VENUE; CONSENT TO JURISDICTION

2.27 SURVIVAL

2.28 SEVERABILITY

2.29 ASSIGNMENTS, SUBCONTRACTS, AND SUCCESSORS

2.30 PROMPT PAYMENTS TO SUBCONTRACTORS

2.31 MERGER CLAUSE; AMENDMENT; WAIVER

2.32 ASSIGNMENT OF ANTITRUST RIGHTS

2.33 OREGON FALSE CLAIMS

2.34 NON-DISCRIMINATION IN EMPLOYMENT

2.35 PAY EQUITY COMPLIANCE

2.36 STATUTORY PROTECTIONS

2.37 DISCLOSURE OF SOCIAL SECURITY NUMBER

RESERVED

AUTHORIZED REPRESENTATIVES

SIGNATURE OF CONTRACTOR’S DULY AUTHORIZED

REPRESENTATIVE

5.1 CERTIFICATIONS

5.2 CONTRACTOR SIGNATURE

OREGON DEPARTMENT OF ADMINISTRATIVE SERVICES, PROCUREMENT SERVICES

SIGNATURE 34

LIST OF EXHIBITS

EXHIBIT A - DESCRIPTION OF THE SERVICES AND PRICES

EXHIBIT B – SAMPLE SERVICE ORDER CONTRACT

EXHIBIT C - INSURANCE REQUIREMENTS

EXHIBIT D – AGREEMENT AND RIDER TO TERMS OF SERVICE

EXHIBIT E – FEDERAL TERMS AND CONDITIONS

This Master Services Agreement (“Agreement”) is between the State of Oregon, acting by and through the Oregon Department of Administrative Services, Procurement Services (“DAS PS”), on behalf of State Agencies, ORCPP members, and Washington Master Contracts Use Organizations CUA Listing (wa.gov) as permitted under the Interstate Cooperate Agreement by and between the State of Oregon and the State of Washington (each an “Authorized Purchaser”) and [insert Contractor’s name], a [insert state of incorporation] (“Contractor”).

AGREEMENT

1.1 PARTIES

The only parties to this Agreement are DAS PS and Contractor.

1.1.1 Agreement Contract Administrators.

Agency Contract Administrator:

Name:

Address: 1225 Ferry St. SE, Salem, OR 97301 Phone:

Email:

Contractor Contract Administrator:

Name:

Address:

Phone:

Email:

1.1.2 Contracts. Authorized Purchasers may purchase Services, as specified in Exhibit A, by placing an Order via issuance of a Purchase Order or placing an Order via any other method authorized by DAS PS pursuant to this Agreement. The only parties to Contracts are the applicable Authorized Purchaser and Contractor. DAS PS is an intended beneficiary of each Contract created by an Order.

1.1.3 Services Manager. Contractor shall designate one or more Service Manager(s) for the duration of this Agreement and as a Key Person for each Contract. The Service Manager(s) shall be familiar with Authorized Purchasers’ business operations and objectives. The Service Manager(s) must:

1.1.3.1 Provide measurement and monitoring reports to verify compliance with Service Level Agreements;

1.1.3.2 Review the Services and Contractor’s performance and discuss possible improvements;

1.1.3.3 Discuss upgrades and enhancements to the Services or any new technologies that may be available;

1.1.3.4 Discuss any other Authorized Purchaser-raised issues or concerns; and https://apps.des.wa.gov/DESContracts/Home/MCUAListing

1.1.3.5 Provide on an Authorized Purchaser’s request such other reports as an Authorized Purchaser may request.

1.2 DEFINITIONS

“Agency” “State Agency” or “State Agencies” means one or more executive branch agencies of the State of Oregon that are boards, commissions, departments, or agencies whose costs are paid, in whole or in part, from funds held in the State Treasury

“Agreement” or “Master Services Agreement” means this agreement between Contractor and DAS PS under which Contractor agrees to hold prices and terms and conditions firm for a specified period of time for the benefit of Authorized Purchaser.

“Authorized Purchaser” means any Agency of the State of Oregon, any participant in the Oregon Cooperative Purchasing Program (ORCPP), and any those Washington Master Contracts Use Organizations CUA Listing (wa.gov) as permitted under the Interstate Cooperate Agreement by and between the State of Oregon and the State of Washington with appropriate purchasing authority under their applicable statutes, rules, regulations, or ordinances.

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

“Calendar Day” means contiguous days.

“Contract” means the entire agreement between Contractor and an Authorized Purchaser, comprised of an Order and this Agreement, including any exhibits and amendments to this Agreement or an Order.

“Deliverable(s)” are all items that Contractor must deliver to Authorized Purchaser under a Contract.

“Department of Administrative Services, Procurement Services” (DAS PS) means the Agency with central procurement authority acting on behalf of the State of Oregon.

“Order” means a Purchase Order issued in conformance with this Agreement, or a request or Services made by an Authorized Purchaser via any other method authorized in advance in writing by DAS PS.

“Oregon Cooperative Purchasing Program (ORCPP) means the State of Oregon’s Cooperative Purchasing Program. ORCPP members are authorized to use DAS PS statewide agreements. ORCPP members include State Agencies not subject to DAS PS purchasing authority, cities, counties, school districts, special districts, Oregon Forward Businesses (formerly Qualified Rehabilitation Facilities), residential programs under contract with the Oregon Department of Human Services, United States governmental agencies, and American Indian tribes or agencies.

“Protected Class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability, or age.

“Purchase Order” means an ordering instrument between Authorized Purchaser and Contractor substantially in the form attached as Exhibit B that creates a Contract.

“Services” means the services, such as subscription, training, assessment and planning, content development, or maintenance and support services, described in Exhibit A that are available for purchase.

“Specifications” means the specific attributes of the Services as described in Exhibit A.

“State” means the State of Oregon.

“Statement of Work” means the document in a Contract that describes any custom Services. A Statement of Work will describe the tasks, deliverables, acceptance criteria, schedule, fees for fixed price deliverables, payment schedule, and any other items as agreed by the parties to the Contract.

1.3 TERM OF AGREEMENT

The initial term of this Agreement begins on the date this Agreement has been signed by DAS PS and Contractor and all required approvals have been obtained (the “Effective Date”) and ends five years after the Effective Date unless sooner terminated or extended as provided in this Agreement.

1.4 TERMINATION OF AGREEMENT

1.4.1 Mutual Consent. This Agreement may be terminated at any time by mutual written consent of DAS PS and Contractor.

1.4.2 DAS PS Right to Terminate. DAS PS may, in its sole discretion, terminate this Agreement, in whole or in part, for any reason upon 30 Calendar Days written notice to Contractor.

1.4.3 Effect of Termination.

1.4.3.1 Following the date of termination (including by expiration), Contractor shall not accept new Orders.

1.4.3.2 Termination of this Agreement does not terminate the rights or obligations of any party to a Contract executed before termination of this Agreement.

1.4.3.3 Termination of this Agreement closes accounts for online Orders and terminates Contracts that are “blanket” Orders in which Contractor is not legally required to deliver specific quantities of Services at specific times.

1.5 ORDERING

1.5.1 Firm Offer Established. This Agreement constitutes a firm offer by Contractor regardless of whether any Contract for Services is executed. This Agreement is enforceable as a firm offer pursuant to ORS 279B.140 for the Agreement term specified in Section 1.3, and all pricing in Exhibit A is valid until the Agreement expires or is terminated, unless the pricing is changed according to Section 1.6. Notwithstanding ORS 72.2050, obligations under this Agreement are not revocable by Contractor.

1.5.2 Ordering Method. Authorized Purchasers may purchase Services during the term of this

Agreement using an approved ordering method.

1.5.3 Reserved.

1.5.4 Reserved.

1.5.5 Ordering Instruments- State Agencies. Authorized Purchasers that are State Agencies must use one of the following as an ordering instrument:

1.5.5.1 The DAS PS approved Service Order Contract template attached as Exhibit B; or

1.5.5.2 An electronic ordering method authorized in advance in writing by DAS PS’ Contract Administrator to Contractor.

1.5.6 Ordering Instruments- Other Than State Agencies. Authorized Purchasers that are not State Agencies may use their own forms as ordering instruments, or an electronic ordering method authorized in advance in writing by DAS PS’ Contract Administrator to Contractor.

1.5.7 Order Requirements. To be effective, an Order must include at least all of the following:

1.5.7.1 Language stating that the Order is submitted under this Agreement (and include the Agreement reference number from the Agreement coversheet).

1.5.7.2 The specific Services and quantities of each item ordered.

1.5.7.3 Pricing for each Service purchased and the net price.

1.5.7.4 The requested delivery schedule and period of service.

1.5.7.5 The delivery method(s).

1.5.7.6 The invoicing address.

1.5.7.7 Authorized Purchaser’s Authorized Representative and relevant contact information, including email address and telephone number.

1.5.7.8 For any custom professional services, a Statement of Work. Prior to issuance of an Order, Authorized Purchaser and Contractor may negotiate the professional Services to be included in the Contract from the Description of Services set forth in Exhibit A, including but not limited to the cost of the Services.

1.5.8 Additional Optional Terms. Orders may also include:

1.5.8.1 Any terms required by a funding source (such as federal terms and conditions).

1.5.8.2 Any terms reflecting insurance requirements that are in addition to, higher, or both, if required by Authorized Purchaser.

1.5.9 Order Terms and Conditions. Except where this Agreement allows for Contract-specific terms and conditions, a Contract created by an Order consists only of the terms of this Agreement, including its exhibits and attachments. Additional, different, or conflicting terms and conditions in any Order or associated with an electronic order method will not modify or amend the terms. Any electronic or online ordering method is subject to Exhibit D, Agreement and Rider to Terms of Service.

1.5.10 Order Acceptance. Subject to the provisions of this Agreement, Contractor shall accept Orders from Authorized Purchasers that comply with the provisions of this Agreement until this

Agreement terminates. Contractor may, but is not required to, accept an Order requesting a delivery schedule less than any minimum lead time, if any, specified in Exhibit A.

1.5.10.1 An Order is deemed accepted by Contractor unless Contractor rejects it within five (5) Business Days after it is received. Contractor may reject an Order: i) using the same means as were used to deliver the Order, or ii) by e-mail if that information is evident on the ordering instrument.

Contractor shall specify the reason(s) for rejection.

1.5.11 Accepted Orders are Contracts. Accepted Orders establish separate Contracts between Authorized Purchasers and Contractor and include the terms set forth in Sections 2 and 3.

1.5.12 DAS PS not liable. DAS PS is not obligated or liable under an Order unless DAS PS is purchasing Services as an Authorized Purchaser.

1.5.13 No Guarantee of Orders: Not Exclusive. Nothing in this Agreement obligates any Authorized Purchaser to place any Order, and this Agreement is not exclusive. Each Authorized Purchaser retains the right to contract for Services through any selection process authorized by law, or to perform the Services itself.

1.5.14 Rejection. Contractor shall reject an Order:

1.5.14.1 That does not meet the requirements of this Agreement.

1.5.14.2 From any entity that is not an Authorized Purchaser under this Agreement.

• Contractor may verify that Authorized Purchasers are ORCPP participants at the following address:

http://www.oregon.gov/das/Procurement/Pages/Orcppmember.aspx.

• Contractor may verify that Washington Master Contracts Use Organizations are permitted under the Interstate Cooperate Agreement by and between the State of Oregon and the State of Washington at the following address: CUA Listing (wa.gov).

1.6 PRICES

1.6.1 Except as provided in this Section 1.6, during the Term of this Agreement, Contractor shall offer Services to Authorized Purchasers at prices that do not exceed the prices listed in Exhibit A.

1.6.2 Contractor and Authorized Purchaser may agree to lower prices for Services. Those lower prices apply only to the applicable Contract between Contractor and Authorized Purchaser.

1.6.3 Price Decreases

Contractor shall give Authorized Purchasers the immediate benefit of any price decrease that Contractor offers to any other customer. Contractor shall promptly notify Authorized Purchasers of the amount and effective date of each decrease. This decrease applies to Orders placed on or after the effective date of the decrease, and to any ongoing Services under an active Contract.

1.6.3.1 Should such decreased prices again increase during the term of this Agreement, including any extensions, DAS PS will honor the request for increase if acceptable documentation verifying the increase is submitted to DAS PS. DAS PS retains sole discretion to determine what constitutes acceptable documentation.

http://www.oregon.gov/das/Procurement/Pages/Orcppmember.aspx

1.6.3.2 Contractor shall subtract from prices charged to an Authorized Purchaser any unit price decrease that has been achieved or gained by Contractor, whether through the publisher or otherwise. Contractor shall give Authorized Purchaser the immediate benefit of the decrease.

Contractor shall promptly notify DAS PS of the amount and effective date of the decrease.

1.6.4 Other Price Adjustments

Subject to the following, either party to this Agreement may request a price adjustment, in whole or in part.

1.6.4.1 Contractor may request price increases from DAS PS no more often than once per calendar year, commencing one year after the Effective Date of this Agreement. Contractor must submit a request to DAS PS in writing at least 60 Calendar Days before the proposed effective date of the increase. The request must show all proposed increases by line item and include supporting documentation acceptable to DAS PS. DAS PS may require Contractor to provide U.S. Bureau of Labor Statistics Producer Price Index or Consumer Price Index data or any other relevant manufacturer or industry data substantiating the increase. A price increase may not produce a higher profit margin for Contractor than at the beginning of the initial term of this Agreement, and no increase may exceed 3% of the price immediately before the increase.

1.7 VOLUME SALES REPORT (VSR) AND VENDOR COLLECTED ADMINISTRATIVE FEE (VCAF)

During the term of the Agreement, as directed by DAS PS Contractor must submit a VSR that outlines total dollars spent by each Authorized Purchaser during the previous reporting period. Contractor shall use the sales information from this report to calculate and remit a VCAF to be paid to DAS PS equal to 2% of Contractor’s Gross Sales, less any credits, made to Authorized Purchasers during the reporting period during the term of this Agreement pursuant to the process defined by DAS PS found at:

https://www.oregon.gov/das/Procurement/Pages/Supplier.aspx

1.8 REPORTING REQUIREMENTS

Contractor shall complete itemized reporting that verifies its VSR. Itemized tracking including quarterly reports is necessary, along with regular reports that can be sorted by Authorized Purchaser, including product, volume, spend, and sustainability attribute. The reports must clearly identify the sustainability criteria each product meets, particularly those certifications and standards that are referenced in the product specifications.

These reports must include at least the following information:

1.8.1 State of Oregon Agreement number;

1.8.2 Usage broken down by Authorized Purchaser, political subdivision and location;

1.8.3 Number of Orders placed;

1.8.4 Total dollar value of Orders placed during the reporting period;

1.8.5 Average value of each Order; and

https://www.oregon.gov/das/Procurement/Pages/Supplier.aspx

1.8.6 Number of Orders with ongoing delivery of Services.

1.9 INSURANCE

Contractor shall obtain insurance coverage as specified in Exhibit C and shall maintain the insurance throughout the term of this Agreement and all Contracts. An Authorized Purchaser may require higher insurance amounts, additional insurances, or both, in a Contract.

1.10 CHOICE OF LAW

The laws of the State of Oregon (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to this Agreement, including, without limitation, its validity, interpretation, construction, performance, and enforcement.

1.11 DESIGNATION OF FORUM AND CONSENT TO JURISDICTION

A party bringing a legal action or proceeding against any other party arising out of or relating to this Agreement shall bring the legal action or proceeding in the Circuit Court of the State of Oregon for Marion County. Each party hereby consents to the exclusive jurisdiction of such court, waives any objection to venue, and waives any claim that such forum is an inconvenient forum.

1.12 AMENDMENTS

No amendment to this Agreement is valid unless it is in writing and signed by the parties. Any amendment that provides for additional Services may only provide for Services directly related to the scope of goods and services described in RFP S-10700-00010015. Either DAS PS or Contractor may request a change to this Agreement, including to any of its exhibits, by submitting a written proposal describing the desired change to the other party.

1.13 TRANSFER

Contractor shall not assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without first obtaining the written consent of DAS PS. DAS PS’s consent to any subcontract (or other delegation of duties) does not relieve Contractor of any of its duties or obligations under this Agreement. This Agreement is binding upon and inures to the benefit of each of the parties, and, except as otherwise provided, their permitted legal successors and assigns.

1.14 COUNTERPARTS

This Agreement may be executed in two or more counterparts, each of which is an original, and all of which together are deemed one and the same instrument, notwithstanding that all parties are not signatories to the same counterpart.

1.15 FORCE MAJEURE

Neither party will be in default under this Agreement for nonperformance that is caused by an extraordinary event or circumstance (other than an increase in costs, or other change in general economic conditions), whether or not foreseeable, resulting from causes beyond the reasonable control of the party claiming a force majeure event.

1.15.1 The obligations of the party claiming force majeure are suspended to the extent of and for the duration of such event. However, Contractor must demonstrate it has made reasonable efforts to perform, and that the delay or inability to perform is not due to its failure to protect itself against events or circumstances of the same type as the force majeure event, or its failure to develop and maintain a reasonable contingency plan to respond to events or circumstances of the same type as the claimed force majeure event. Contractor shall make all good faith efforts to eliminate the cause of any such delay, and upon the cessation of such cause resume performance of its obligations with all reasonable diligence.

1.15.2 DAS PS may terminate this Agreement upon written notice after determining any delay associated with a claim of force majeure by either party will reasonably prevent successful performance under this Agreement.

1.16 ENTIRE AGREEMENT

This Agreement, together with the attached exhibits, constitutes the entire agreement between the parties and merges all prior and contemporaneous communications with respect to the subject matter.

1.17 NOTICES

Except as otherwise provided in this Agreement, any communications between the parties or notices to be given under this Agreement must be given in writing by email, personal delivery, or mailing the same, postage prepaid, to Contractor or DAS PS at the email address, postal address or telephone number set forth on the first page of this Agreement, or to such other addresses or numbers as either party may indicate pursuant to this section. Any communication or notice so addressed and mailed is effective five Business Days after mailing. Any communication or notice given by personal delivery is effective when actually delivered. Any notice given by email is effective when the sender receives confirmation of delivery, either by return email, or by demonstrating through other technological means that the email has been delivered to the intended email address.

1.18 INTENDED BENEFICIARIES

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

1.19 REPRESENTATIONS AND WARRANTIES

The warranties set forth in this Section 1.19 are in addition to, and not in lieu of, any other warranties provided in this Agreement or in any Contract. Contractor represents and warrants to DAS PS that:

1.19.1 Contractor is not an “officer,” “employee,” or “agent” of DAS PS or any Authorized Purchaser, as those terms are used in ORS 30.265.

1.19.2 Contractor fully understands and will perform its obligations under this Agreement.

1.19.3 Contractor is qualified to do business in the State of Oregon and will remain qualified throughout the Agreement term.

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

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

1.19.6 Contractor shall comply with all federal, state, and local laws, ordinances, rules, regulations, and executive orders, as may be adopted, or modified from time to time and as applicable to its performance under this Agreement.

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

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

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

1.19.10 Contractor (to the best of Contractor’s knowledge), for a period of no fewer than six calendar years preceding the Effective Date, faithfully has complied with:

1.19.10.1 All tax laws of this state, including but not limited to ORS 305.380(4), ORS 305.620 and ORS chapters 316, 317, and 318;

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

1.19.10.3 Any tax provisions imposed by a political subdivision of this state that applied to Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor; and

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

1.19.11 Contractor possesses and will maintain at its own expense all required licenses, certifications and permits necessary to deliver Services under all Contracts.

1.19.12 Contractor has the power and authority to enter into and perform this Agreement and all Contracts.

1.19.13 When used as authorized under any Contract, no Services or Deliverables infringe nor will Authorized Purchaser’s use of the Services or Deliverables infringe any copyright, patent, trade secret or other proprietary right of any third party.

1.20 WAIVER

The failure of DAS PS to enforce any provision of this Agreement or the waiver of any violation or nonperformance of this Agreement in one instance does not constitute a waiver by DAS PS of that or any other provision nor is it a waiver of any subsequent violation or nonperformance. Such failure to enforce or waiver, if made, is effective only in the specific instance and for the specific purpose given.

1.21 CERTIFICATION OF COMPLIANCE WITH TAX LAWS

By signature on this Agreement, Contractor certifies that it has complied with the tax laws of this State and the applicable tax laws of any political subdivision of this State. Contractor shall, throughout the duration of this Agreement and any Contract, comply with all tax laws of this State and all applicable tax laws of any political subdivision of this State. For the purposes of this section, “tax laws” includes: (i) All tax laws of this State, including but not limited to ORS 305.620 and ORS chapters 316, 317, 318 and 319;

(ii) Any tax provisions imposed by a political subdivision of this State that apply to Contractor, to Contractor’s property, operations, receipts, or income, or to Contractor’s performance of or compensation for any work performed by Contractor; (iii) Any tax provisions imposed by a political subdivision of this State that apply to Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor; and (iv) Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions.

Any failure to comply with the provisions of this Section 1.21 constitutes a material breach of this Agreement and any Contract. Any failure to comply entitles DAS PS to terminate this Agreement and any Contract, and to pursue and recover any and all damages that arise from the breach and the termination, and to pursue any or all of the remedies available under this Agreement or a Contract, at law, or in equity, including but not limited to:

1.21.1 Termination of this Agreement or Contract, as applicable, in whole or in part;

1.21.2 Exercise of the right of setoff, and withholding of amounts otherwise due and owing to Contractor, in an amount equal to State’s or Authorized Purchaser’s setoff right, without penalty; and

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

1.21.3.1 Contractor shall, to the maximum extent economically feasible in the performance of this Agreement, use recycled products where possible. This includes paper, “PETE” and other materials as defined in ORS 279A.010 [1][gg], [hh] and [ii].

1.21.3.2 Contractor shall retain, maintain, and keep accessible all records relevant to this Agreement (the “Records”) for a minimum of six years, or such longer period as may be required by applicable law following expiration or termination of the Agreement, or until the conclusion of any audit, controversy or litigation arising out of or related to the Agreement and each Contract, whichever date is later. Financial Records will be kept in accordance with Generally Accepted Accounting Principles (GAAP). During the record-retention period established in this section, Contractor shall permit DAS PS and each Authorized Purchaser and its duly authorized representatives, and the federal government, access to the Records at a reasonable time and place for purposes of examination and copying.

1.22 PERFORMANCE EVALUATIONS

DAS PS may conduct evaluations of Contractor’s performance during the term of this Agreement. DAS PS will compile and maintain completed evaluations, which will become a written record of Contractor’s performance. DAS PS may also maintain as part of that written record information obtained from Contractor during an exit interview following Agreement termination. DAS PS may provide copies of any documents in the written record to Contractor and third parties upon request. DAS PS may use performance evaluations in any way it deems necessary, in its sole discretion, including but not limited to making responsibility determinations and decisions to award contracts.

1.23 OREGON DEPARTMENT OF REVENUE REPORTING

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

STANDARD TERMS FOR CONTRACTS UNDER THIS AGREEMENT

2.1 CONTRACT DOCUMENTS; ORDER OF PRECEDENCE

The Contract consists of the Order and the provisions in Sections 2 and 3 of this Agreement, and any terms allowable under Section 1.5. In the event of a conflict between the Contract and provisions in Sections 2 and 3, unless a Contract specifies otherwise, the provisions in Sections 2 and 3 take precedence.

2.2 PAYMENT

2.2.1 Contractor shall look solely to Authorized Purchaser for payment of all amounts that may be due under this Contract. AUTHORIZED PURCHASER IS SOLELY RESPONSIBLE FOR PAYMENT UNDER

THIS CONTRACT.

2.2.2 Authorized Purchasers will pay Contractor for Services and associated Deliverables according to the payment methodology specified in the Contract. Authorized Purchasers will pay Contractor only for Services and Deliverables that Contractor has delivered or completed and that Authorized Purchaser has accepted.

2.2.3 Subject to Authorized Purchaser’s acceptance of Services and Deliverables, Authorized Purchaser will issue payment for correct, undisputed invoices within 45 Calendar Days after the date of receipt of the invoice.

2.2.4 Authorized Purchaser will not pay or reimburse any expenses incurred by Contractor except as authorized in the Contract and approved in advance by Authorized Purchaser. If Authorized Purchaser is a State Agency, any authorized travel expenses must comply with the Oregon Accounting Manual.

2.3 OVERDUE CHARGES

Contractor may assess a late fee of up to a maximum rate of two-thirds of one percent per month (8% per annum) on any outstanding balance. All payments are subject to ORS 293.462.

2.4 PAYMENT ADDRESS

Authorized Purchaser will send payments to the address specified in Contractor’s invoice.

2.5 INVOICES

Contractor shall submit an invoice to Agency’s Contract Administrator, no more frequently than once per month, for Services accepted in accordance with the Contract. Each invoice must include at least:

2.5.1 The Agreement number.

2.5.2 The Contract number.

2.5.3 The Services ordered.

2.5.4 Date(s) Services delivered or accepted, as applicable.

2.5.5 Itemized Services performed.

2.5.6 The price(s) for the Services.

2.5.7 The total amount invoiced.

2.5.8 The address to which payment is to be sent.

2.6 FUNDS AVAILABLE AND AUTHORIZED

If Authorized Purchaser is a State Agency, payment obligations under a Contract are conditioned upon Authorized Purchaser receiving funding, appropriations, limitations, allotments, or other expenditure authority sufficient to allow Authorized Purchaser, in the exercise of its reasonable administrative discretion, to meet its payment obligations under a Contract. At the time the Order was issued, Authorized Purchaser had sufficient funds available and authorized to make payments under a Contract.

2.7 PRICES

Contractor represents and warrants that it offers Services to Authorized Purchasers at prices that do not exceed the prices listed in Exhibit A.

2.8 CANCELATION, DELIVERABLE REVIEW, ACCEPTANCE TESTING

2.8.1 Right to Cancel. Authorized Purchaser may cancel an Order in whole or in part before Services are delivered or commenced.

2.8.2 Delivery and Review of Deliverables. Contractor shall deliver any Deliverables set forth in a Contract by no later than the date or dates set for delivery. Delivery dates, both critical and non-critical, are set forth in the applicable Statement of Work and are subject to Authorized Purchaser performing its responsibilities in a timely manner. A Contract may specify different timelines for review and modification of Deliverables. No Contract may provide for automatic acceptance of a Deliverable.

2.8.2.1 Contractor shall provide written notice to Authorized Purchaser upon delivery of a completed Deliverable to Authorized Purchaser. By no later than (i) 15 Business Days after receipt of such notice, or (ii) the date set forth for Authorized Purchaser’s review under the Statement of Work, Authorized Purchaser will determine whether the Deliverable meets its acceptance criteria. Acceptance criteria includes all requirements for a Deliverable and associated Services described in the Contract, and the Performance Warranties in Section 2.12. With respect to any Deliverables that are susceptible to Acceptance Testing, Authorized Purchaser will conduct Acceptance Testing as set forth in Section 2.8.3. If Authorized Purchaser determines that the Deliverable meets, in all material respects, its acceptance criteria, Authorized Purchaser will notify Contractor of Authorized Purchaser’s acceptance in writing.

2.8.2.2 If Authorized Purchaser determines that a Deliverable does not meet its acceptance criteria in all material respects, Authorized Purchaser will notify Contractor in writing of Authorized Purchaser’s rejection of the Deliverable, and describe in reasonable detail in such notice Authorized Purchaser’s basis for rejection of the Deliverable. Upon receipt of notice of non-acceptance, Contractor shall, within 15 Business Day period, modify or improve the Deliverable at Contractor’s sole expense so that the Deliverable meets its acceptance criteria in all material respects, and notify Authorized Purchaser in writing that it has completed such modifications or improvements and re-tender the Deliverable to Authorized Purchaser.

Authorized Purchaser will thereafter review the modified or improved Deliverable within 15 Business Days of receipt of the Contractor's re-delivery. Failure of the Deliverable to meet its acceptance criteria in all material respects after the second submission will constitute a default by Contractor. In the event of such default, Authorized Purchaser may either (i) notify Contractor of such default or instruct Contractor to modify or improve the Deliverable as set forth in this section, or (ii) or notify Contractor of its default under Section 2.18 and pursue its available remedies.

2.8.3 Acceptance Testing. Authorized Purchaser will begin acceptance testing of the Services upon receipt and/or installation, as appropriate. Unless otherwise agreed in a Statement of Work, Authorized Purchaser has a 30 Calendar Day period from the date installation is completed to determine if the Services meet or exceed the requirements of the Contract, inclusive of all specifications and any acceptance criteria in a Statement of Work (Acceptance Test Period).

2.8.3.1 On or before the last date of the Acceptance Test Period, Authorized Purchaser will notify Contractor in writing regarding whether the Services have passed or failed acceptance testing.

If the criteria of acceptance testing are met, then Authorized Purchaser ’s notification will be of Authorized Purchaser ’s acceptance. If the criteria for acceptance testing are not met, Authorized Purchaser will give Contractor written notice of the rejection and describe the failures in reasonable detail.

2.8.3.2 In the event of failure of acceptance testing, Authorized Purchaser, at its sole option, may either (i) cancel the Order, and Contractor shall provide a full refund; or (ii) allow Contractor a set period of time to replace, modify, or repair the Services, at no additional cost to Authorized Purchaser, to make the non-conforming Services conform to the requirements of this Contract and all specifications and acceptance criteria. Following replacement, modification, or repair, Authorized Purchaser will have a further Acceptance Test Period in accordance with Section

2.8.2. If the Services fail the Acceptance Test Period a second time, Authorized Purchaser may exercise its options available under this Section 2.8 or notify Contractor of its default under Section 2.18 and pursue its available remedies.

2.9 LICENSING AND TERMS

2.9.1 Contractor Intellectual Property. “Contractor Intellectual Property” means any intellectual property that is owned by Contractor and contained in or necessary for the use of the Services.

Contractor Intellectual Property includes software and applications owned by Contractor, inclusive of Services available for purchase under Exhibit A of the Agreement, documentation, and derivative works and compilations of any Contractor Intellectual Property.

2.9.1.1 Contractor retains ownership of all Contractor Intellectual Property that Contractor delivers to Authorized Purchaser pursuant to the Contract. Contractor hereby grants Authorized Purchaser a license to or rights to use Deliverables and software and online services for the term described in the Contract, as described in Exhibit D of the Agreement.

2.9.2 Third Party Intellectual Property. In the event the Services include Third Party Intellectual Property and unless otherwise agreed, Contractor shall ensure that Authorized Purchaser receives a license to use the intellectual property sufficient to fulfill its business objectives, and the requirements and specifications for the Services. Authorized Purchaser has the right to review the proposed license agreement and negotiate terms with the licensor. If Authorized Purchaser and licensor cannot reasonably agree to terms, Authorized Purchaser, in its sole discretion, may cancel the Services (without incurring any termination liability), and Contractor shall provide a full refund.

2.9.3 Authorized Purchaser Intellectual Property. “Authorized Purchaser Intellectual Property” means any intellectual property that is owned by Authorized Purchaser, inclusive of Authorized Purchaser

Data. “Authorized Purchaser Data” means information created and information stored by Authorized Purchaser through its use of the Services, and information created and collected by Contractor regarding Authorized Purchaser and its clients during the course of providing the Services, including Personal Information as defined in Section 2.10.2.

2.9.3.1 Authorized Purchaser owns all Authorized Purchaser Intellectual Property, including Authorized Purchaser Data, provided to or collected by Contractor pursuant to this Contract.

Authorized Purchaser grants Contractor a non-exclusive, royalty-free, world-wide license to use, copy, display, distribute, transmit and prepare derivative works of Authorized Purchaser Intellectual Property, including Authorized Purchaser Data only to fulfill the purposes of this Contract. Authorized Purchaser’s license to Contractor is limited by the term of the Contract and the confidentiality and security obligations of this Contract.

2.9.4 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 Section 2.9.

2.10 CONFIDENTIAL INFORMATION; OREGON PUBLIC RECORDS LAWS.

2.10.1 Confidential Information. Contractor acknowledges that it and its employees, officers, directors, agents or subcontractors may, in the course of performing under this Contract, be exposed to or acquire information that is confidential to the State of Oregon or Authorized Purchaser. Any and all information of any form (including but not limited to records, files, papers, materials, documents, and communications in written, verbal, oral and electronic form) that Contractor may come into contact with or that is obtained by Contractor in the performance of this Contract is confidential information (Confidential Information). Contractor shall cause its employees and subcontractors or agents to treat any reports or other documents or items (including software) that result from the use of the Confidential Information in the same manner as the Confidential Information.

2.10.2 Consumer Information. Confidential information includes Authorized Purchaser Data that is “Personal Information” protected under the Oregon Consumer Information Protection Act (ORS 646A.600 et. seq.). Contractor will maintain, operate, and enforce, prior to the receipt of, and during the period in which Contractor has possession of or access to, any Personal Information, an active and effective information security program that at minimum complies with the requirements of OCIPA to to preserve the security and confidentiality of all Personal Information that is contained in any document, record, compilation of information or other item to which Contractor receives access, possession, custody, or control.

2.10.3 Non-Disclosure. Contractor shall hold, and shall cause its employees, subcontractors and agents to hold, all Confidential Information in confidence, using the highest standard of care applicable, and shall not copy, reproduce, sell, assign, license, market, transfer, distribute, or otherwise dispose of, give, make available or disclose, in whole or in part, directly or indirectly, Confidential Information to third parties (other than its authorized subcontractors), or use Confidential Information for any purposes whatsoever other than the performance under this Contract, and shall advise its employees, subcontractors and agents of their obligations to keep Confidential

Information confidential. Contractor shall assist Authorized Purchaser in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Contractor shall advise Authorized Purchaser 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 Authorized Purchaser in seeking injunctive or other equitable relief in the name of Authorized Purchaser or Contractor against any such person. Contractor shall not at any time during or after the term of this Contract, except as directed by Authorized Purchaser, disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this Contract. Upon expiration or termination of this Contract or at Authorized Purchaser’s request, Contractor shall deliver to Authorized Purchaser 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.

2.10.4 Contractor Proprietary Information; Oregon Public Records Laws. 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 Calendar Days of disclosure. Any obligation of Authorized Purchaser to maintain the confidentiality of Contractor’s proprietary information is conditioned by and subject to Authorized Purchaser'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. If Authorized Purchaser receives from a third party any request under the Oregon Public Records Law for the disclosure of Contractor proprietary information, Authorized Purchaser 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 Authorized Purchaser is not required to actively assist Contractor in opposing disclosure of proprietary information, Authorized Purchaser will cooperate in good faith to the extent reasonably practicable with Contractor’s efforts to protect its proprietary information.

2.10.4.1 Exceptions. The obligations of non-disclosure do not apply to information that (i) is or becomes (other than by disclosure by Contractor acquiring such information) publicly known or is contained in a publicly available document except to the extent applicable law still restricts disclosure; (ii) is furnished by others without restrictions similar to those imposed by this Contract; (iii) is rightfully in a party’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Contract; (iv) is obtained without the obligation of confidentiality, (v) is disclosed with the written consent of the disclosing party, or; (vi) is independently developed by a party and can be shown to have had no access to the Confidential Information.

2.10.5 Injunctive Relief. Disclosure of the Confidential Information of either party may cause irreparable injury that is inadequately compensable in damages. Accordingly, either party 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. The covenants contained in this

Section 2.10 are necessary for the protection of the legitimate business interests of each party and are reasonable in scope and content.

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

2.11 REPRESENTATIONS AND WARRANTIES

2.11.1 General Warranties. Contractor represents and warrants to Authorized Purchaser that:

2.11.1.1 Contractor has the power and authority to enter into and perform this Contract.

2.11.1.2 This Contract, when executed and delivered, is a valid and binding obligation of Contractor enforceable in accordance with its terms.

2.11.1.3…