RFP_Attachment_A_SampleMasterServicesAgreement~1.pdf

RFP S-10700-00015442 – Environmental Analytical Laboratory Services Att A

Master Services Agreement

Attachment A Sample Master Agreement

Master Services Agreement # _________

This Master Services Agreement (“MSA”) is between the State of Oregon (“State”) acting by and through its Department of Administrative Services, State Procurement Services, (“DAS SPS”) on behalf of state agencies and members of the Oregon Cooperative Purchasing Program (“Authorized Purchasers ”) and _________________, (“Contractor”) for Environment Analytical Laboratory Services.

Recitals

A. DAS SPS desires to engage Contractor through this MSA to make available to DAS SPS and other Authorized Purchasers certain Environmental Analytical Laboratory Services, as described on Exhibit B (“Services”).

B. On ____________, DAS SPS issued RFP # S-10700-00015442 to provide authority to directly award contracts to Contractor and other providers of the Services.

C. Contractor desires to provide the Products and perform the Services for DAS SPS, agencies of the State of Oregon that are subject to DAS SPS procurement authority according to ORS 279A.050 and 279A.140 and that are authorized to use this MSA through a delegation of authority according to OAR 125-246-0170 (“Authorized Agencies”), and any non-Authorized Agency participant in the Oregon Cooperative Purchasing Program operated by DAS SPS (“ORCPP Member”), pursuant to the terms of this MSA. DAS SPS, Authorized Agencies and ORCPP Members are collectively referred to as “Authorized Purchasers (AP).”

Agreement

DAS SPS and Contractor agree as follows:

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

1.1. the form of the ordering instruments to be used by Authorized Purchasers and Contractor to enter contracts for Services, including: Work Order Contracts (“WOCs”) or other ordering instruments (collectively, “Contracts”);

1.2. the terms and conditions applicable to Contracts;

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

1.4. the pricing applicable to Contracts.

Authorized Purchasers and Contractor will enter into binding and enforceable contracts for Services by execution of Contracts, substantially in the form attached hereto as Exhibit D or other ordering instruments as agreed upon by the Authorized Purchaser and Contractor.

Each Contract will specify the Services to be performed with in the awarded MSA, the associated deliverables to be delivered.

DAS SPS reserves discretion to re-open or readvertise the competition to provide Services that are the same or similar to those described in this Agreement, if necessary to serve the interests of Authorized Purchasers, at intervals no more frequently than on a yearly basis.

Previously awarded Contractors, with active MSAs, will not be required to submit a Proposal in response to the re-opened or readvertised competition.

2. Effective Date and Term. This MSA is effective on the date that it has been executed by DAS SPS and Contractor and has been approved as required by applicable law (“Effective Date”). Unless terminated or extended, this MSA expires on ___________________ (“MSA term”).

DAS SPS and Contractor may extend this MSA by written agreement. MSA expiration or termination does not extinguish or prejudice DAS SPS’ right to enforce this MSA with respect to any Contractor breach or any default or defect in Contractor performance that has not been cured.

3. MSA Documents. This MSA includes the MSA and its exhibits which are attached and incorporated by reference. If a conflict, inconsistency or ambiguity exists among any portion of this MSA and any other documents, then the issue must be interpreted in the following order of precedence:

1) This MSA less all exhibits;

2) Exhibit D, Federal Terms and Conditions;

3) Exhibit A, Contract Terms;

4) Exhibit B, Description of Services, Specifications;

5) Exhibit C Pricing;

6) Exhibit E, Work Order Contract Form including all exhibits.

4. Firm Offer Established; Pricing Changes.

4.1. Firm Offer Established. This MSA constitutes a firm offer by Contractor regardless of whether any Contract for Services is executed. This MSA is enforceable as a firm offer pursuant to ORS 279B.140 for the MSA term specified in section 2, and all pricing in Exhibit C is valid until the MSA expires or is terminated, unless the pricing is changed according to subsection 4.2.

4.2. Pricing Changes. Contractor shall keep pricing specified in Exhibit C fixed for at least the first twelve (12) full months of this MSA. Thereafter, DAS SPS and Contractor may adjust pricing no more than once annually by MSA amendment. Contractor shall submit all pricing adjustment requests to DAS SPS in writing and provide substantiating evidence that each request is based on demonstrable market changes impacting the cost of the Services. Pricing changes will apply to Contracts and amendments to Contracts entered on and after the effective date of the pricing change.

5. Non-exclusive MSA; Contractor Selection.

5.1. Non-exclusivity. This MSA 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. Neither DAS SPS nor any other Authorized Purchaser guarantees that any specific number of Contracts will be entered or that any specific amount of Services will be required.

5.2. Contractor Selection. In the event DAS SPS awards more than one Master Services Agreement, Authorized Purchaser must conduct a best value comparison process to select the contractor for award based upon various factors, including: cost, Services availability, time of performance, or other factors.

Authorized Purchaser shall issue a request for quote to all Master Services Agreement holders within the category of Service detailing the Service need and evaluation criteria, including but not limited to:

• Service availability;

• Time for delivery or performance;

• Costs;

• Contractor's qualifications to complete any unique analysis;

• Contractor's specialized testing capabilities;

• Contractor’s process, policy or procedure for addressing APs’ issue with performance or complaints;

• Contractor’s geographic location that would be most advantageous to the AP or to the effectiveness of the Contractor’s performance of the Environmental Analytical Laboratory Services requested; and

• Contractor's past performance.

Authorized Purchaser shall award the Contract to the contractor with the offer that is in the best interest of Authorized Purchaser.

6. Signed Contract Required for Services.

6.1. Contract Form. DAS SPS and Authorized Purchaser shall use the ordering instrument substantially in the form attached hereto as Exhibit D or other ordering instrument as agreed upon by the Authorized Purchaser and Contractor. Contracts must specify all of the Mandatory Service Order Language and Information set forth in Section 6.3.

6.2. Contract Negotiation. Prior to signing a Contract, Authorized Purchaser and Contractor may negotiate the Services to be included in the Contract from the Description of Services set forth in Exhibit B, including but not limited to the cost of the Services.

Authorized Purchaser and Contractor may negotiate a fixed price or maximum amount payable for the Services or both under the Contract based on the pricing specified in Exhibit C. Contractor’s pricing under any resulting Contract shall not exceed the pricing specified in Exhibit C.

6.3. Contract Content. Authorized Purchasers complete the best value selection process set forth in section 5.2 above and must submit a Contract to the selected contractor that specifies all of the following:

6.3.1. Language stating that the Contract is submitted under this MSA and the MSA number;

6.3.2. Language incorporating all Contract terms and conditions of Exhibit A into the Contract, which may be modified by ORCPP Members only for consistency with applicable law;

6.3.3. Clear description of the required Services and associated deliverables including notification processes, required documentation, deliverable acceptance process;

6.3.4. Rates and maximum amount payable for the Services (including travel and other expenses);

6.3.5. Required delivery schedule for the Services;

6.3.6. Invoicing address; and

6.3.7. Name of Authorized Purchaser’s authorized representative and contact information for that individual, including telephone number and e-mail address.

6.4. Contract Rejection. Contractor shall reject Contracts that do not comply with this section 6. Contractor also shall reject Contracts that are not from Authorized Purchasers.

Contractor may verify ORCPP Members at: http://www.oregon.gov/DAS SPS/SSD/SPO/index.shtml.

6.5. Contract Creation. Each fully executed Contract creates a separate contract between Authorized Purchaser and Contractor that is enforceable according to its terms and is independent of all other executed Contracts. Each Contract consists only of the terms specified for Contracts in this MSA and no other terms, regardless of source. DAS SPS is an intended beneficiary under each Contract between Authorized Purchasers and Contractor. DAS SPS is not obligated or liable to Contractor under any Contract unless DAS SPS is purchasing the Services as the Authorized Purchaser.

6.6. Authorized Purchasers’ Liability under Contracts. Contractor shall look solely to the Authorized Purchaser for any rights and remedies Contractor may have at law or in equity arising under any Contract between Contractor and the Authorized Purchaser.

Contractor acknowledges and agrees that DAS SPS is not liable to Contractor under any Contract entered into between Contractor and an Authorized Agency or an ORCPP Member unless DAS SPS is purchasing the Services as the Authorized Purchaser.

http://www.oregon.gov/DAS/SSD/SPO/index.shtml http://www.oregon.gov/DAS/SSD/SPO/index.shtml

7. Payment. Authorized Purchasers will pay Contractor for Services and associated deliverables according to the payment methodology specified in the applicable Contract.

Authorized Purchasers will pay Contractor only for Services that Contractor has delivered or completed and Authorized Purchaser has accepted.

8. Services; Pricing. Attached hereto as Exhibit B is a list of the Services and Exhibit C, applicable price available pursuant to this MSA.

9. Volume Sales Report and Vendor Collected Administrative Fee. Contractor shall submit Volume Sales Reports (VSRs) and submit Vendor Collected Administrative Fees (VCAF) as outlined at: https://www.oregon.gov/das/Procurement/Pages/Supplier.aspx.

The VSR shall be submitted in the format substantially similar to Attachment A, Exhibit E.

The VCAF is a charge equal to 2.0% of Contractor’s gross total sales commissions, less any credits, made to Authorized Purchasers during the reporting period.

DAS SPS may terminate this MSA pursuant to section 13.3 if Contractor fails to deliver a VSR according to this section 9.

10. Representations and Warranties: Contractor represents and warrants to DAS SPS that:

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

10.2. Contractor fully understands and will perform its obligations under this MSA;

10.3. Contractor is qualified to do business in the State of Oregon and will remain qualified throughout the MSA term;

10.4. 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 MSA;

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

10.6. Contractor will 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 MSA;

10.7. 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 https://www.oregon.gov/das/Procurement/Pages/Supplier.aspx the Services, and Contractor’s provision of the Services shall not violate any such law, ordinance, regulation or order;

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

10.9. Contractor represents and warrants that the personnel providing services under this MSA 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 MSA;

that Contractor makes all other applicable tax and related payments arising from that employment (including without limitation social security tax payments); and that Contractor provides employee benefits to its employees, including without limitation health insurance benefits, vacation benefits, and retirement benefits;

10.10. Contractor (to the best of Contractor’s knowledge), for a period of no fewer than six (6) calendar years preceding the Effective Date, faithfully has complied with:

10.10.1. Any state taxes administered by the Oregon Department of Revenue (DOR) under the tax laws of this state and local taxes administered by DOR under ORS 305.620;

10.10.2. 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;

10.10.3. 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

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

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

10.12. Contractor has the power and authority to enter into and perform this MSA and all Contracts;

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

10.14. Contractor has the skill and knowledge possessed by well-informed members of its trade or profession and Contractor will apply that skill and knowledge with care and diligence so Contractor and Contractor’s employees and any authorized subcontractors perform the Services described in this MSA in accordance with the highest standards prevalent in the industry or business most closely involved in providing the Services and Contractor shall, at all times during the term of this MSA and any Contract, be qualified, professionally competent, and duly licensed to perform the Services;

10.15. The Products will materially conform to acceptance criteria set forth in the MSA and the Contract, including the Statement of Work and any Documentation provided by Contractor, and are free from error or defect that materially impairs their use, and be free from material defects in materials, workmanship, or design;

10.16. Except as otherwise provided in this MSA or a Contract, Contractor shall transfer all Products to Authorized Purchaser free and clear of any and all restrictions on or conditions of transfer, modification, licensing, sublicensing, direct or indirect distribution, or assignment, and free and clear of any and all liens, claims, mortgages, security interests, liabilities, and encumbrances of any kind;

10.17. The Products and Services are free of what are commonly defined as viruses, backdoors, worms, spyware, malware and other malicious code that will hamper performance of the software, collect unlawful personally identifiable information on users, or prevent the software from performing as required under the terms and conditions of this MSA or a Contract. Notwithstanding the foregoing, this representation and warranty does not include a disabling device that limits, suspends or ends use of the Products or Services expressly permitted by the terms and conditions by the license under which it was provided: and

10.18. When used as authorized by this MSA or any Contract, no Work Product infringes nor will Authorized Purchaser’s use, duplication or transfer of the Work Product infringe any copyright, patent, trade secret or other proprietary right of any third party.

The warranties set forth in this section 10 are in addition to, and not in lieu of, any other warranties provided in this MSA or in any Contract.

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

11.1. Contractor fails to honor pricing at least at or lower than the pricing specified in Exhibit C; or

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

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

Before Contractor can be found in default of this MSA, DAS SPS shall first deliver a notice of default to Contractor. The notice must describe the specific nature of the default, cite the specific provisions of this MSA that have been violated, indicate whether the default can be cured, and specify the time period in which the default must be cured, if cure is permitted.

12. Remedies for Default. If Contractor is in default under section 11, DAS SPS may, at its option, pursue any or all remedies available to it under this MSA and at law or in equity, including without limitation, termination of this MSA pursuant to section 13 or pursuing a claim for damages, or undertaking collection by administrative offset, or garnishment if applicable, of all monies due for Services and Deliverables to recover liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State (offsets or garnishment may be initiated after the Contractor has been given notice if required by law), or any or all.

13. Termination.

13.1. Mutual Termination. The parties may terminate this MSA upon the date specified in written agreement.

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

13.2.1. DAS SPS may terminate this MSA upon thirty (30) calendar days’ prior written notice to Contractor or any later date as specified in the written notice; or

13.2.2. DAS SPS may terminate this MSA immediately if federal or state laws, rules, regulations, executive orders, or guidelines are modified in such a way that would prohibit any party’s performance under this MSA.

13.3. DAS SPS’ Right to Terminate for Cause. In addition to any other rights and remedies DAS SPS may have under this MSA, DAS SPS may terminate this MSA, in whole or in part, immediately upon written notice to Contractor of Contractor’s default under section 11.

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

14. Contractor’s Compliance with Tax Laws.

14.1. Contractor must, throughout the term of this MSA and any extensions, comply with all tax laws of this state and all applicable tax laws of any political subdivision of this state. For the purposes of this Section, “tax laws” includes all the provisions described in subsection 10.10.1 through 10.10.4 of this MSA.

Any violation of this subsection 14.1 constitutes a material breach of this MSA. Further, any violation of Contractor’s warranty in subsection 10.10 of this MSA, that Contractor has complied with the tax laws of this state and the applicable tax laws of any political subdivision of this state, also constitutes a material breach of this MSA. Any violation shall entitle DAS SPS to terminate this MSA, to pursue and recover any and all damages that arise from the breach and the termination of this MSA, and to pursue any or all of the remedies available under this MSA, at law, or in equity, including but not limited to:

14.1.1 Termination of this MSA, in whole or in part;

14.1.2. Exercise of the right of setoff, or garnishment, if applicable, and withholding of amounts otherwise due and owing to Contractor, in an amount equal to State’s setoff right, without penalty; and

14.1.3. Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief. DAS SPS shall be entitled to recover any and all damages suffered as the result of Contractor's breach of this MSA.

These remedies are cumulative to the extent the remedies are not inconsistent, and DAS SPS may pursue any remedy or remedies singly, collectively, successively, or in any order whatsoever.

15. Indemnity. Contractor shall defend (subject to ORS chapter 180), save, hold harmless, and indemnify the State of Oregon and DAS SPS, and their officers, employees and agents from and against all claims, suits, actions, losses, damages, liabilities, costs and expenses of any nature whatsoever, including attorney’s fees, resulting from, arising out of, or relating to the activities of Contractor or its officers, employees, subcontractors, or agents under this MSA.

16. Governing Law. This MSA is governed by and construed according to the laws of the State of Oregon without regard to principles of conflict of laws.

17. Venue and Consent to Jurisdiction. Any claim, action, suit, or proceeding (collectively, “Claim”) between DAS SPS and Contractor that arises from or relates to this MSA must be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon; provided, however, if a Claim must be brought in a federal forum, then it must be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. CONTRACTOR BY EXECUTION OF

THIS CONTRACT HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF THE

COURTS REFERENCED IN THIS SECTION 17. In no event may this section be construed as

(i) a waiver by the State of Oregon of any form of defense or immunity, whether sovereign immunity, governmental immunity, immunity based on the eleventh amendment to the

Constitution of the United States or otherwise, from any claim, or (ii) consent by the State of Oregon to the jurisdiction of any court.

18. ORCPP Member Organizations Venue and Consent to Jurisdiction: Claims between Contractor and an ORCPP Member organization other than an agency of the State of Oregon that arise from or relate to this Contract order shall be brought and conducted solely and exclusively within the Circuit Court of the county in which such ORCPP Authorized Purchaser resides, or at the ORCPP Authorized Purchaser’s option, within such other county as the ORCPP Authorized Purchaser is entitled under the laws of the relevant jurisdiction to bring or defend Claims. If any such Claim must be brought in a federal forum, then unless otherwise prohibited by law it shall be brought and conducted solely and exclusively within the United States District Court for the District in which such ORCPP Authorized Purchaser resides. CONTRACTOR HEREBY CONSENTS TO THE IN PERSONAM

JURISDICTION OF SAID COURTS AND WAIVES ANY OBJECTION TO VENUE IN SUCH

COURTS, AND WAIVES ANY CLAIM THAT SUCH FORUM IS AN INCONVENIENT FORUM.

Nothing herein shall be construed as a waiver of ORCPP Authorized Purchaser’s sovereign or governmental immunity, if any, whether derived from the Eleventh Amendment to the United States Constitution or otherwise, or of any defenses to Claims or consent to jurisdiction based thereon.”

19. MSA Contract Administrators. The MSA Contract Administrators for DAS SPS and for Contractor are the individuals identified in this section 19 or any other individual identified in writing as the MSA Administrator to the other party.

Contractor MSA Contract Administrator:

[name, address, contact information]

DAS SPS MSA Contract Administrator:

Stephanie Austermann, State Procurement Analyst 1225 Ferry St SE, Salem, OR 97301 Phone: 971-375-5558 Email: stephanie.austermann@das.oregon.gov

20. Amendment. This MSA may be amended, modified, or supplemented only by a written amendment signed by DAS SPS and Contractor. Any amendment that provides for additional Services, may only provide for Services directly related to the scope of Services described in the Special Procurement, and no amendment will be effective until all requisite signatures and approvals are obtained. Either DAS SPS or Contractor may request a change to this MSA, including all Exhibits hereto, by submitting a written proposal describing the desired change to the other party.

21. Nondiscrimination in Employment. Contractor certifies that Contractor has a written policy and practice that meets the requirements, described in ORS 279A.112 of preventing sexual harassment, sexual assault, and discrimination against employees who are members of a protected class. Contractor agrees, as a material term of the MSA, to maintain the policy and practice in force during the entire MSA term.

22. 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 MSA, and Contractor’s failure to comply constitutes a breach entitling Agency to terminate this MSA or any Contract for cause.

Further, 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.

23. Oregon False Claims Act. Contractor acknowledges the Oregon False Claims Act, ORS

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

24. Integration. This MSA and attached Exhibits constitute the entire agreement between the parties on the subject matter hereof. There are no understandings, agreements or representations, oral or written, not specified herein regarding this MSA.

Authorized Signatures:

Contractor:

By: ____________________________________________

Title: __________________________________________ Date: ________________

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

By: ____________________________________________

Title:___________________________________________ Date: ________________

Approved pursuant to ORS 291.047

Oregon Department of Justice

By: __________________________________________ Date: ______________ Assistant Attorney General Matter No. 107090, GF 0325-26

EXHIBIT A

to Master Services Agreement #_____

CONTRACT TERMS AND CONDITIONS

These Contract Terms and Conditions apply to all Contracts issued under this MSA, including Service Order Contracts or other agreed upon ordering instruments.

1. DEFINITIONS. In addition to any other terms defined elsewhere in this Contract, the following defined terms apply:

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

1.2. “Calendar Day” means any day on the Western calendar.

1.3. “Contract” means any Service Order Contract or other agreed upon ordering instrument issued under this MSA.

1.4. “Deliverables” means all Products and items that Contractor is required to provide to Authorized Purchaser under a Contract as part of the Services, including Work Product.

1.5. “Work Product” means every invention, discovery, work of authorship, trade secret, or other tangible or intangible item and all Intellectual Property rights therein that Contractor is required to deliver to Authorized Purchaser pursuant to the Services.

2. Non-Exclusive Contract. Contractor acknowledges and agrees that by executing this Contract, Authorized Purchaser is not granting to Contractor the exclusive right to perform the Services, or any other services, for Authorized Purchaser. Authorized Purchaser reserves the right to:

2.1. Contract with other entities to provide Authorized Purchaser with products or services that are the same or similar to those provided to Contractor under this Contract;

and

2.2. Perform any or all of the Services itself.

3. Compensation. Following Contractor’s delivery or completion, and Authorized Purchaser’s acceptance of the Services, Authorized Purchaser will pay Contractor as specified in this Contract, based on the pricing established in MSA Exhibit C. Contractor represents that all pricing for Services under this Contract is equal to or better than the pricing specified in the MSA.

4. 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 other than Authorized Purchaser. Authorized Purchaser believes it has sufficient funds currently available and authorized for expenditure to make payments under this Contract within Authorized Purchaser’s biennial appropriation or limitation. Contractor understands and agrees that Authorized Purchaser’s payments under this Contract are contingent on Authorized Purchaser receiving appropriations, limitations, or other expenditure authority sufficient to allow Authorized Purchaser, in the exercise of its reasonable administrative discretion, to continue to make payments under this Contract.

5. Invoicing and Payment

5.1. Invoices. Contractor shall submit invoices for accepted Services or Deliverables according to the payment schedule as set forth in this Contract. Contractor shall submit invoices to Authorized Purchaser as designated in this Contract. Contractor shall include the MSA number and applicable Contract number on all invoices. Contractor also shall include a description of all Services performed, Deliverables delivered, applicable pricing, total amount invoiced and the address for payment.

5.2. Payment. Authorized Purchaser shall pay all undisputed amounts within thirty

(30) days from receipt of each invoice determined to be correct following Authorized Purchaser’s review under section 5.3. Contractor may assess late payment charges only to the extent permitted by ORS 293.462.

5.3. Invoice Review / Dispute Process. Authorized Purchaser will review each invoice and will either approve payment of the amount invoiced or notify Contractor of any errors or disputed charges. Authorized Purchaser may withhold payment of any amounts that are disputed.

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

Authorized Purchaser, in its sole discretion, will determine if the supporting documentation provides sufficient substantiation for the disputed charges. If Authorized Purchaser determines that the supporting documentation is sufficient, Authorized Purchaser will notify Contractor and pay Contractor the amount charged in the invoice. If Authorized Purchaser determines the supporting documentation supports payment of an amount less than originally invoiced, Authorized Purchaser will notify Contractor of the amount Authorized Purchaser believes is due under the invoice, and Authorized Purchaser will pay the invoice in that lesser amount.

6. Performance, Delivery and Acceptance.

6.1. Responsibilities of Contractor. Contractor shall perform the Services in accordance with the standards and methodologies set forth in the Exhibit B, Description of Services; Specifications and this Contract. Contractor shall cooperate with Authorized Purchaser and its designated third parties by providing access and information on the

Products’ architecture, design, operating environment, interfaces and operating parameters as necessary.

6.2. Delivery and Review of Deliverables. Unless otherwise agreed, within ten (10) Business Days following Contractor’s delivery of Services or Deliverables, or both, Authorized Purchaser will review the Services and Deliverables to determine whether the Services and Deliverables meet the Contract requirements. If Authorized Purchaser determines that the Services and Deliverables meet the Contract requirements, Authorized Purchaser will notify Contractor of Authorized Purchaser’s acceptance.

If Authorized Purchaser determines that the Services or Deliverables, or both, do not meet the Contract requirements, Authorized Purchaser will notify Contractor of Authorized Purchaser’s rejection. Within ten (10) Business Days following Contractor’s receipt of Authorized Purchaser’s rejection notice, Contractor shall revise and redeliver to Authorized Purchaser the rejected Services or Deliverables at Contractor’s sole expense to ensure that the Services or Deliverables meet the Contract requirements as determined by Authorized Purchaser. Authorized Purchaser will thereafter review of the revised Services or Deliverables and notify Contractor of Authorized Purchaser’s acceptance or rejection within a ten (10) Business Days following Authorized Purchaser’s receipt of Contractor’s revised Services or Deliverables. This process is an iterative process.

Contractor’s failure to deliver Services or Deliverables that meet the specifications and performance standards after Authorized Purchaser’s second review may constitute a default by Contractor, if Authorized Purchaser chooses not to allow Contractor any further attempts to revise and redeliver the Services or Deliverables, or both. Upon such default, Contractor shall refund to Authorized Purchaser all amounts paid by Authorized Purchaser for the Deliverables or the Services related to such Deliverables.

All such refunds are in addition to, and not in lieu of, any other remedies Authorized Purchaser may have for Contractor’s default.

6.3. Business Continuity Management and Disaster Recovery. Contractor shall deliver, maintain, and upgrade as necessary, Business Continuity Management and Disaster Recovery Plan and Procedures for the Products and Services, acceptable to Authorized Purchaser. In the event of a disaster, Contractor shall comply with the provisions of and deliver the Products or Service according to the Business Continuity Management and Disaster Recovery Plan and Procedures.

6.4. Performance Metrics and Service Level Guarantees. In its provision of the Services, Contractor shall meet the performance metrics and service level guarantees set forth in the Contract. Contractor shall provide, maintain, and upgrade any hardware and related equipment, and software provided by Contractor and required for delivery and operation of the Products and Services. 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 Authorized Purchaser, as and to the extent requested by Authorized Purchaser, 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.

Contractor shall pay the damages or issue service credits as agreed to in this Contract if Contractor fails to provide the Services as and when required by this Contract or fails to meet the performance metrics and service level guarantees specified in this Contract.

This section does not limit Authorized Purchaser’s rights with respect to the events upon which Authorized Purchaser may rely as a basis for termination of this Contract for cause.

6.5. Responsibilities of Authorized Purchaser. If this Contract requires Authorized Purchaser to provide any information or resources, and Authorized Purchaser fails to provide the requisite quality or quantity of such resources, or fails to provide such resources in a timely manner for a period that does not exceed ten (10) Calendar Days, Contractor’s sole remedy is an extension of the applicable delivery dates corresponding to the delay. If Authorized Purchaser’s failure to provide such resources exceeds ten

(10) Calendar Days, and Contractor can show to the reasonable satisfaction of Authorized Purchaser, that Authorized Purchaser’s failure has resulted in an unavoidable increase in the cost of the Services required for the Statement of Work then Contractor will be entitled to recover from Authorized Purchaser the reasonable amount of such increased costs. Contractor's right to delay applicable delivery dates or recover for increased costs may be exercised only if Contractor provides Authorized Purchaser with reasonable notice of Authorized Purchaser's failure and Contractor uses commercially reasonable efforts to perform notwithstanding Authorized Purchaser's failure to perform.

7. Contractor’s Personnel.

7.1. Key Persons. Contractor’s Key Persons are identified on MSA Exhibit D, Service Order Contract Form. Contractor acknowledges and agrees that a significant reason Authorized Purchaser selected Contractor and is entering into this Contract is because of the special qualifications of each Key Person. Authorized Purchaser is engaging the expertise, experience, judgment, and personal attention of such Key Persons under this Contract. Neither Contractor nor any Key Person shall delegate performance of the duties and obligations of such Key Person under this Contract to any other employee, agent or subcontractor of Contractor unless Authorized Purchaser provides prior written consent to such delegation. Contractor shall not reassign or transfer a Key Person to other duties or positions so that the Key Person is no longer available to provide Authorized Purchaser with that Key Person’s services unless Authorized Purchaser provides prior written consent to the reassignment or transfer, or the reassignment or transfer is required based on the termination of employment, illness, death, disability or other similar cause.

If Contractor requests Authorized Purchaser’s consent to a delegation, reassignment, transfer or other replacement of a Key Person, Authorized Purchaser may meet with the Key Person and review the qualifications of the proposed substitute personnel before providing its consent or rejecting such replacement. Any such replacement shall have substantially equivalent or better qualifications than the Key Person being replaced.

Contractor shall not charge Authorized Purchaser, and Authorized Purchaser will not pay, for any replacement Key Person while that Key Person acquires the necessary skills and knowledge to continue the Services. Such period of non-charge will be agreed upon by the parties, but not extend for more than twenty-eight (28) Calendar Days. All replacement personnel approved by Authorized Purchaser are deemed Key Persons for purposes of this Contract, and this Contract is deemed amended to include those Key Persons.

7.2. Subcontracts. Contractor shall not enter into any subcontracts for any of the Services required by this Contract without Authorized Purchaser’s prior written consent.

In addition to any other provisions Authorized Purchaser may require, Contractor shall include in any permitted subcontracts under this Contract a requirement that the subcontractor be bound by sections 5, 6, 8, 9, 11, 12, 14, 17, 20, 29, and 30 of this Contract as if the subcontractor were the Contractor. Authorized Purchaser’s consent to any subcontractor shall not relieve Contractor of any of its duties or obligations under this Contract.

7.3. Successors and Assigns. Contractor shall not assign or transfer any of its interest in this Contract without Authorized Purchaser’s prior written consent. This Contract is binding upon and shall inure to the benefit of Authorized Purchaser and Contractor, and their respective successors and permitted assigns.

7.4 Cooperation. Contractor understands and agrees that, as part of this Contract, Contractor may be required to work with other Authorized Purchaser contractors who may be working on this or similar projects. Authorized Purchaser and Contractor acknowledge and agree that this cooperation is essential to the mutual goal of both parties for accurate and valuable use by Authorized Purchaser. Contractor shall create and maintain a cooperative working relationship between and among Authorized Purchaser and other entities and their respective representatives involved in representing Authorized Purchaser’s priorities at the federal and statewide levels, to further the interests of Authorized Purchaser to result in the Services begin successfully completed on time and within budget.

In the event of a conflict between contractors who must cooperate, contractors shall notify the Authorized Purchaser’s contract administrator and abide by Authorized Purchaser’s direction(s).

7.5 Authorized Purchaser Facilities and Networks; Access and Security.

Authorized Purchaser shall permit Contractor and Contractor personnel access to Authorized Purchaser facilities and networks, provided Contractor and Contractor personnel comply with all Authorized Purchaser security and access policies, rules, procedures, and regulations for access to Authorized Purchaser’s facilities and networks.

• Statewide Information Technology and Security Policies found at:

Department of Administrative Services : Statewide Policies and Guidelines : State of Oregon

• Oregon’s Statewide Information Technology Policies:

www.oregon.gov/das/Pages/policies.aspx#IT.

• The Oregon Consumer Information Protection Act (OCIPA), ORS 646A.600 through 646A.628.

8. Confidentiality / Non-Disclosure.

8.1. Confidential Information. Each party acknowledges that it and its employees or agents may, in the course of performing its responsibilities under this Contract, be exposed to or acquire information that is confidential to the other party or the other party’s clients. Any and all information of any form obtained by one party or its employees or agents in the performance of this Contract is confidential information of the other party (“Confidential Information”). The parties shall treat any reports or other documents or items (including software) which result from the use of the Confidential Information by the recipient of such information with respect to confidentiality in the same manner as the Confidential Information. Confidential Information does not include information that (i) is or becomes (other than by disclosure by the party acquiring such information) publicly known or is contained in a publicly available document; (ii) is furnished by the party disclosing such information to others without restrictions similar to those imposed by this Contract; (iii) is rightfully in the receiving party’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 the discloser without the obligation of confidentiality, (v) is disclosed with the written consent of the disclosing party, or; (vi) is independently developed by employees or agents of the receiving party who can be shown to have had no access to the Confidential Information.

8.2. Duties of Care. The recipient of Confidential Information shall hold Confidential Information in strict confidence, using at least the same degree of care that it uses in maintaining the confidentiality of its own Confidential Information, and the recipient shall not copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give or disclose Confidential Information to third parties or use Confidential Information for any purposes whatsoever other than required by law or otherwise as contemplated by this Contract or reasonably related thereto, including without limitation the use by Authorized Purchaser contractors who need to access or use the Confidential Information for any valid business purpose, and to advise each of its employees and contractors of their obligations to keep Confidential Information confidential.

https://www.oregon.gov/das/Pages/policies.aspx#IT http://www.oregon.gov/das/Pages/policies.aspx#IT

8.3. Prevention of Unauthorized Use or Disclosure. Each party shall use commercially reasonable efforts to assist the other in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limitation of the foregoing, each party shall advise the other immediately in the event it 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 each party will at its expense cooperate with the other in seeking injunctive or other equitable relief in the name of the other against any such person.

8.4. Non-disclosure. Each party agrees that, except as provided in this Contract or directed by the other, it will not at any time during or after the term of this Contract disclose, directly or indirectly, any Confidential Information to any person, and that 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.

8.5. NDAs and Background Checks. Contractor agrees to comply with all reasonable requests by Authorized Purchaser to ensure the confidentiality and nondisclosure of Authorized Purchaser’s Confidential Information, including without limitation (i) obtaining nondisclosure agreements from Contractor’s employees and agents who are performing Services and providing copies of such agreements to Authorized Purchaser,

(ii) performing criminal background checks on each of Contractor’s employees and agents who are performing Services, and providing a copy of the results to Authorized Purchaser, and (iii) complying with Authorized Purchaser’s access and security policies and procedures.

8.6. Public Records Laws. Authorized Purchaser’s obligations of confidentiality, if any, are subject to the Oregon Public Records Laws, ORS 192.311 through ORS 192.478 and the Oregon Custody and Maintenance of Records Laws, ORS 192.005 through192.170.

8.7. Injunctive Relief and Other Remedies. Each party acknowledges that breach of this section 8, including disclosure of any Confidential Information may give rise to irreparable injury which may be inadequately compensable in damages. Accordingly, each party may seek injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available.

Each party acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of the other and are reasonable in scope and content.

8.8. 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 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.

9. Independent Contractor; Taxes and Withholding.

9.1. Contractor shall perform all Services as an independent contractor. Although Authorized Purchaser reserves the right to determine the delivery schedule for the Services to be performed and evaluate the quality of the completed performance, Authorized Purchaser cannot and will not control the means or manner of Contractor’s performance.