S-10000-00009378 (5845) ATTACHMENT A.docx

OregonBuys Bid # S-10000-00009378- Digital Fax

ATTACHMENT A SAMPLE CONTRACT

Agreement and Rider to Terms of Service Comment by Rodriguez Enrique G: Negotiable Options in the text are marked with [bracketed, highlighted language]. Verification needs to happen with the highlighted template text, capitalized terms, and section references that they are a correct part of the particular rider.

Areas not marked require legal review and more comprehensive negotiation.

This rider (Rider) is between [name], a [state] Corporation (Licensor) and the State of Oregon, acting through its [Agency] (Licensee) This Rider, together with all exhibits, constitutes the complete agreement between the parties (Agreement).

[Include any desired recitals about authority, such as a reference to an RFP, delegation by rule, or special procurement.] Licensor and Licensee agree:

1. Applicability and Authority. This Agreement pertains to the [brief description of services] (Services), including related intellectual property (such as documentation) and support to be provided as a service by Licensor to Licensee under this Agreement. Licensee is authorized to enter into this Agreement pursuant to its [procurement method and number]. Services are limited to the scope of [short reference to procurement] and subject to approval by [who][and the Oregon Department of Justice].

1.1. Licensor shall deliver Services in accordance with this Agreement, inclusive of Licensor’s Terms of Service. Services must meet the requirements of [cite applicable exhibits].

2. Complete Agreement. This Agreement consists of this Rider, Licensor’s Terms of Service (TOS), in the form attached as Exhibit A[, and Exhibit B, Insurance Requirements]. Exhibit[s A and B, in the form attached, are] hereby incorporated into this Agreement by this reference. This Rider amends and supersedes any provision to the contrary in the TOS. This Agreement merges all prior and contemporaneous communications with respect to the matters described in this Agreement.

3. Order of Precedence. In the event of any conflict between the Rider, the TOS, [include all exhibits in desired order of precedence,] any terms and conditions published by Licensor on or after the Effective Date of this Agreement (including updates to any policy referenced in the TOS), and any terms presented to an end user in a ‘click wrap’ or similar end user agreement, the conflict will be resolved in that order.

4. Effective Date and Term. This Agreement is effective on [date] or when it is fully executed and approved according to applicable laws, rules and regulations, whichever date is later (Effective Date). This Agreement continues in effect [until [date]] unless terminated by either party by providing notice in the manner specified in the TOS or specified in this Rider.

4.1. There is no automatic renewal for the services. Licensee may renew its subscription for an agreed upon term as of the anniversary date.

4.1.1. Licensor may terminate or suspend the Services [(but not access to Licensee Data held as part of the Services] if Licensee fails to pay an undisputed past-due invoice for a renewal term within 30 calendar days of Licensee’s receipt of written notice from Licensor of such failure.

4.1.2. If Licensee wishes to reinstate the Services, Licensee will pay the fee(s) due for the current term [at then-current prices available to similar-sized government clients in good standing]. Licensee will not pay a penalty, or be obligated to pay for additional subscription terms.

5. Payment.

5.1. The maximum amount payable under this Agreement is $ .

5.2. Licensee’s obligation to pay late charges is subject to ORS 293.462.

5.3. Licensee will not be obligated to make any payment for services or other charges that exceed the maximum amount payable under this Agreement, unless the maximum additional amount payable is agreed upon in advance and authorized by Licensee in writing.

5.4. Any Licensee obligation to pay travel expenses, including transportation, lodging, or meals, is subject to the rates and limitations of the Statewide Travel Policy, currently found online at: http://www.oregon.gov/das/Financial/Acctng/Documents/40.10.00.pdf.

5.5. Licensor shall not retain fees paid but not earned if this Agreement [or an order] is terminated prior to its expiration.

6. Confidentiality of Licensor Information.

6.1. Any obligation of Licensee to maintain the confidentiality of Licensor’s proprietary information provided to Licensee is conditioned by and subject to Licensee’s obligations under the Oregon Public Records Law, ORS 192.311 to 192.478 which may require disclosure of proprietary information as a “public record” unless exempt under ORS 192.345 or ORS 192.355.

7. Licensee Data.

7.1. Ownership of Licensee Data. Any information Licensor or its employees or agents receives or creates relating to Licensee or Licensee’s clients (Licensee Data) is owned by Licensee. Licensee hereby grants Licensor a license to use Licensee Data to fulfill the purposes of this Agreement, and otherwise only as specifically described in this Agreement. Licensor hereby irrevocably assigns, transfers and conveys, and will cause its employees, subcontractors and agents to assign, transfer and convey without further consideration all right, title, and interest in Licensee Data to Licensee. Upon request by Licensee, Licensor will or will cause the execution and delivery of any documents that may be necessary to preserve, or enable Licensee to enforce, its rights with respect to Licensee Data.

7.2. Confidentiality Generally. Licensor acknowledges that, it and its employees, subcontractors or agents in the course of this Agreement may be exposed to or acquire information that is confidential to Licensee or Licensee’s clients. Licensee Data is confidential information. Licensor shall maintain the confidentiality of Licensee’s confidential information. Confidential information does not include:

7.2.1. Information that becomes part of the public domain through lawful means and without breach of any confidentiality obligation by Licensor;

7.2.2. Information subsequently and rightfully received from third parties who have the necessary rights to transfer the information without any obligation of confidentiality;

7.2.3. Information that was known to Licensor prior to the Effective Date of the Agreement without obligation of confidentiality;

7.2.4. Information that is independently developed by Licensor and documented in writing without use of, or reference to, any confidential information of Licensee; and

7.2.5. Subject to Licensor’s obligation to provide notice under Section 8, Notifications, information required to be disclosed by compulsory judicial or administrative process or by law or regulation.

7.3. Privacy and Security Training. Licensor shall ensure its employees, agents, and contractors receive periodic training on privacy and security obligations relating to this Agreement.

7.4. Limited Purposes. Licensor shall limit the use or disclosure of Licensee Data to persons directly connected with the administration of this Agreement.

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

7.6. Prohibition on Data Mining. Licensor shall not capture, maintain, scan, index, share or use Licensee Data, or otherwise use any data-mining technology, for any non-authorized activity, and shall not permit its agents or subcontractors to do so. For purposes of this requirement, “non-authorized activity” means data mining or processing of data, stored or transmitted by the service, for unrelated commercial purposes, advertising or advertising-related purposes, or for any other purpose other than security analysis that is not explicitly authorized in this Agreement.

7.7. Privacy Protections. The information exchanged between the parties may include Licensee Data subject to specific confidentiality protections under state or federal law, and the implementing regulations of those laws. Licensor, its employees, agents, and contractors shall comply with laws and regulations applicable to the information, including as those laws and regulations may be updated from time to time. Licensor shall maintain protections required by law or this Agreement for any retained Licensee Data for so long as Licensor (including through any third party) retains Licensee Data.

7.8. [Access. Licensor shall not suspend Licensee’s access to Licensee Data at any time during the term of this Agreement or the post-termination access period.]

7.8.1. Response to Public Records Request for Agency Data. [The Services are the system of record for Licensee Data.] Licensee, as an executive department agency of the State of Oregon, must respond to requests for Licensee Data and other public records under Oregon’s Public Records laws, including ORS 192.311 to 192.478, within set timeframes. Licensor shall support the ability of Licensee to respond to public records requests for Licensee Data in accordance with applicable law.

7.9. Post-Termination Access to Licensee Data. Upon Agreement termination (including by expiration), Licensor shall, at Licensee’s discretion, either return all Licensee Data to Licensee (or delegate) in an agreed-upon format, or ensure Licensee has access and the ability to retrieve Licensee Data for at least a 90 calendar day period following termination. This 90 day period will be at no additional charge to Licensee. Licensor shall not retain any copies of Licensee Data following Licensee’s written verification that Licensee no longer requires post-termination access, except as necessary for audit verification purposes.

7.10. [Transition Services. Licensor shall at Licensee’s option provide transition services to support a responsible and secure transition of Services and Licensee Data to another service provider or to Licensee.]

7.11. Sanitization. [Subject to Section 9.10, Records Retention, Licensor shall not retain any copies of Licensee Data following the post-termination access period referenced in Section 7.9.] [Licensor shall not destroy Licensee Data without Licensee’s written authorization.] Licensor shall notify Licensee of any conditions that make returning all Licensee Data not feasible. Upon Licensee’s written acknowledgement that returning all Licensee Data is not feasible and consent, Licensor shall purge or destroy retained Licensee Data in all its forms (including copies of returned data) in accordance with the most current version of NIST SP 800-88 [or other agreed-upon standard] and provide Licensee with written certification of sanitization.

8. Notifications.

8.1. Incidents and Breaches. In the event Licensor or its subcontractor or agents discover or are notified of a suspected or confirmed security incident, or a suspected or confirmed breach of security or privacy, Licensor shall notify Licensee’s point of contact (or delegate) immediately, and in no event more than 24 hours following discovery or notification. An incident is an observable, measurable occurrence that is a deviation from expected operations or activities. A breach includes a failure to comply with Licensor’s confidentiality obligations. If Licensee determines that a breach requires notification of its clients, or other notification required by law, Licensee will have sole control over the notification content, timing, and method, subject to Licensor’s obligations under applicable law.

8.2. Requests for Licensee Data. In the event Licensor receives a third party request for Licensee Data, including any electronic discovery, litigation hold, or discovery searches, Licensor shall first give Licensee notice and provide such information as may reasonably be necessary to enable Licensee to take action to protect its interests.

8.3. Changes in Law. Each party will provide notice to the other of any change in law, or any other legal development, which may significantly affect its ability to perform its obligations.

9. Security and Hosting.

9.1. Compliance with Laws, Regulations, and Policies. Licensor [represents and warrants it] and all Licensor employees, contractors, and agents [shall] comply with all applicable state and federal laws and regulations, and State of Oregon policies governing use and disclosure of Licensee Data[and access to State of Oregon information assets], including as those laws, regulations, and policies may be updated from time to time. Applicable laws, regulations, and policies include but are not limited to:

9.1.1. Oregon’s Statewide Information Security Standards, found online at: https://www.oregon.gov/das/OSCIO/Pages/SecurityGuidance.aspxf.

9.1.2. Oregon’s Statewide Information Security Plan, found online at: https://www.oregon.gov/das/OSCIO/Pages/SecurityGuidance.aspx.

9.1.3. Oregon’s Statewide Policies: www.oregon.gov/das/Pages/policies.aspx#IT.

9.1.4. The Oregon Consumer Information Protection Act (OCIPA), ORS 646A.600 through 646A.628. [For purposes of OCIPA, Licensor is a covered entity.] [For purposes of OCIPA, Licensor is a vendor.]

9.2. Privacy and Security Measures. Licensor represents and warrants it has established and will maintain privacy and security measures that meet or exceed the standards set in laws, rules, and regulations applicable to the safeguarding, security, and privacy of Licensee Data. Licensor shall monitor, periodically assess, and update its physical, technical, and logical security controls and risk to ensure continued effectiveness of those controls.

9.3. Security Risk Management Plan. Licensor shall ensure the level of security and privacy protection required [by this Agreement] [for the Services] is documented in a security risk management plan. Licensor will make its plan available to Licensee for review upon request.

9.4. Testing. Licensee reserves the right to conduct periodic security testing [upon reasonable advanced notice to Licensee] of the Services.

9.5. Background Checks. Licensor has completed a criminal background check on its employees, agents, and contractors providing services related to this Agreement [and who have administrator-level access to Licensee Data]. Upon reasonable written request of Licensee, Licensor shall certify in writing that such background checks have been completed, and the checks revealed no negative findings pertaining to dishonesty, fraud, or theft on employees, agents, or contractors providing services related to this Agreement.

9.6. Hosting Services. Services are provided via [provide information on hosting services, including any named vendor and certification], which are located within the continental United States. This is a material representation of fact upon which Licensee may rely. Licensor shall not transfer or materially modify these hosting services without advance written consent from [Licensee’s Authorized Representative]. [Licensor networks and systems and Licensee Data will not be accessed from, transmitted, or stored outside of the United States or its territories, including for any maintenance, support, disaster recovery, or data backup.]

9.7. Third Party Audit. Licensor shall ensure it and its subservice organizations undergo annual examination from an independent auditor to assess the Services’ compliance with at least NIST 800-53 “Moderate” security controls (National Institute of Standards and Technology (NIST) Special Publication (SP) 800-53). Licensor shall provide an exact copy of the most recent examination results report to Licensee upon request.

9.8. Security Logs and Reports. Licensor shall allow Licensee access to system security logs that affect the Services, Licensee Data, or processes. This includes the ability for Licensee to request a report of the records that a specific user accessed over a specified period of time.

9.9. Licensee Audit Rights and Access. Licensor shall maintain records in such a manner as to clearly document its compliance with and performance under this Agreement, and provide Licensee, the Oregon Secretary of State[, the federal government,] and their duly authorized representatives access to Licensor’s officers, agents, contractors, subcontractors, employees, facilities and records to:

9.9.1. Determine Licensor’s compliance with this Agreement,

9.9.2. Validate Licensor’s written security risk management plan, or

9.9.3. Gather or verify any additional information Licensee may require to meet any state or federal laws, rules, or orders, including those regarding Licensee Data.

9.9.4. Notice. Except as stated below for security logs, access to facilities, systems, and records under this section will be granted following reasonable notice to Licensor. Records include paper or electronic form, and related system components and tools (including hardware and software), required to perform examinations and audits, and to make excerpts and transcripts, including for data forensics.

9.9.5. System Security Logs. Licensor shall provide designated Licensee staff on-demand access to system security logs [in report form] for the Services, including user-level access logs for both Licensee and Licensor users.

9.10. Record Retention. Licensor shall retain and keep accessible all records for a minimum of six years, or such longer period as may be required by applicable law, following termination of this Agreement, or until conclusion of any audit, controversy, or litigation arising out of or related to this Agreement, whichever data is later.

10. Licensor Access and Audit rights. Licensor’s audit rights in Section [##] of the TOS are modified to provide:

10.1. Any onsite audit will take place no more than once every 12 months, upon not fewer than 30 calendar days’ written notice, during normal business hours and in a manner that does not interfere unreasonably with Licensee’s operations. Licensee will provide Licensor or the independent auditor with information reasonably requested in furtherance of the verification; however, Licensor has no right of access to any locations, servers, computers, records, data, accounts, or other information protected by law from disclosure. As an alternative, Licensor can request Licensee complete a self-audit questionnaire.

10.2. If an agreed-upon compliance or audit report reveals that Licensee does not have sufficient subscriptions to meet its actual use, Licensee will order sufficient subscriptions at Licensee’s then-current prices, or at prices available to similar-sized government clients in good standing, whichever is lower. Licensee will not pay a penalty. Licensee may at its option purchase additional Services or subscriptions.

10.3. Each party will bear its own costs of any audit or compliance verification activity conducted pursuant to the TOS.

11. Licensee Liabilities and Indemnification. Licensee’s liabilities under this Agreement and any Licensee obligation under the TOS to indemnify or hold Licensor harmless against claims brought by third parties against Licensor, including any payment of attorneys’ fees, are subject to the limitations of Article XI, Section 7 of the Oregon Constitution and the Oregon Tort Claims Act, ORS 30.260 through 30.300. Licensee has no obligation to defend Licensor.

12. Licensor Indemnification[, Limitation of Liability, and Insurance].

12.1. Licensor shall indemnify, defend, and hold Licensee, the State of Oregon, and its agents, officials and employees harmless from all third party claims, demands, suits, actions, proceedings, losses, liabilities, damages, awards, and costs (including reasonable attorneys’ fees and expenses), which may be brought or made against Licensee, the State of Oregon, or their agents, officials, or employees and arising out of or related to any of the following (each an indemnifiable loss):

12.1.1. Personal injury, death or tangible property damage caused by any alleged act, omission, error, fault, mistake or negligence of Licensor, its employees, agents, or representatives in connection with Licensor’s performance under or related to the Agreement.

12.1.2. Any willful or grossly negligent act or omission by Licensor that constitutes a material breach of the Agreement, including any breach of warranty.

12.1.3. [Claims that any element of the Services or its use infringes or violates any patent, copyright, trademark, trade secret, or other proprietary right of a third party.]

12.2. Licensee will timely notify Licensor in writing of any action, claim or demand of which Licensee becomes aware and which Licensee reasonably expects to result in an indemnifiable loss. Licensor’s indemnification obligations are not subject to any limitation of liability in the TOS. Licensor’s obligation under this section does not extend to any indemnifiable loss to the extent caused by: (i) the negligence or willful misconduct of Licensee, the State of Oregon, or their agents, officials or employees; or (ii) Licensee’s modification of Licensor’s software where the unmodified version of the software would not cause an indemnifiable loss.

12.3. Except for claims and expenses relating to Licensor’s indemnification obligations, defense obligations, breach of Licensee Data, or claims and penalties arising from Licensee’s obligations under laws and regulations in Section 9.1 (Compliance with Laws, Regulations, and Policies), Licensor’s liability under this Agreement is limited to [one and one half times the maximum amount payable under this Agreement].

12.4. Licensor shall provide insurance in accordance with Exhibit B, which is hereby incorporated into this Agreement by this reference.

13. Defense of Claims. To the extent Licensor is required under this Agreement to defend Licensee against claims asserted by third parties, [including under Section ## of the TOS,] Licensee shall reasonably cooperate in good faith, at Licensor’s reasonable expense, in the defense of the claim, Licensor shall select counsel reasonably acceptable to the Oregon Attorney General to defend the claim, and Licensor shall bear all costs of counsel. The Oregon Attorney General’s acceptance of counsel may not be unreasonably withheld. Counsel must accept appointment as a Special Assistant Attorney General under ORS Chapter 180 before counsel may act in the name of, or represent the interests of, the State of Oregon, Licensee, its officers, employees or agents. Licensee may elect to assume its own defense with an attorney of its own choice and at its own expense any time Licensee determines important governmental interests are at stake. Licensee will promptly provide notice to Licensor of any claim that may result in an obligation on the part of Licensor to defend. Subject to these limitations, Licensor may defend a claim with counsel of its own choosing, on the condition that no settlement or compromise of any claim may occur without the consent of Licensee, which consent must not be unreasonably withheld.

14. Governing Law; Jurisdiction; Venue. This Agreement is governed by, construed, and enforced in accordance with the laws of the State of Oregon, without giving effect to its conflict of law principles, and applicable federal law. Any action or suit brought by the parties relating to this Agreement must be brought and conducted exclusively in the Circuit Court of Marion County for the State of Oregon in Salem, 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. LICENSOR HEREBY CONSENTS TO THE PERSONAL JURISDICTION OF THESE COURTS, WAIVES ANY OBJECTION TO VENUE IN THESE COURTS, AND WAIVES ANY CLAIM THAT THESE COURTS ARE INCONVENIENT FORUMS. In no way may this section or any other term of this Agreement be construed as (i) a waiver by the State of Oregon of any form of defense or immunity, whether it is sovereign immunity, governmental immunity, immunity based on the Eleventh Amendment to the Constitution of the United States, or otherwise, or (ii) consent by the State of Oregon to the jurisdiction of any court.

15. Attorneys’ Fees. Neither party to this Agreement is entitled to obtain judgment from the other party for attorneys’ fees incurred in any litigation between the parties. Except as allowable under Section 11 (Licensee Liabilities and Indemnification) and Section 12 (Licensor Indemnification) of this Rider, neither party may obtain judgment from the other party for attorneys’ fees incurred in the defense of any claim asserted by a third party.

16. Dispute Resolution. Any dispute between the parties under this Agreement that is not resolved through informal discussions may be submitted to mediation upon the consent of both parties. If informal discussions or mediation are unsuccessful, either party may initiate litigation to resolve the dispute. The parties specifically disclaim any right to arbitration of disputes. Neither party waives its right to a jury trial or right to participate in class, collective, or representative claims.

17. Incorporation of Oregon Statutes. ORS 279B.220, 279B.230 and 279B.235 are incorporated into this Agreement by reference.

18. Termination.

18.1. Licensee’s Rights to Terminate.

18.1.1. Termination for Lack of Funding. Nothing in this Agreement may be construed to permit any violation of Article XI, Section 7 of the Oregon Constitution or any other law regulating liabilities or monetary obligations of the State of Oregon. Licensee’s payment for fees due after the last calendar day of the current State of Oregon biennium is contingent upon Licensee receiving funding, appropriations, limitations, allotments or other expenditure authority from the Oregon Legislative Assembly (including its Emergency Board) sufficient to allow Licensee, in the exercise of its reasonable administrative discretion, to continue to compensate Licensor. Licensee may immediately terminate this Agreement upon written notice if Licensee fails to receive funding, appropriations, limitations, allotments, or other expenditure authority as contemplated by Licensee’s budget or spending plan and Licensee determines, in its assessment and ranking of the policy objectives explicit or implicit in its budget or spending plan, that it is necessary to terminate this Agreement.

18.1.2. EIS Authorization. Licensee may terminate this Agreement if it does not receive authorization from the Enterprise Information Services (EIS) to continue the Services, or EIS authorization is withdrawn or modified in a way that performance of the Services under this Agreement is prohibited or no longer in the best interest of the State.

18.1.3. Licensee’s Right to Terminate for No Cause. Licensee may terminate this Agreement upon at least 30 calendar days’ prior written notice to Licensor.

18.1.4. Licensee’s Right to Terminate for Cause. In addition to any other rights and remedies Licensee may have under this Agreement, Licensee may terminate this Agreement, in whole or in part, upon written notice to Licensor of Licensor’s default. Licensor will be in default under this Agreement if:

18.1.4.1. Licensor institutes or has instituted against it insolvency, receivership or bankruptcy proceedings which are not dismissed within 60 calendar days of their commencement, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis; or

18.1.4.2. Licensor no longer holds a license or certificate that is required to provide the Services and Licensor has not obtained such license or certificate within 30 business days after delivery of Licensee’s notice or such longer period as Licensee may specify in such notice; or

18.1.4.3. Licensor commits any material breach of any covenant, warranty, obligation or certification under this Agreement, fails to provide or perform the Services in conformance with the specifications and warranties provided herein, or clearly manifests an intent not to perform future obligations under this Agreement, and such breach or default is not cured, or such manifestation of an intent not to perform is not corrected by reasonable written assurances of performance within 30 business days after delivery of Licensee’s notice or such longer period as Licensee may specify in such notice.

18.1.5. Licensee’s Right to Terminate for Services Issues. Licensee may terminate this Agreement upon at least 30 calendar days’ advance written notice if the Services are not in material conformance with the Service documentation, including if Licensor materially fails to meet [service level agreements]. A “material failure” includes consecutive or excessive failures.

18.2. Licensor’s Right to Terminate for Cause. Licensor may, subject to a minimum 60 calendar days’ prior written notice to Licensee, terminate this Agreement under Exhibit A, Section ##.

18.3. Mutual Termination. The parties may agree to terminate this Agreement upon at least 30 calendar days’ prior written agreement.

19. Independent Contractor. Licensor is at all times an independent contractor and is not an agent, employee, or representative of Licensee. Licensor has no right or authority to incur or create any obligation for or legally bind Licensee in any way. Licensor is not an "officer," "employee" or "agent" of Licensee or any other agency, office, or department of the State of Oregon, as those terms are used in ORS 30.265, and Licensor shall make no representations to third parties to the contrary. Neither party shall make any statements, representations, or commitments of any kind or to take any action binding on the other except as provided for in the Contract or authorized in writing by the party to be bound.

20. Publicity. Licensor may disclose the form and existence of this Agreement in advertising, press releases or other materials distributed to prospective customers, but shall not otherwise attempt to obtain publicity from its association with Licensee or the State of Oregon, whether or not such disclosure, publicity or association implies an endorsement by Licensee or the State of Oregon of Licensor’s products and services, without the prior written consent of Licensee.

21. Counterparts. This Rider may be executed in two or more counterparts, by facsimile or otherwise, each of which is an original, and all of which together constitute one and the same instrument, notwithstanding that all parties are not signatories to the same counterpart.

22. Amendments. This Agreement may be amended, modified, or supplemented only by a written amendment that, if required by applicable law, has been approved according to applicable laws, rules and regulations, and for legal sufficiency by DOJ. No amendment will be effective until all requisite signatures and approvals are obtained from both parties.

23. No Third Party Beneficiaries. Licensee and Licensor are the only parties to this Agreement and are the only parties entitled to enforce its terms.

24. Subcontractors. Licensor shall disclose its subcontractors under this Agreement, and ensure all subcontractors providing services related to this Agreement comply with its applicable provisions.

25. Survival. The provisions of this Rider that by their nature survive termination do so survive.

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

27. Non-Discrimination. If the anticipated total value of the Services to be provided under this Agreement is $150,000 or more, Licensor certifies that it has a written policy and practice that meets the requirements described in ORS 279A.112 for preventing sexual harassment, sexual assault, and discrimination against employees who are members of a protected class. Licensor agrees, as a material condition, to maintain such policy and practice in force during the term of this Agreement.

28. Pay Equity. As required by ORS 279B.235, Licensor 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. Licensor’s compliance with this section is a material term of this Agreement, and Licensor’s failure to comply constitutes a breach entitling Licensee to terminate this Agreement for cause.

28.1. As required by ORS 279B.235, Licensor 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. Licensor 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.

29. NOTICES. Except as otherwise expressly provided in this Agreement, any communications between the parties or notices to be given under this Agreement must be given in writing to Licensor at the address or number set forth in Section 31, and to Licensee at the address or number set forth in Section 31, or to such other addresses or numbers as either party may hereafter indicate pursuant to this Agreement.

1.1.1. Any communication or notice delivered by United States Postal Service, first class mail postage prepaid, will be deemed given five calendar days after mailing.

1.1.2. Any communication or notice delivered by facsimile will be deemed given when the transmitting machine generates receipt of the transmission. To be effective against Licensee, such facsimile transmission must be confirmed by telephone notice to the Licensee Authorized Representative.

1.1.3. Any communication or notice delivered by email will be deemed given when the recipient responds with a receipt, which may be auto-generated. To be effective against Licensee, such email transmission must be confirmed by telephone notice to the Licensee Authorized Representative (or delegate).

1.1.4. Any communication or notice by personal delivery will be deemed given when actually received by the appropriate Authorized Representative (or delegate).

30. Tax Compliance. By executing this Rider, the undersigned certifies under penalty of perjury that, to the best of the individual’s knowledge, Licensor has complied with the tax laws of the State of Oregon and the applicable tax laws of any political subdivision of this state, and that Licensor has no undisclosed liquidated and delinquent debt owed to this state or any political subdivision. Licensor shall, for the duration of this Agreement and any extensions, comply with all tax laws of this state and all applicable tax laws of any political subdivision of this state. For the purposes of this section, “tax laws” includes: (i) All tax laws of this state, including but not limited to ORS 320.005 to 320.150 and 403.200 to 403.250 and ORS chapters 118, 314, 316, 317, 318, 321 and 323 and local taxes administered by the Department of Revenue;; (ii) Any tax provisions imposed by a political subdivision of this state that apply to Licensor, to Licensor’s property, operations, receipts, or income, or to Licensor’s performance of or compensation for any work performed by Licensor; (iii) Any tax provisions imposed by a political subdivision of this state that apply to Licensor, or to goods, services, or property, whether tangible or intangible, provided by Licensor; and (iv) Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions.

30.1. This Agreement 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 and debt due to the State of Oregon or a political subdivision, including (i) garnishing Licensor’s compensation under this Agreement, or (ii) exercising a right of setoff against Licensor’s compensation relating to this Agreement 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.

31. LICENSOR, BY EXECUTION OF THIS AGREEMENT, HEREBY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.

Licensor:

Signature & Date

Printed Name and Title of Authorized Representative

Services Manager or Other Point of Contact:

Printed Name and Title

Mailing Address

Physical Address

Telephone

Fax

Email

Licensee: State of Oregon acting by and through its [Agency] Signature & Date

Printed Name and Title of Authorized Representative

Licensee Point of Contact:

Printed Name and Title

Mailing Address

Physical Address

Telephone

Fax

Email

APPROVED BY DEPARTMENT OF ADMINISTRATIVE SERVICES, PROCUREMENT SERVICES:

APPROVED BY THE STATE CHIEF INFORMATION OFFICER ACTING AS ENTERPRISE INFORMATION SERVICES:

APPROVED FOR LEGAL SUFFICIENCY BY THE DEPARTMENT OF JUSTICE:

EXHIBIT A

Terms of Service

EXHIBIT B

Insurance Requirements Contractor shall obtain at Contractor’s expense the insurance specified in this Exhibit B prior to performing under this Contract. Contractor shall maintain such insurance in full force and at its own expense throughout the duration of this Contract, and as required by any extended reporting period or tail coverage requirements, and all warranty periods that apply. Contractor shall obtain the following insurance from insurance companies or entities that are authorized to transact the business of insurance and issue coverage in the State of Oregon and that are acceptable to Agency. All coverage must be primary and non-contributory with any other insurance and self-insurance with the exception of Professional Liability and Workers’ Compensation. Contractor shall pay for all deductibles, self-insured retention, and self-insurance, if any.

If Contractor maintains broader coverage and/or higher limits than the minimums shown in this insurance requirement exhibit, Agency requires and shall be entitled to the broader coverage and/or higher limits maintained by Contractor.

All employers, including Contractor, that employ subject workers, as defined in ORS 656.027, shall comply with ORS 656.017, and provide Workers' Compensation Insurance coverage for those workers, unless they meet the requirement for an exemption under ORS 656.126(2). Contractor shall require and ensure that each of its subcontractors complies with these requirements. If Contractor is a subject employer, as defined in ORS 656.023, Contractor shall also obtain employers' liability insurance coverage with limits not less than $500,000 each accident.

If Contractor is an employer subject to any other state’s workers’ compensation law, Contractor shall provide Workers’ Compensation Insurance coverage for its employees as required by applicable workers’ compensation laws including Employers’ Liability Insurance coverage with limits not less than $500,000 and require and ensure that each of its out-of-state subcontractors complies with these requirements.

1.2 Professional Liability.

Contractor shall provide Technology Errors & Omissions Insurance in an amount of not less than $0 (zero) per claim covering Contractor’s liability arising from acts, errors or omissions in rendering or failing to render computer or information technology services, including the failure of technology products to perform the intended function or serve the intended purpose as set forth in this Contract. This insurance must include coverage for violation of intellectual property rights including trademark and software copyright, privacy liability, the failure of computer or network security to prevent a computer or network attack, misrepresentations, and unauthorized access or use of computer system or networks. This insurance must also include coverage for unauthorized disclosure, access, or use of Agency Data (which may include, but is not limited to, Personally Identifiable Information (“PII”), Payment Card Data and Protected Health Information (“PHI”)) in any format. Coverage must extend to Business Associates (if applicable) and independent contractors providing Services on behalf of or at the direction of Contractor.

1.3 Commercial General Liability.

Contractor shall provide Commercial General Liability Insurance covering bodily injury and property damage in a form and with coverage that are satisfactory to the State. This insurance must include personal and advertising injury liability, products and completed operations, contractual liability coverage for the indemnity provided under this Contract, and have no limitation of coverage to designated premises, project, or operation. Coverage must be written on an occurrence basis in an amount of not less than $1,000,000.00 per occurrence and not less than $2,000,000.00 annual aggregate limit.

1. Automobile Liability Insurance.

Contractor shall provide Automobile Liability Insurance covering Contractor’s business use including coverage for all owned, non-owned, or hired vehicles with a combined single limit of not less than $0 (zero) for bodily injury and property damage. This coverage may be written in combination with the Commercial General Liability Insurance (with separate limits for Commercial General Liability and Automobile Liability). Use of personal automobile liability insurance coverage may be acceptable if evidence the policy includes a business use endorsement is provided.

2. EXCESS/UMBRELLA INSURANCE.

A combination of primary and Excess/Umbrella Insurance may be used to meet the required limits of insurance. When used, all of the primary and Excess or Umbrella policies must provide all of the insurance coverages herein required, including, but not limited to, primary and non-contributory, additional insured, Self-Insured Retentions (SIRs), indemnity, and defense requirements. The Excess or Umbrella policies must be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying insurance. No insurance policies maintained by the Additional Insureds, whether primary or Excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Contractor’s primary and Excess liability policies are exhausted.

If Excess/Umbrella insurance is used to meet the minimum insurance requirement, the Certificate of Insurance must include a list of all policies that fall under the Excess/Umbrella insurance.

3. ADDITIONAL INSURED.

All liability insurance, except for Workers’ Compensation, Professional Liability, Directors and Officers Liability and Network Security and Privacy Liability (if applicable), required under this Contract must include an additional insured endorsement specifying the State of Oregon, its officers, employees, and agents as Additional Insureds but only with respect to Contractor's activities to be performed under this Contract. Coverage must be primary and non-contributory with any other insurance and self-insurance.

Regarding Additional Insured status under the General Liability policy, the State requires additional insured status with respect to liability arising out of ongoing operations and completed operations. The Additional Insured endorsement with respect to liability arising out of Contractor’s ongoing operations must be on or at least as broad as ISO Form CG 20 10 and the Additional Insured endorsement with respect to completed operations must be on or at least as broad as ISO form CG 20 37.

4. WAIVER OF SUBROGATION.

Contractor shall waive rights of subrogation which Contractor or any insurer of Contractor may acquire against the Agency or State of Oregon by virtue of the payment of any loss. Contractor will obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the Agency has received a waiver of subrogation endorsement from the Contractor or the Contractor’s insurer(s).

5. CONTINUOUS CLAIMS MADE COVERAGE.

If any of the required liability insurance provided is on a claims made basis and does not include an extended reporting period of at least 24 months, then Contractor shall maintain continuous claims made liability coverage, provided the effective date of the continuous claims made coverage is on or before the effective date of the Contract, for a minimum of 24 months following the later of:

1. Contractor ’s completion and Agency’s acceptance of all Services required under the Contract, or

1. Agency or Contractor termination of this Contract, or

1. The expiration of all warranty periods provided under this Contract.

6. CERTIFICATE(S) AND PROOF OF INSURANCE.

Contractor shall provide to Agency Certificate(s) of Insurance for all required insurance before delivering any goods or performing any Services required under this Contract. The Certificate(s) must list the State of Oregon, its officers, employees, and agents as a Certificate holder and as an endorsed Additional Insured as specified in this exhibit. If excess/umbrella insurance is used to meet the minimum insurance requirement, the Certificate of Insurance must include a list of all policies that fall under the excess/umbrella insurance. As proof of insurance Agency has the right to request copies of insurance policies and endorsements relating to the insurance requirements in this Contract.

7. NOTICE OF CHANGE OR CANCELLATION.

Contractor or its insurer shall endeavor to provide at least 30 (thirty) Calendar Days’ written notice to Agency before cancellation of, material change to, potential exhaustion of aggregate limits of, or non-renewal of the required insurance coverage(s).

8. INSURANCE REQUIREMENT REVIEW.

Contractor agrees to periodic review of insurance requirements by Agency under this Contract and to meet updated requirements as agreed upon by Contractor and Agency.

9. STATE ACCEPTANCE.

All insurance providers are subject to Agency acceptance. If requested by Agency, Contractor shall provide complete copies of insurance policies, endorsements, self-insurance documents and related insurance documents to Agency’s representatives responsible for verification of the insurance coverages required under this Exhibit.

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