S-44300-00012349 Att A-2 Sample Contract.docx

OHA RFP S-44300-00012349 - SWAN Maintenance & Enhancement

ATTACHMENT A-2 - SAMPLE CONTRACT

STATE OF OREGON

INFORMATION TECHNOLOGY SERVICES CONTRACT

(Professional Services) This Information Technology Services Contract (Contract) is entered into by and between the State of Oregon (State) acting by and through its Oregon Health Authority (Agency), and_____, a[n] ______ corporation (“Contractor”) and is effective as of the Effective Date (defined below).

RECITALS

Agency desires to engage a Contractor to provide consulting, maintenance, support, and configuration services (the “Services” as defined below) to enable Agency to achieve specific business and Agency mission objectives defined in this Contract, including professional services and knowledge transfer. To that end, Agency issued RFP # ________.

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

Contractor desires to perform the Services for Agency.

AGREEMENT

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

1. DEFINITIONS.

“Acceptance” or “Accepted” means written confirmation by Agency that Contractor has completed a Deliverable according to the Acceptance Criteria and accepted for purposes of interim payment. The term is distinct from “Final Acceptance.”

“Acceptance Criteria” means the criteria for accepting Deliverables under this Contract, including but not limited to requirements, specifications in the Statement of Work, and the Performance Warranties set forth in Section 11.2.

”Acceptance Tests" means those tests which are intended to determine compliance of Deliverables with the Acceptance Criteria of this Contract.

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

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

“Agency Project Manager” means the person representing Agency who serves as Contractor’s primary point of contact for the Services.

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

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

“Calendar Days” means contiguous days.

“Change Order” means a form of Contract amendment pursuant to Section 7 that makes changes to Exhibit A within the scope of this Contract.

“Confidential Information” is defined in Section 9.1.

“Contract” means all terms and conditions herein and all Exhibits attached hereto.

“Contractor Intellectual Property” means any intellectual property that is owned by Contractor and contained in or necessary for the use of the Deliverables. Contractor Intellectual Property includes Software owned by Contractor, including that described in Exhibit G, Documentation, and derivative works and compilations of any Contractor Intellectual Property.

“DAS” means the State of Oregon acting through its Department of Administrative Services.

“Data Error” – means errors in System data caused by failures in data conversion or failures caused by System processing. Data entry errors are not Data Errors.

“Defect” means a reproducible failure of the Solution to operate in accordance with the Requirements in Exhibit #, specifications under a Statement of Work, or as required under a Service Level Agreement, despite the proper use of the Solution. A Defect may be due to a Data Error, or a problem with the Solution, Documentation, or both.

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

“Delivery Schedule” means that attribute of the Statement of Work setting forth the completion date of each Milestone and the delivery date for each Deliverable.

“Documentation” means all documents, including documents that are Deliverables described in the Statement of Work and which may include any and all reports, requirements documentation, manuals, training materials, guides, commentary, listings, requirements traceability matrices and other materials for use in conjunction with and for the operation of the System and its components under this Contract. Documentation includes documents in hard copy or electronic form.

“DOJ” means the State of Oregon acting through its Department of Justice.

“Effective Date” means the date specified in Section 2 or the date on which this Contract is fully executed and approved according to applicable laws, rules and regulations, whichever is later.

“EIS” means the DAS Enterprise Information Services, through the State Chief Information Officer.

“Enhancements” means improvements to or additional components of the Services that add functionality.

“Final Acceptance” criteria are in Section 3.6.

“Help Desk Support” means all necessary activities to assist the users to effectively and efficiently use the System.

“Intellectual Property Rights” is defined in Section 12.2.

“Key Persons” means Contractor’s Authorized Representative, the Project Manager, and all other Contractor personnel designated as Key Persons in Exhibit E.

“Knowledge Transfer” means activities designed to impart detailed information from Contractor to Agency about System maintenance and configuration. Knowledge Transfer goes beyond formalized training and Documentation to include Contractor ensuring that Agency is able to [describe key activities for which Contractor is to impart information]. Knowledge Transfer includes Agency staff and other resources being integrated into Contractor’s work activities and being an integral part of identifying and resolving issues. Knowledge Transfer activities include ‘shoulder to shoulder’ training, which is informal training with the specific intent of developing skills or knowledge working side by side with Contractor.

“OSCIO” means the Office of the State Chief Information Officer.

“Personal Information” is defined in Section 9.3 [or PSA].

“Production Environment” is defined in the Statement of Work.

“Project Manager” means Contractor’s representative who manages the processes and coordinates the Services with Agency’s Authorized Representative to ensure delivery of the Deliverables and completion of Milestones. Contractor’s Project Manager is the person so identified in Exhibit E.

“Proposal” means Contractor’s proposal in response to the RFP.

“Requirements” are the functions and elements required for the System. Requirements are in Exhibit # and will be managed via Deliverables identified in the Statement of Work.

“RFP” means the Request for Proposal #______.

“Schedule of Deliverables” means the attributes of the Statement of Work that describe each Task, Deliverable, measurable attributes of each Deliverable and Milestone with identification of the Services that are associated with them, and a completion date for each Milestone and Deliverable. The Schedule of Deliverables includes the current, Accepted Project Implementation Plan and Schedule.

“Service Level Agreement” or “SLA” means an agreement that defines specific elements of the Services, periods of time for completing the defined Services, measurable conditions for determining successful completion or performance of the System, and consequences for not meeting the SLA. The SLA may contain conditions for starting, stopping, and pausing the measurement of the relevant time period.

“Services” means all effort to be expended by Contractor under the Contract, including installation, configuration, implementation, maintenance support, warranty services, and support.

“Software” is an all-inclusive term meaning any computer programs, routines, or subroutines supplied by Contractor, including operating software, programming aids, application programs, and software products.

“Statement of Work” or “SOW” means the documents that describe the Services to be provided by Contractor, including the Tasks, Deliverables and Milestones, Documentation, Work Product, the attributes (including requirements and specifications) of each Deliverable, identification of the Deliverables and Services that are associated with each Task, and a completion date for each Deliverable, the Payment Schedule for each Deliverable, and any other items as agreed by the parties and attached hereto as Exhibit A, including as amended pursuant to Section 7. As used in this Contract, except where otherwise expressly identified as being applicable only to a specific Statement of Work, a reference to “Exhibit A,” “SOW” or “Statement of Work” means the applicable Exhibit A (e.g., Exhibit A-1, Exhibit A-2, etc.) individually.[ “Solution” means the sum of the Services, including Work Product, Deliverables, intellectual property, and Documentation described in a Statement of Work that comprises the system, functionality, and operations that Contractor will support under this Contract.

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

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

“Warranty Period” means one of the time periods that begins and ends on the dates specified in Section 3.7.

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

2. TERM.

The Effective Date of this Contract is _________, or the date on which this Contract is fully executed and approved according to applicable laws, rules and regulations, whichever is later. This Contract terminates on [date to be determined at Contract execution, anticipated to be five years from the Effective Date], unless otherwise terminated or extended in accordance with its terms. Notwithstanding the foregoing, the term for any License or Maintenance and Support Agreements attached to this Contract is as specified in those agreements, unless any such term is terminated in accordance with the terms of this Contract.

3. SCOPE OF SERVICES.

3.1. Performance and Delivery.

3.1.1. Responsibilities of Contractor. Contractor shall perform the Services as set forth in each Statement of Work, in accordance with the applicable current, Accepted Project Implementation Plan and Schedule and the standards and methodologies set forth in the Statement of Work and elsewhere in this Contract, including the Service Level Agreements and Performance Standards. Contractor shall perform the Services:

3.1.1.1. Employing a methodology that conforms to the standards established by the Project Management Institute (PMI) as described in the Project Management Body of Knowledge (PMBOK), Sixth Edition (PMBOK Guide, ANSI/PMI 99-001-2017), supplemented by standards set forth in ISO 12207; and

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

3.1.2. Contractor shall cooperate with Agency and its designated third party contractors by providing access and information on Contractor’s Services (such as architecture, design, operating environment, security, interfaces, and operating parameters) as required for all oversight activities and Agency-identified third party services.

3.1.3. If Agency elects to have Contractor provide hardware, Contractor shall deliver any hardware to Agency, F.O.B. destination, to the destination specified by Agency, and according to the delivery schedule approved by Agency. Title for the hardware will pass to State for each piece of hardware on the date of Final Acceptance. During the period that hardware is in transit, and until the hardware is tendered to enable Agency to take delivery of the hardware, Contractor and its insurers, if any, relieve Agency and State of the responsibility for all risk of loss of, or damage to, the hardware. Thereafter, all risk of loss of, or damage to, the hardware will be borne by Agency.

3.2. Responsibilities of Agency. If this Contract requires Agency to provide any resources, and Agency 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 thirty (30) Calendar Days, Contractor's sole remedy is an extension of the applicable delivery dates corresponding to the delay caused by Agency. If Agency's failure to provide such resources exceeds thirty (30) Calendar Days and Contractor can show to the reasonable satisfaction of Agency, that the Agency'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 Agency 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 Agency with reasonable notice of Agency's failure and Contractor uses commercially reasonable efforts to perform notwithstanding Agency's failure to perform.

3.3. Delivery and Review of Deliverables.

3.3.1. Contractor shall deliver Deliverables as set forth in the Statement of Work by no later than the date or dates set for delivery in the Statement of Work. Delivery dates, both critical and non-critical, are set forth in the Statement of Work and are subject to Agency performing its responsibilities in a timely manner.

3.3.2. Contractor shall provide written notice to Agency upon delivery of a completed Deliverable to Agency. By no later than (i) fifteen (15) Business Days after receipt of such notice, or (ii) the date set forth for Agency’s review in the current Accepted Project Implementation Plan and Schedule, Agency will determine whether the Deliverable meets Acceptance Criteria set forth in the Contract. Acceptance Criteria includes all requirements for a Deliverable and associated Services described in the Statement of Work, and the Performance Warranties in Section 11.2. With respect to any Deliverables that are susceptible to Acceptance Testing, Agency will conduct interim Acceptance Testing as set forth in Section 3.4. If Agency determines that the Deliverable meets, in all material respects, Acceptance Criteria, Agency will notify Contractor of Agency’s Acceptance in writing.

3.3.3. If Agency determines that a Deliverable does not meet the Acceptance Criteria in all material respects, Agency will notify Contractor in writing of Agency’s rejection of the Deliverable, and describe in reasonable detail in such notice the Agency’s basis for rejection of the Deliverable. Upon receipt of notice of non-acceptance, Contractor shall, within a fifteen (15) Business Day period, modify or improve the Deliverable at Contractor’s sole expense so that the Deliverable meets, in all material respects, the Acceptance Criteria, and notify the Agency in writing that it has completed such modifications or improvements and re-tender the Deliverable to Agency. Agency will thereafter review the modified or improved Deliverable within fifteen (15) Business Days of receipt of the Contractor's delivery of the Deliverable. Failure of the Deliverable to meet the Acceptance Criteria in all material respects after the second submission will constitute a default by Contractor. In the event of such default, Agency may either (i) notify Contractor of such default or instruct Contractor to modify or improve the Deliverables as set forth in this section, or (ii) notify Contractor of such default and pursue its remedies for default under Section 15 of this Contract.

3.4. Acceptance Testing. Reserved.

3.5. Stabilization Period. Reserved.

3.6. Final Acceptance. “Final Acceptance” of Deliverables will occur when the following events have occurred or conditions exist:

3.6.1. Agency has notified Contractor that Deliverables meet all required Acceptance Criteria and have been successfully completed as specified in in the Contract.

3.6.2. All Documentation is complete, inventoried, and Accepted by the Agency. Contractor shall provide all text Documentation both in hard copy and in an electronic format as specified in the Statement of Work;

3.6.3. All Software, configuration data, and System configuration information are complete, and are stored and controlled under a configuration management system) as specified in the Statement of Work;

3.6.4. Contractor has delivered all source code and Documentation in accordance with the terms of this Contract, including the Statement of Work;

3.6.5. Agency has notified Contractor that State of Oregon authorizations to Accept the Deliverables have been received.

3.7. Warranty Period.

3.7.1. Post-Implementation Warranty Period. Contractor shall warrant the Accepted Deliverables for a period of ninety (90) Calendar Days following Final Acceptance. During the Post-Implementation Warranty Period, Contractor shall, at no additional charge to Agency, furnish such materials and Services necessary to correct any defects in the System that prevent the System from meeting the Acceptance Criteria and Contract warranties. Contractor shall cure defects discovered during the Period that prevent the System from meeting the Acceptance Criteria and Contract warranties.

3.7.2. System Change Warranty Period. Contractor shall warrant System changes that modify or enhance the System Accepted at Final Acceptance, and that are not Defect corrections, for a period of ninety (90) Calendar Days following Acceptance of the implemented System change. Contractor shall, at no additional charge to Agency, furnish such materials and Services necessary to correct any Defects relating to the System change that prevent the System from meeting the Acceptance Criteria and Contract warranties. Contractor shall cure Defects discovered during the System Change Warranty Period that prevent the System from meeting the Acceptance Criteria and Contract warranties.

3.8. Performance Standards and Service Level Agreements.

3.8.1. Contractor agrees to meet the performance standards Exhibit A, Statement of Work, during the Contract term. As needed to meet the Requirements, specifications, and the performance standards of the Contract, Contractor shall provide, maintain, and upgrade any Deliverables required for delivery and operation of the System.

3.8.2. Failure to Perform.

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

3.8.2.2. As provided in Section 15.1, Contractor agrees to pay the service credits or liquidated damages specified in Exhibit B if Contractor fails to provide Deliverables and Services as and when required by a Statement of Work or the Service Level Agreements specified in Exhibit B. This section does not limit Agency’s rights with respect to the events upon which Agency may rely as a basis for Agency’s termination of this Contract for cause.

3.9. Transition Services. Contractor shall provide transition services to support a responsible and secure transition of Services and Agency Data to another service provider or to Agency (“Transition Services”).

3.9.1. Upon receipt of a notice prior to expiration that Agency will engage Contractor’s Transition Services, or receipt of notice of termination and notwithstanding the reason for termination (whether for cause or without cause and whether by Contractor or Agency, and whether for all or some Services), Contractor shall continue to provide Services and shall provide Transition Services as described in the Transition Plan (defined below) for the period set in the notice and in the subsequent Transition Plan (the “Transition Period”), on the following conditions:

3.9.1.1. Agency is up-to-date with its undisputed payment obligations at the commencement of the Transition Period, and

3.9.1.2. Agency pays all undisputed invoices during the Transition Period in accordance with its obligations referenced in Section 6.

3.9.2. If during the Transition Period Contractor believes Agency is not in compliance with the foregoing conditions, Contractor shall give Agency written notice of such noncompliance and Agency will have fifteen (15) Business Days, or such longer period to which the parties may agree, to correct the noncompliance before Contractor may end the Transition Period and move to the Wind-Down Phase described below.

3.9.3. Following receipt of the notice of termination (whether or not Contractor or Agency initiated the termination), Contractor shall not, without Agency’s prior written consent, which will not be unreasonably withheld, transfer, reassign, or otherwise redeploy any of Contractor’s personnel from providing Services under this Contract.

3.9.4. Transition Plan. Contractor and Agency will outline a Transition Plan, which may be requested pursuant to a notice of termination or in anticipation of the Contract terminating in accordance with its terms. The Transition Plan may serve as an update to or a confirmation of a Transition Services Task in the Statement of Work. Contractor shall deliver a detailed Transition Plan within fourteen (14) Calendar Days of Agency’s written request, or otherwise within a timeframe agreed upon by the parties, for Agency review. The Transition Plan will not be effective until it is approved by the Oregon Department of Justice (“DOJ”). This plan will determine the nature and extent of Contractor’s Transition Services obligations and detail the transfer of Services and Agency Data, but must not reduce Contractor’s obligation under this Contract to provide all Services necessary for Transition. The Transition Period will commence on the start date set in the DOJ-approved Transition Plan; provided, however, if Contractor does not deliver an acceptable Transition Plan on or before the Contract termination date, then the parties will abide by a draft of the plan promulgated by Agency until the Transition Plan is approved by DOJ. The Transition Plan must address at least:

3.9.4.1. The respective Tasks and Deliverables to be completed by each party under the Transition Plan,

3.9.4.2. A schedule pursuant to which such Tasks and Deliverables will be completed, and

3.9.4.3. A schedule identifying which party is responsible for paying the cost (if any) related to each Task and Deliverable. This schedule may include Transition Services that will not exceed the current Contract NTE. If the parties agree Transition Services require new or additional Services that cause an increase in the Contract NTE, the Transition Plan will be in the form of a Contract amendment.

3.9.5. The parties will cooperate in good faith with each other in connection with their obligations under this Section 3.9 and will perform their obligations under the DOJ-approved Transition Plan. If the Transition Period extends beyond the Contract term, the provisions of this Contract will remain in effect for the duration of the Transition Period.

3.9.6. Contractor shall complete the transition of Services and Agency Data from Contractor and its subcontractors to Agency and to any providers that Agency designates, without causing any unnecessary interruption of or adverse impact on the Services.

3.9.7. Without limiting the generality of the aforementioned obligations, Contractor shall:

3.9.7.1. Cooperate with Agency and any Agency-designated provider by promptly taking all steps required to assist Agency in completing the Transition Plan.

3.9.7.2. Provide Agency and any Agency-designated provider with all information regarding the Services, Agency Data, and Deliverables that these parties will need to complete the Transition Period. This includes data conversions, data access or transfers, and interface specifications.

3.9.7.3. Promptly and orderly conclude all Services as Agency may direct. This includes the documentation of work in progress, return of property under Section 16.6, and other measures to provide an orderly transition to Agency and any Agency-designated provider.

3.9.8. Wind-Down. Upon the later of (i) the termination of this Contract or (ii) termination of the Transition Period, Contractor will cease to perform Services, and Agency will pay Contractor all amounts payable to Contractor for Deliverables and Services delivered, and pre-approved expenses incurred through the end of the Contract or Transition Period; provided, however, when such termination is due to the breach or bankruptcy of Contractor, Agency will not be required to pay any amounts claimed by Contractor to be due until Agency determines what, if any, setoffs are required and the remedies owed to Agency are either agreed upon by Contractor through a settlement or ordered by a court of competent authority.

4. CONTRACTOR’S PERSONNEL.

4.1. Key Persons. Contractor acknowledges and agrees that Agency selected Contractor, and is entering into this Contract, because of the special qualifications of Contractor's Key Persons identified in Exhibit E. Contractor's Key Persons shall not delegate performance of their powers and responsibilities they are required to provide under this Contract to another Contractor employee(s) without first obtaining the written consent of the Agency. Further, Contractor shall not re-assign or transfer a Key Persons to other duties or positions such that the Key Person is no longer available to provide the Agency with the required expertise, experience, judgment, and personal attention, without first obtaining Agency's written consent to such re-assignment or transfer, which Agency will not unreasonably withhold or delay. Notwithstanding the foregoing, Contractor may replace Key Persons without Agency’s consent in the event any Key Persons are no longer available due to circumstances beyond Contractor’s reasonable control, such as death, illness, or termination of employment with Contractor. In the event Contractor requests that Agency approve a re-assignment or transfer of the Key Persons, or if Contractor must replace Key Persons, Agency may interview, review the qualifications of, and approve or reject the proposed replacement(s) for the Key Persons. Any such replacement must have substantially equivalent or better qualifications than the Key Person being replaced. Any replacement personnel approved by Agency will thereafter be deemed a Key Person for purposes of this Contract and Exhibit E deemed amended to include such Key Person. Agency reserves the right to determine if a replacement Key Person has acquired the project knowledge and skills necessary to perform within the twenty-eight (28) Calendar Day period following Agency approval of the replacement Key Person.

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

4.2. Project Manager. Contractor shall designate a Project Manager as a Key Person for the Services. The Project Manager shall be familiar with Agency’s business operations and objectives. The Project Manager will participate with Agency in periodic review sessions and will provide at Agency’s request detailed progress reports that identify completed tasks and the status of the Services and Deliverables.

4.3. Service Manager. Contractor shall designate a Service Manager as a Key Person for the operations and maintenance of the System. The Service Manager shall be familiar with Agency’s business operations and objectives. The Service Manager will participate with Agency in regular meetings to be held, at least quarterly unless requested more frequently by Agency, at Agency’s offices in Salem, Oregon. The Service Manager must:

4.3.1. Provide measurement and monitoring reports to verify compliance with the Service Level Agreements;

4.3.2. Review System and Contractor’s performance throughout the Contract and discuss possible improvements;

4.3.3. Discuss changes and Enhancements to the System or any new technologies that may be available for Agency;

4.3.4. Discuss any other Agency-raised issues or concerns; and

4.3.5. Provide at Agency’s request such other reports as Agency may request.

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

4.5. Anti-Discrimination. Contractor certifies that Contractor has a written policy and practice that meets the requirements described in House Bill 3060 (2017 Oregon Laws, chapter 212, codified at ORS 279A.212) for preventing sexual harassment, sexual assault, and discrimination against employees who are members of a protected class. Contractor agrees, as a material term of this Contract, to maintain such policy and practice in force during the entire Contract term. Contractor’s failure to maintain such policy and practice constitutes a breach entitling Agency to terminate this Contract for cause.

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

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

5. INDEPENDENT CONTRACTOR; TAXES AND WITHHOLDING.

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

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

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

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

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

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

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

6. COMPENSATION.

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

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

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

6.2.2. Payment of Contingency Prices.

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

6.4. Expenses. Agency will not pay or reimburse any expenses incurred by Contractor during the completion of the Services except as authorized in the Statement Work and Exhibit L. Any such authorized travel expenses must comply with the Oregon Travel Policy.

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

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

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

6.8. Contractor or Subrecipient Determination.

In accordance with the Oregon State Controller’s Oregon Accounting Manual, policy 30.40.00. 104, Agency’s determination is that:

|_| Recipient is a subrecipient |_| Recipient is a contractor Catalog of Federal Domestic Assistance (CFDA) #of federal funds to be paid through this Contract: 93.898

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

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

7.1.1. Analysis of Change Requests; Change Orders. The parties will analyze each change request (that has not been rejected) in accordance with the authorized change control process to determine the effect that the implementation of the change will have on Exhibit A, Statement of Work, Exhibit B, Performance Standards, and related costs. If Contractor requests to make changes in its design or implementation of the System to enable the System to meet Requirements, such changes will be made at no cost to Agency, unless such changes are due to the failure of Agency or its agents to perform their responsibilities in a timely manner. If the analyzed change request is mutually approved, the agreed-upon party will prepare a written change order, detailing all modifications to Exhibit A, Exhibit B, and related costs (the “Change Order”). A Change Order at a minimum must contain:

7.1.1.1. The effective date of the Change Order;

7.1.1.2. A detailed description of the Services to be performed under the Change Order;

7.1.1.3. The particular specification or matter in the Contract which will be altered, and the precise scope of that alteration;

7.1.1.4. Whether the Change Order modifies critical path Deliverables or Milestones;

7.1.1.5. Whether the changes are to be included in the System for Implementation;

7.1.1.6. Any change in the cost of the Services to be performed pursuant to the Change Order; and

7.1.1.7. The cumulative cost changes of all Change Orders previously issued.

7.1.2. A Change Order may alter only that portion of Exhibit A, Exhibit B, and related costs to which it expressly relates and must not otherwise affect the terms and conditions of this Contract. Both parties must sign the Change Order to authorize the Services described therein and incorporate the changes into this Contract. No Services may be performed pursuant to the Change Order and no payment will be made on account of the Change Order until the Change Order is fully executed and all required State approvals are received.

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

8. OWNERSHIP AND LICENSES.

8.1. Contractor Intellectual Property. Contractor retains ownership of all Contractor Intellectual Property that Contractor delivers to Agency pursuant to the Services performed under this Contract. Contractor grants Agency a license to Contractor Intellectual Property as set forth in Exhibit G. In the event that Work Product is Contractor Intellectual Property, a derivative work based on Contractor Intellectual Property, or a compilation that includes Contractor Intellectual Property, and provided Agency has paid any applicable licensing fee, Contractor grants Agency a perpetual non-exclusive, irrevocable, royalty-free, world-wide license to use, copy, display, distribute, transmit and prepare derivative works of Contractor Intellectual Property employed in the Work Product, and to authorize others to do the same on Agency’s behalf.

8.2. Work Product.

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

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

8.2.3. Federally Funded Work Product. Agency has all right, title, and interest (including ownership of copyright and trademark) to Work Product for which it pays, to any extent, with federal funds. Work Product is funded by Agency with federal funds provided by [federal agency]. [Federal agency] reserves a royalty-free, nonexclusive, and irrevocable license to reproduce, publish, or otherwise use, and to authorize others to use for federal government purposes, such Deliverable.

8.2.4. Agency grants Contractor a perpetual non-exclusive, irrevocable, royalty-free, world-wide license to use, copy, execute, perform, modify, display, distribute, and transmit the Work Product to other governmental entities, and to prepare derivative works of Work Product, and to authorize others to do the same on Contractor’s behalf, for other governmental entities.

8.2.5. Contractor shall not charge a development, licensing or user fee to any state, federal, or local governmental entity when distributing copies of, and transferring or sublicensing rights to the Work Product to such entity. Contractor may recover costs of transferring or making such Work Product available from the receiving entity. For purposes of Section 8.5, Contractor’s exercise of its right to transfer or sublicense according to this Section 8.2 will be considered an activity performed by Contractor under this Contract.

8.3. Third Party Intellectual Property. Unless otherwise specified in Exhibit A that Agency, on its own, will acquire and obtain a license to Third Party Intellectual Property, Contractor shall secure on Agency’s behalf, in the name of Agency and subject to Agency’s approval, a license to Third Party Intellectual Property provided to Agency by Contractor during the term of the Contract necessary for Contractor to deliver Contract Services and Deliverables. Licenses for Third Party Intellectual Property are set forth in Exhibit G, and Exhibit G will be deemed to include any additional licenses for Third Party Intellectual Property approved by Agency. In the event that Work Product is Third Party Intellectual Property, a derivative work based on Third Party Intellectual Property, or a compilation that includes Third Party Intellectual Property, Contractor shall secure on Agency’s behalf and in the name of Agency an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Third Party Intellectual Property and the pre-existing elements of the Third Party Intellectual Property employed in the Work Product, and to authorize others to do the same on Agency’s behalf.

8.4. Open Source Elements. Any open source materials in the System for which Agency may be subject to a license must be approved in advance and in writing by Agency. If Contractor desires to include open source materials, Contractor shall:

8.4.1. Notify Agency in writing that the System contains open source materials,

8.4.2. Identify the specific portion of the System that contain open source materials, and

8.4.3. Provide a copy of the applicable license for each open source item to Agency.

8.5. Agency Intellectual Property. Agency owns all Agency Intellectual Property, including Agency Data and background information provided to or collected by Contractor pursuant to this Contract. Agency grants Contractor a non-exclusive, royalty-free, world-wide license to use, copy, display, distribute, transmit and prepare derivative works of Agency Intellectual Property, Agency Data and background information, and Work Product only to fulfill the purposes of this Contract. Agency’s license to Contractor is limited by the term of the Contract and the confidentiality obligations of this Contract.

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

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

8.8. Competing Services. Subject to the provisions of this Section 8, and…