S-62800-00012802 Attachment A Sample Contract IT Services Final.pdf

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ATTACHMENT A

STATE OF OREGON

INFORMATION TECHNOLOGY SERVICES CONTRACT

(Consulting Services)

This Information Technology Consulting Services Contract (Contract) is entered into by and between the State of Oregon (State) acting by and through its Oregon Forest Resources Institute (Agency), and_____, an __________ corporation (Contractor) and is effective as of the Effective Date (defined below).

RECITALS

1. Agency desires to engage a Contractor to provide information technology support services (the “Services” as defined below) to enable Agency to achieve specific business and Agency mission objectives defined in this Contract, including professional advice and consultation on IT equipment, transition to Microsoft 365 and record retention. To that end, Agency issued OregonBuys Bid #S-62800-00012802.

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

3. Contractor desires to perform the Services for Agency.

AGREEMENT

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

1. DEFINITIONS.

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

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

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

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

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

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

“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 the Statement of Work within the scope of this Contract.

“Confidential Information” is defined in Section 9.1.

“Contract” means all terms and conditions of this document and all its attachments and exhibits, including as amended.

“Contractor Intellectual Property” means any intellectual property that is owned by Contractor, Documentation, and derivative works and compilations of any Contractor Intellectual Property.

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

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

“Delivery Schedule” means the attributes of the applicable Statement of Work setting forth the completion date of each Milestone, the delivery date for each Deliverable, and other dates relevant to the delivery of Services. The Delivery Schedule includes the current, Accepted Project Implementation Plan and Schedule for the applicable Statement of Work.

“Documentation” means all documents, including documents that are Deliverables described in a Statement of Work and which may include reports, minutes, manuals, training materials, guides, commentary, listings, requirements documentation, and other materials that are to be delivered by Contractor under this Contract. Documentation includes documents in hard copy or electronic form.

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

“EIS” means the State Chief Information Officer acting as DAS’ Enterprise Information Services.

“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.

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“Final Acceptance” criteria are in Section 3.4.

“Intellectual Property Rights” is defined in Section 12.2.

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

“Knowledge Transfer” means activities designed to impart detailed information from Contractor to Agency about Agency IT system. Knowledge Transfer goes beyond formalized training and Documentation to include Contractor ensuring that Agency is able to continue Agency work. 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.

“Maximum Not-To-Exceed Compensation” is defined in Section 6.1.

“Personal Information” is defined in Exhibit I, Privacy and Security Requirements.

“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 D.

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

“Retention Amount” is defined in Section 6.3.

“RFP” means OregonBuys Bid #S-62800-00012802.

“Schedule of Deliverables” means the attributes of a Statement of Work that describe each Task and Deliverable, measurable attributes of each Deliverable and any associated 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.

“Services” means all effort to be expended by Contractor under the Contract, including advice and expertise, and development and delivery of Deliverables and other Work Product.

“State” means the State of Oregon.

“Statement of Work” or “SOW” means the documents that describe the Services to be provided by Contractor, including the Tasks, Deliverables, Documentation, Work Product, the attributes (including requirements and specifications) of each Deliverable, identification of the Tasks and Services that are associated with each Deliverable, and a completion date for each Milestone and Deliverable and any other items as agreed by the parties and attached hereto as

OregonBuys Bid #S-62800-00012802 Attachment A Page 4 of 54 a Statement of Work, including as amended pursuant to Section 7. As used in this Contract, except where otherwise expressly identified as being applicable only to a specific SOW, 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.

“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 the time period specified in Section 3.5.

“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 _________________ with options to renew for two (2) additional four (4) year extensions resulting in a total of twelve (12) years, unless otherwise terminated or extended in accordance with its terms.

3. SCOPE OF SERVICES.

3.1. Performance and Delivery.

3.1.1. Responsibilities of Contractor. Contractor shall perform the Services as set forth in the applicable Statement of Work in accordance with the standards and methodologies set forth in the Statement of Work and elsewhere in this Contract.

Contractor agrees to perform the Services:

3.1.1.1. In compliance with information technology standards established by Enterprise Information Services EIS), found online at:

http://www.oregon.gov/DAS/CIO/ITIP/Pages/IT_Investment_Oversight.aspx, including as updated from time to time.

http://www.oregon.gov/DAS/CIO/ITIP/Pages/IT_Investment_Oversight.aspx

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3.1.2. Contractor shall cooperate with Agency and its designated third parties, including its Quality Assurance contractor, by providing access and information on Contractor’s Services as required for all oversight activities and Agency-identified third party services.

3.2. Responsibilities of Agency. If a Statement of Work requires Agency to provide any resources, and Agency fails to provide the 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 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 applicable 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

711.2. 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 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 Agency in writing that it has completed such modifications or improvements and re-tender the Deliverable to

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

3.4.1. Agency has notified Contractor that Deliverables meet all Acceptance Criteria including as specified in the applicable Statement of Work;

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

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

3.5. Warranty Period. Contractor shall warrant the Accepted Deliverables for a period of ninety (90) Calendar Days following Final Acceptance. During the Warranty Period, Contractor shall, at no additional charge to Agency, furnish such materials and Services necessary to correct any deficiencies in a Deliverable that prevent the Deliverable from meeting its Acceptance Criteria and Contract warranties.

3.6. Performance Metrics. Contractor agrees to meet the performance metrics in the applicable Statement of Work, during the period of performance.

3.6.1. Failure to Perform. If Contractor fails to meet a performance standard, Contractor shall (i) investigate, assemble and preserve pertinent information with respect to, and report on the causes of, the 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.

3.7. 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”).

3.7.1. 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

OregonBuys Bid #S-62800-00012802 Attachment A Page 7 of 54 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:

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

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

3.7.2. 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.

3.7.3. 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.

3.7.4. 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 a 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, but must not reduce Contractor’s obligation under this Contract to provide all Services necessary for Transition. The Transition Period will commence on the 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:

3.7.4.1. The respective Tasks and Deliverables to be completed by each party under the Transition Plan, OregonBuys Bid #S-62800-00012802 Attachment A Page 8 of 54

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

3.7.4.3. 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 Maximum Not-To-Exceed Compensation. If the parties agree Transition Services require new or additional Services that cause an increase in the Maximum Not-To-Exceed Compensation, the Transition Plan will be in the form of a Contract amendment.

3.7.5. The parties will cooperate in good faith with each other in connection with their obligations under this Section 3.7 and will perform their obligations under the 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.

3.7.6. Contractor shall complete the transition of Services 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.

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

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

3.7.7.2. Provide Agency and any Agency-designated provider with all information regarding the Services and Deliverables that these parties will need to complete the Transition Period.

3.7.7.3. 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.

3.7.8. 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.

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4.1. Key Persons. Contractor acknowledges and agrees that Agency selected Contractor, and is entering into this Contract, because of the special qualifications of Contractor's Key Persons identified in Exhibit D. Contractor's Key Persons shall not delegate performance of their powers and responsibilities they are required to provide under this Contract to another Contractor employee(s) without first obtaining the written consent of 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 D deemed amended to include such Key Person. Agency reserves the right to determine if a replacement Key Person has acquired the project knowledge and skills necessary to perform within the twenty-eight (28) Calendar Day period following Agency approval of the replacement Key Person.

4.1.1. 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. 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 subcontractors performing the Services, will perform the Services in accordance with the warranties set forth in Section 11 of this Contract.

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

4.5. 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.

4.5.1. 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 or Key Persons who will perform Services under this Contract;(ii) in the event that Contractor or its personnel are either employed by or performing services for the federal government, that no rules or regulations of the agency for which Contractor or its personnel work or are employed prohibit Contractor or its personnel from providing the Services under this Contract; and (iii) this Contract

OregonBuys Bid #S-62800-00012802 Attachment A Page 11 of 54 and the delivery of Services creates no other violation of ORS Chapter 244 for Contractor, its agents, or subcontractors.

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 the State and all applicable tax laws of any political subdivision of the 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 Two Hundred Fifty Thousand Dollars ($250,000) (the “Maximum Not-To- Exceed Compensation”), which includes payment for any allowable expenses for which Contractor may request reimbursement under this Contract.

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

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

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6.3. Retention Amount. Agency may hold back an amount (the "Retention Amount") of not more than fifteen percent (15%) of any amount that is payable by Agency to Contractor for an Accepted Deliverable. 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.

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. 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 will not be compensated for Services performed under this Contract by any other agency or department of the State of Oregon. OFRI believes it has sufficient funds currently available and authorized for expenditure to finance the costs of this Contract within OFRI’s fiscal year appropriation or limitation.

Contractor understands and agrees that OFRI’s payments under this Contract are contingent on OFRI receiving appropriations, limitations, or other expenditure authority sufficient to allow OFRI, in the exercise of its reasonable administrative discretion, to continue to make payments under 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. RESERVED

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 for legal sufficiency by DOJ. Any amendment that provides for additional Services may only provide for Services directly related to the scope of 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

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7.1. Change Control. Subject to the conditions above, amendments to a Statement of Work 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 a Statement of Work, and related costs. If Contractor requests to make changes to meet Statement of Work 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 the changed Statement of Work 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. Any change in the cost of the Services to be performed pursuant to the Change Order; and

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

7.1.2. A Change Order may alter only that portion of a Statement of Work 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 of Oregon approvals are received.

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7.1.3. Payments. Subject to the foregoing provisions of this Section 7.1 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. 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, 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. Except as specified in Section 8.2.2 and 8.2.3, Contractor owns all Work Product.

Such Work Product is subject to the license in Section 8.1.

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.

8.3. Third Party Intellectual Property. Unless otherwise specified in a Statement of Work that Agency, on its own, will acquire and obtain a license to Third Party Intellectual Property, Contractor shall secure on Agency’s behalf, in the name of Agency and subject to Agency’s approval, a license to Third Party Intellectual Property provided to Agency by Contractor during the term of the Contract necessary for Contractor to deliver Contract Services and Deliverables, including Work Product. 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.

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8.4. Open Source Elements. Any open source materials in the Deliverables or other Work Product 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 Contractor intends to include open source materials,

8.4.2. Identify the specific portion of the Deliverable or Work Product 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, 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, including Agency Data only to fulfill the purposes of this Contract. Agency’s license to Contractor is limited by the term of the Contract and the confidentiality and security 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 Contractor’s obligations with respect to Confidential Information, including as defined in Section 9, nothing in this Contract precludes or limits in any way the right of Contractor to: (i) provide services similar to those contemplated in this Contract, or, consulting or other services of any kind or nature whatsoever to any individual or entity as Contractor in its sole discretion deems appropriate, or (ii) develop for Contractor or for others, deliverables or other materials that are competitive with those produced as a result of the Services provided hereunder, irrespective of their similarity to the Deliverables.

Each party is free to utilize any concepts, processes, know-how, techniques, improvements, or other methods it may develop during the course of performance under this Contract [related to and arising from its own Intellectual Property] free of any use restriction or payment obligation to the other.

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9. CONTRACTOR’S DUTIES OF CONFIDENTIALITY AND NON-DISCLOSURE.

9.1. Confidential Information. Contractor acknowledges that it and its employees, agents, or subcontractors may, in the course of performing the Services under this Contract, be exposed to or acquire information that is confidential to Agency or Agency’s clients.

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

9.2. Non-Disclosure. Contractor, its employees, agents, and subcontractors shall hold Confidential Information in confidence, using the highest standard of care applicable, and shall not copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information to third parties (other than its authorized subcontractors), or use Confidential Information for any purposes whatsoever other than the provision of Services to Agency hereunder, and shall advise each of its employees and agents of their obligations to keep Confidential Information confidential. Contractor shall assist Agency in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the generality of the foregoing, Contractor shall advise Agency immediately in the event Contractor learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Contract, and Contractor will at its expense cooperate with Agency in seeking injunctive or other equitable relief in the name of Agency or Contractor against any such person.

Contractor shall not at any time during or after the term of this Contract, except as directed by Agency, disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this Contract, and that upon termination of this Contract or at Agency’s request, Contractor shall deliver to Agency all documents, papers, and other matter in Contractor's possession that embody Confidential Information. Notwithstanding the foregoing and unless otherwise specified in this Contract, Contractor may keep one copy of such Confidential Information necessary for quality assurance, audits, and evidence of performance of the Services.

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

9.4. RESERVED

9.5. RESERVED

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

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

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

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

192.3501 or ORS 192.502, and the provisions for the custody and maintenance of public records, ORS 192.005 – 192.170.

10.1. Contractor proprietary information is any information marked or designated in writing by Contractor as “confidential” prior to initial disclosure, or information

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

10.3. Agency may disclose and provide copies of Contractor proprietary information to the extent disclosure is required by the Oregon Public Records Law (including ORS

192.311 to 192.478). If Agency receives from a third party any request under the Oregon Public Records Law for the disclosure of Contractor proprietary information, Agency will notify Contractor within a reasonable period of time of the request.

Contractor is exclusively responsible for defending Contractor’s position concerning the confidentiality of the requested information. Notwithstanding the foregoing, while Agency is not required to actively assist Contractor in opposing disclosure of proprietary information, Agency will cooperate in good faith to the extent reasonably practicable with Contractor’s efforts to protect its proprietary information.

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