S-DASOBO-00012374 Attachment A Sample Contract.docx

ATTACHMENT A – SAMPLE CONTRACT

STATE OF OREGON

INFORMATION TECHNOLOGY SERVICES CONTRACT

ALERT IIS SOLUTION AND CLOUD-BASED SERVICES

This Information Technology Services Contract (“Contract”) is entered into by and between the State of Oregon (“State”) acting by and through its Department of Administrative Services, State Procurement Services (“DAS SPS”) on behalf of Oregon Health Authority (“Agency”), and [legal name of contractor as registered with Oregon Secretary of State], an __________ corporation (“Contractor”) and is effective as of the Effective Date (defined below).

RECITALS

Agency desires to engage a Contractor to provide a fully functioning ALERT IIS solution and associated Services, including ongoing support. To that end, DAS SPS issued RFP S-DASOBO-00012374.

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

The State and Contractor agree:

DEFINITIONS.

“Acceptance” or “Accepted” means written confirmation by Agency that Contractor has completed a Deliverable according to its 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 under this Contract, including but not limited to Requirements, specifications for a specific Deliverable set forth in the applicable Statement of Work, applicable law and administrative rules, and the Performance Warranties set forth in Section 11.2.

“Agency Data” means information created, stored, transmitted, shared, used, or generated by the Services, and information created and collected regarding Agency and individuals during the course of Contractor’s provision of the Services, including Personal Information.

“Agency Intellectual Property” means any intellectual property that is owned by Agency, including Agency Data.

“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.

“Business Support Hours” means Monday through Friday, 6:00 a.m. to 6:00 p.m., Pacific Time, on Business Days. Additional support needs may be negotiated, such as core, extended and low priority Business Support Hours.

“Calendar Days” means contiguous days.

“Change Order” means a form of Contract amendment pursuant to Section 7.1 that makes changes to a Statement of Work, Service Level Agreement, or Requirement within the scope of this Contract.

“Confidential Information” is defined in Section 9.1.

“Consumer Privacy Issue” means the sensitive or protected Personal Information of one or more individuals, the personal safety or financial accounts of one or more individuals, or the personal safety or financial accounts of one or more persons in the individual’s household or with whom the individual has a personal relationship, are at risk of harm because Agency Data held, controlled, or accessible by Contractor is shared, exposed, or accessible through unauthorized means.

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

“Contractor Intellectual Property” means any intellectual property owned by Contractor and contained in or necessary for the use of the Deliverables or Services . Contractor Intellectual Property includes software owned by Contractor, including but not limited to the [application] as described in Exhibit F.

“Data Error” means errors in data or results caused by failures in data conversion or failures caused by the Services. Data entry errors are not Data Errors.

“Defect” means a reproducible failure of the Services to operate in accordance with Requirements and with specifications in the applicable Statement of Work, and as required under a Service Level Agreement, despite proper use. A Defect may be due to a Data Error, or a problem with the Services, documentation, or both. Prior to Final Acceptance, a Defect may be due to a missed, missing, or misinterpreted Requirement. Defect Levels will be negotiated with the successful Proposer, but are anticipated to reflect the levels in Exhibit B.

“Deliverable(s)” means all items that Contractor is required to provide to Agency under this Contract.

“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.

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

“Environment” means, as applicable in view of context: (a) a separately established “environment” within a target cloud subscription space of the SaaS, where the target cloud subscription space has more than one separately established “environment,” or (b) a separately established “use context” (as described in Exhibit A) within a target cloud subscription space of the SaaS that need not have more than one separately established “environment,” where the target cloud subscription space comprises multiple “use contexts” and supports them by using one or more strategies, such as (1) on-demand / ephemeral “environments,” (2) time-sliced/rotated “environments,” (3) “environment” profiles, (4) multi-tenancy / shared service layer(s), and (5) auto-scaling/burst-control.

“Final Acceptance” criteria are in Section 3.6.

“Go-Live” means the milestone date identified in a Statement of Work, Change Order, or applicable Accepted Deliverable, on which the Services, component thereof, or an Enhancement will be available for Agency and its users in a production Environment for the processing of transactions in accordance with Requirements and Service Level Agreements. A Go-Live, whether a milestone date or availability, may be associated with the initial implementation of the Services, a specific phase or Enhancement under a Statement of Work, a Change Order, or an Enhancement Order.

“Help Desk Services” means all necessary activities to assist the users to effectively and efficiently use the Services. Support will be negotiated with the successful Proposer, but is anticipated to include the support described in Exhibit B, Service Level Agreements.

“Integration” means the second of two IT systems that communicate with and between each other in a seamless, real-time or near-real time manner, where the first of the two IT systems is an IIS. Integrations comprise external IT components that are utilized in the legacy ALERT IIS (e.g., external forecaster, VTrckS ordering, school or public health, and the like).

“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 D.

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

“Personal Information” means information that can be used to distinguish or trace an individual’s identity either directly or indirectly through linkages with other information. It includes but is not limited to “Personal Information” as defined in ORS 646A.602(12), indirect identifiers, such as a date of birth, and other direct identifiers, such as an individual’s name or identification number, a home address, personal phone number, or personal email. Personal Information includes a code used as a unique identifier in lieu of Personal Information that is otherwise protected by law.

“Public Portal” means the consumer-facing, publicly accessible web portal that provides public access to an Immunization Information System, and that meets applicable Requirements.

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

“Services” means all effort to be expended by Contractor under the Contract, including installation, customization, configuration, implementation, operation, maintenance and support of the Solution, completion of Tasks, and development and delivery of Deliverables and Work Product.

“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 Services, and consequences for not meeting the SLA. The SLA may contain conditions for starting, stopping, and pausing the measurement of the relevant time period. SLAs are in Exhibit B.

“Solution” means the SaaS and Services configured and operated to meet the Requirements, Service Level Agreements, and other performance metrics under this Contract. It may refer to the initial implementation of the Services, an Enhancement, or other change.

“Statement of Work” or “SOW” means one or more of the documents within this Contract that describes the Services to be provided by Contractor, including the Tasks, Deliverables and Project milestones, 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 milestone and Deliverable, and any other items as agreed by the parties and attached hereto as 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.

“Subscription Services” or “Software as a Service” (“SaaS”) means the integrated package of software, applications, platform, technical framework, security infrastructure, and related services delivered by Contractor under this Contract as a subscription.

“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 State or Contractor. Third Party Intellectual Property includes software owned by third parties.

“Upgrade” means upgrades, improvements or changes to the platform or infrastructure (including an Environment) aspects of the Services that are designed to significantly change or otherwise improve operating performance of the Services, and that are generally made available to customers.

“Work Product” means everything that is specifically made, conceived, discovered, or reduced to practice by Contractor or Contractor’s subcontractors or agents pursuant to this Contract, generated by a human, non-human, or some combination thereof. Work Product includes every Deliverable, invention, modification, discovery, design, development, customization, configuration, improvement, software program, application program interface, work of authorship, documentation, formula, macro, script, datum, technique, methodology, process, 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).

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] unless otherwise terminated or extended in accordance with its terms.

SCOPE OF SERVICES.

Performance and Delivery.

Responsibilities of Contractor. Contractor shall deliver the Services as set forth in the applicable Statement of Work and Service Level Agreement, in accordance with the standards and methodologies set forth in this Contract, and employing a methodology that conforms to the highest industry standards, for example standards established by the Project Management Institute (PMI) as described in the current Project Management Body of Knowledge (PMBOK Guide), supplemented by standards set forth in current International Organization for Standardization (ISO), such as 12207.

Contractor’s Duty to Cooperate. Contractor shall cooperate with the State and its designated third parties, including its quality assurance contractor, by providing access and information on the Solution and Services, such as architecture, design, operating environment, security, interfaces, and operating parameters, as required for all oversight activities and Agency-identified third party services.

Digital Accessibility in Content Creation and Sharing, and in Hardware, Software and Systems. Contractor shall deliver Services in conformance with applicable standards for digital accessibility. Applicable standards are those set in law, administrative rule, and ODHS/OHA Operational Policy ODHSOHA 010-030 (Digital Accessibility in Hardware, Software and Systems) and ODHSOHA 010-029 (Digital Accessibility in Content Creation and Sharing), including as those laws, administrative rules, and policies are updated from time to time.

Responsibilities of Agency. If a Statement of Work requires Agency to provide any personnel or 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 20 Business Days, Contractor’s sole remedy is an extension of the applicable delivery dates corresponding to the delay. If Agency’s failure to provide such resources exceeds 20 Business 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.

Delivery and Review of Deliverables.

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 or current Accepted Project Plan. Delivery dates, both critical and non-critical, are subject to Agency performing its responsibilities in a timely manner.

Contractor shall notify Agency in writing on submission of a Deliverable to Agency. By no later than (i) 15 Business Days after receipt of such notice, or (ii) the date set forth for Agency’s review in the current Accepted Project Plan, Agency will determine whether the Deliverable meets its Acceptance Criteria. 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 Deliverable subject to acceptance testing, Agency will conduct testing as set forth in Section 3.4. If Agency determines that the Deliverable meets its Acceptance Criteria in all material respects, Agency will notify Contractor of Agency’s Acceptance in writing.

If Agency determines that a Deliverable does not meet its Acceptance Criteria in all material respects, Agency will reject the Deliverable via written notice, and describe in reasonable detail Agency’s basis for rejection. Upon receipt of this notice, Contractor shall, within a 10 Business Day period, modify or improve the Deliverable at its sole expense so that the Deliverable meets its Acceptance Criteria in all material respects, and resubmit the Deliverable. Agency will thereafter review the resubmitted Deliverable within 10 Business Days. Failure of the Deliverable to meet its Acceptance Criteria in all material respects after the second submission will constitute a default by Contractor. In the event of such default, Agency may either (i) notify Contractor of such default or instruct Contractor to modify or improve the Deliverables, or (ii) notify Contractor of such default and pursue its remedies for default under Section 15 of this Contract.

Testing, Implementation, and Stabilization.

Testing, implementation, and stabilization provisions will be negotiated with the successful Proposer and will reflect the agreed-upon schedule and methodology, but are anticipated to address the following:

Contractor shall configure and implement the Solution in accordance with Exhibit A-1, Implementation Services Statement of Work, and changes following Final Acceptance in accordance with Exhibit A-2. Testing, implementation, and stabilization activities will be in accordance with this Section 3.4. Prior to cutover of the Solution under Exhibit A-1 (including its components, enhancements, or integrations) in the production Environment, Contractor must successfully complete unit testing and integration testing, and security testing with successful results that can be validated by Agency.

Iterative Cycle Testing. Contractor shall perform unit tests for each build object, which will include regression and data validation in accordance with the current Accepted Testing Plan. Following Contractor’s successful completion of a unit test, Contractor will report out to Agency on testing activities.

System Integration Testing (SIT). Contractor shall install and test the Solution in the test Environment in accordance with the current Accepted Project Schedule by using it in off-line processing of test data in order to determine if the Solution is in material conformance with Requirements and design Deliverables, as those Deliverables are Accepted at the time of testing. If Level 1, Level 2, or Level 3 Defects are discovered during SIT, Contractor shall correct such Defects and retest at no additional charge to Agency prior to promoting the Solution to UAT. Contractor shall correct Level 4 Defects and retest at no additional charge to Agency within Agency-approved timeframes.

User Acceptance Testing (UAT). Agency will conduct user acceptance testing in accordance with the current Accepted Project Schedule by testing the Solution to determine if it is in material conformance with Requirements and the Technical Design Document, as that Deliverable is Accepted at the time of this testing, and to determine if the Services will be operational on or before [DATE]. Agency will notify Contractor in writing of each Defect discovered during UAT in accordance with the current Accepted Test Plan and specify its level. Contractor shall correct Defects identified during UAT at no additional charge to Agency, and resubmit the corrected Solution to Agency for retesting within 10 Business Days of a written notice of Defect, unless otherwise agreed upon by Agency. All such retesting will be done on an iterative basis and be completed by Agency no later than 10 Business Days after Contractor submission of the correction, unless otherwise agreed upon by Agency. Contractor shall correct all Level 1, Level 2, and Level 3 Defects in order to meet criteria for Acceptance of UAT results unless otherwise authorized by Agency. Contractor shall correct any remaining Level 4 Defects at no additional charge to Agency within Agency-approved timeframes. Contractor shall update Deliverables, such as the Requirements Traceability Matrix, following successful completion of UAT.

Cutover. After successful completion of UAT and upon Agency’s notice to proceed with the Implementation Task, Contractor shall implement the Solution in the production Environment and complete in coordination with Agency the pre-“Go-Live” activities described in the current Accepted Solution Cutover and Go-Live Plan. The Solution will be used to validate it is functioning in the production Environment, validate the implementation methodology, validate user and other preparedness activities, and to determine if the Solution is in material conformance with Requirements set forth in Exhibit J, and the Functional Specification Design Document as that Deliverable is Accepted at the time of activities under this Section 3.4.4.

1.1.1.1. If Defects are discovered during any phase of implementation, Agency will notify Contractor orally or in writing as soon as reasonably practical, and will provide written notification of a Defect and its level no later than five Business Days after discovery. Upon receipt of such written notice, Contractor shall correct any Level 1, Level 2, and Level 3 Defects at no additional charge to Agency within 10 Business Days from the date of the written notice, and resubmit the corrected Solution to Agency for retesting in accordance with this section. Agency will complete all such retesting no later than 10 Business Days after Contractor submission of the correction, unless otherwise agreed by Agency. Contractor shall correct Level 4 Defects at no additional charge to Agency within Agency-approved timeframes.

Stabilization Period. Upon completion of Cutover under Section 3.4.4, including Contractor’s correction of identified Level 1, Level 2, and Level 3 Defects, Agency will use the Services in the production Environment for a period of 90 Calendar Days to determine if the Solution is stable and operating correctly (the “Stabilization Period”).

During the Stabilization Period, Contractor shall complete stabilization activities in accordance with Exhibit A-1, Implementation Services Statement of Work.

At the end of the Stabilization Period, if any Level 1, Level 2, or Level 3 Defects remain uncorrected, Agency may grant Contractor additional time to correct such Defects. If the Defects are not corrected during that period, unless Agency in its discretion allows additional time for correction, Agency may declare a material breach of this Contract by Contractor.

The parties will set priorities for any Level 4 Defects remaining at the end of the Stabilization Period, and Contractor shall correct such Defects during one or more maintenance release(s) to be delivered on an agreed upon schedule.

Successful completion of the Stabilization Period for the final phase of Implementation will mark the end of the Implementation Task.

Final Acceptance. “Final Acceptance” of the initial implementation of the Solution or a change will occur when the following events have occurred or conditions exist:

Agency has notified Contractor that the Solution and Services meet all Acceptance Criteria and all required testing has been successfully completed, including as specified in Section 3.4 and in the applicable Statement of Work;

The Solution and Services are stable, complete, and operating correctly as specified in Section 3.5 and in the applicable Statement of Work, and without Level 1, Level 2, or Level 3 Defects;

Agency has notified Contractor that State of Oregon authorizations to Accept the Solution have been received;

Solution and Services documentation is complete and inventoried, and related Deliverables are Accepted by Agency;

Artifacts delivered by Contractor meet State of Oregon stage gate review criteria;

Contractor has reconciled all Requirements against the stabilized Solution to ensure Contractor has clearly and transparently met each Requirement; and Contractor has completed and Agency has Accepted Deliverables for User Training and Technical Training as specified in the applicable Statement of Work.

Warranty Period.

Post-Implementation Warranty Period. Contractor shall warrant the Solution implemented under Statement of Work A-1 for a period of 365 Calendar Days following Final Acceptance (“Post-Implementation Warranty Period”). During the Post-Implementation Warranty Period, Contractor shall, at no additional charge to Agency, correct Defects discovered during the Post-Implementation Warranty Period that prevent the Solution from meeting Acceptance Criteria and Contract warranties, even if Contractor’s correction occurs after the end of the Post-Implementation Warranty Period.

Solution Change Warranty Period. Contractor shall warrant Solution changes that modify or enhance the Solution after Final Acceptance, and that are not corrections of Defects identified prior to Final Acceptance, for a period of 90 Calendar Days following Final Acceptance of the implemented Solution change (“Solution Change Warranty Period”). Contractor shall, at no additional charge to Agency, furnish such materials and Services necessary to correct any Defects relating to the Solution change that prevent the Solution from meeting the Acceptance Criteria and Contract warranties, even if Contractor’s correction occurs after the end of the Solution Change Warranty Period.

Ongoing Services. Following Final Acceptance of the Solution implemented under Exhibit A-1, Contractor shall provide Services to Agency and its end users the ongoing Services set forth in this Contract.

Service Level Agreements and Contract Standards. Contractor shall meet all applicable standards for the Services, including at least the Service Level Agreements in Exhibit B, during the Contract term.

Measurement and Monitoring. Contractor shall measure and monitor performance of the Services against all applicable standards and Service Level Agreements. Such monitoring must permit reporting at a level of detail sufficient to verify compliance with Contractual standards and Service Level Agreements, and is subject to audit by Agency. Contractor shall ensure Agency has information and access to monitoring tools and procedures, including for purposes of auditing and verification.

Failure to Perform. If Contractor fails to meet a performance standard, such as a Service Level Agreement or a Security and Hosting Requirement, Contractor shall (i) investigate, assemble and preserve pertinent information with respect to, and report on the causes of, the failure, inclusive of a root cause analysis; (ii) keep Agency apprised of the status of remedial efforts being undertaken with respect to such failure; (iii) minimize the impact of and correct the problem and begin meeting the performance standard; and (iv) take appropriate preventive measures so that the failure does not recur.

1.1.1.2. As provided in Section 15.1, Contractor agrees to pay [the damages, service credits, or liquidated damages specified in Exhibit B] if Contractor fails to provide the Services or Solution as and when required by this Contract or fails to meet the performance standards and 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.

Upgrades. Contractor shall make Upgrades available to Agency when such Upgrades are made available by Contractor (or its subcontractor) to its customers. The parties will confer on any change control or change order process necessary to effect an Upgrade. Contractor will provide release notes describing each implemented Upgrade, when furnished, and documentation for the appropriate user manuals.

Enhancements. Contractor shall deliver Enhancements as agreed upon under the applicable Statement of Work or amendment to this Contract completed in accordance with Section 7, and this Contract will apply to such Enhancement.

Technology Refresh. Contractor intends to provide Agency with SaaS and Services meeting or exceeding industry standards for the duration of the Contract. As such, and subject to the terms and conditions of this Contract, Contractor shall use commercially reasonable efforts to maintain and improve the SaaS and Services consistent with industry standards. Contractor may implement new technologies to better serve Agency and its end users, provided that (i) such actions by Contractor do not impair Agency's rights hereunder or result in any interference with Agency operations at the time of any upgrade; and (ii) such actions by Contractor are undertaken in accordance with and are governed by the terms of this Contract. In the event that Contractor’s maintenance activities or deployment of new technologies would involve changes or interference with Agency’s operations or Agency equipment or facilities used to access the Solution, then Contractor shall request Agency's prior written approval, which will not be unreasonably withheld, conditioned, or delayed. This section does not apply to any deployment of artificial intelligence impacting Agency Data.

Business Continuity Management and Disaster Recovery. Contractor shall deliver and maintain Business Continuity and Disaster Recovery for the Services that are acceptable to Agency. In the event of a disaster, Contractor shall comply with the provisions of, and deliver Services according to, the Business Continuity and Disaster Recovery Plan.

Response to Public Records Requests for Agency Data. DAS SPS and Agency, as executive department agencies of the State, must respond to requests for Agency Data and other public records under Oregon’s Public Records laws (ORS 192.311 to 192.478), within set timeframes. Upon the State’s request, Contractor shall immediately provide access to all responsive documents and records to the State so the State may respond to public records requests for Agency Data in accordance with applicable law.

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

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 will 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:

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

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

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 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 complete wind-down activities as described below.

Transition Plan. Contractor shall deliver a detailed Transition Plan within 14 Calendar Days of Agency’s written notice and request, or otherwise within a timeframe agreed upon by the parties, for Agency review. The Transition Plan may serve as an update to or a confirmation of a Transition Services Task in a Statement of Work. The Transition Plan will not be effective until it is approved by DOJ. This plan will determine the nature and extent of Contractor’s Transition Services obligations and detail the transfer of Services, Agency Data, or both. The Transition Period will commence on the date set in the DOJ-approved Transition Plan; provided, however, if agree to a 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:

1.1.1.5. The Tasks and Deliverables to be completed by Contractor during the Transition Period,

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

1.1.1.7. A schedule identifying the cost (if any) related to each Deliverable. The Transition Plan may reflect 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.

1.1.1.8. 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 Transition Plan. If the Transition Period extends beyond the Contract term, the provisions of this Contract remain in effect for the duration of the Transition Period.

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

1.1.1.9. Complete the transition of Agency Data and Services from Contractor and its subcontractors to Agency and to any provider(s) that Agency designates, without causing any unnecessary interruption of or adverse impact on the Services.

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

1.1.1.11. 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.

1.1.1.12. Promptly and orderly conclude all Services as Agency may direct. This includes the return of property under Section 16.6, documentation of any work in progress, and other measures.

Wind-Down. Upon the later of (i) the termination of this Contract or (ii) termination of the Transition Period, Contractor will cease providing the Solution and will cease to perform all other Services, and Agency will pay Contractor all amounts payable to Contractor for Deliverables, Services, 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.

CONTRACTOR’S PERSONNEL.

Key Persons. Contractor acknowledges that the State 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 the powers and responsibilities they are required to provide under this Contract without first obtaining the written consent of 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 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.

Agency, in its sole discretion, may request reassignment of any Contractor personnel.

In the event 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. 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 14 Calendar Days but not more than 28 Calendar Days, and will be reflected as an adjustment to a fee for a Deliverable associated with the replacement Key Person’s Services.

Project Manager. Contractor shall designate a Project Manager as a Key Person for the initial Implementation of the Solution through at least Final Acceptance. 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 Tasks and Deliverables required to deliver Solution that meet Final Acceptance criteria.

Service Manager. Contractor shall designate a Service Manager as a Key Person for the duration of the Contract. 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. These meetings may occur at Agency’s offices in Salem, Oregon or virtually as agreed by the parties. The Service Manager must:

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

Review the Services and Contractor’s performance throughout the Contract and implement necessary improvements;

Discuss Upgrades and Enhancements to the Services or any new technologies that may be available for Agency;

Address any other Agency-raised issues or concerns; and Provide at Agency’s request such other reports as Agency may request.

Contractor’s Employees and Subcontractors. Contractor shall not use subcontractors to perform the Services without 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.

Anti-Discrimination. Contractor certifies that Contractor has a written policy and practice that meets the requirements described in ORS 279A.112 for preventing sexual harassment, sexual assault, and discrimination against employees who are members of a protected class. Contractor shall maintain such policy and practice in force during the entire Contract term.

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, gender identity, 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 the State to terminate this Contract for cause.

Discussion of Compensation. 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.

2. INDEPENDENT CONTRACTOR; TAXES AND WITHHOLDING.

Independent Contractor Certification. Contractor certifies that Contractor: (i) is an independent contractor; (ii) if required, is registered under ORS chapter 701 or other applicable Oregon statutes to provide labor or services; (iii) has filed and paid federal and state income taxes in the name of its business or a business Schedule C; (iv) furnishes all tools or equipment necessary for the Services; (v) has authority to hire or fire employees; and (vi) assumes financial responsibility for defective workmanship or for service not provided as evidenced by the ownership of performance bonds, warranties, errors and omission insurance or liability insurance relating to the labor or services to be provided. Contractor declares and certifies by execution of this Contract that it is not an “officer,” “employee,” or “agent” of Agency or any other agency of the State, as those terms are used in ORS 30.265.

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

Declaration and Certification as to Conflict of Interest. Contractor 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 ; and (iii) this Contract and the delivery of Services creates no other violation of ORS Chapter 244 for Contractor, its employees, agents, or contractors.

Responsible for Taxes. Contractor is responsible for all federal and state taxes applicable to compensation and other payments paid to Contractor under this Contract. 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.

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.

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.

3. COMPENSATION.

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 ($_____) (the “Maximum Not-To-Exceed Compensation”), which includes payment for any allowable expenses for which Contractor may request reimbursement under this Contract.

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

Payment of Fixed Prices. Agency will pay to Contractor the fixed prices listed in Exhibit H for Deliverables and Subscription Services.

Enhancements and Additional Services. Agency will pay to Contractor the agreed upon fixed prices [or at the agreed upon rate(s)] for Services authorized in accordance with Section 7, the applicable Statement of Work, and Exhibit H.

Expenses. Agency will not pay or reimburse any expenses incurred by Contractor related to the Contract except as authorized in the applicable Statement Work and Exhibit H. Any such authorized travel expenses must comply with the Oregon Travel Policy ( https://www.oregon.gov/das/financial/acctng/pages/travel.aspx), including as it is updated.

Retention. Agency may hold back an amount of not more than 15% of any amount that is payable by Agency to Contractor for the Services [, other than amounts attributable to the purchase of equipment, hardware, or license of any Third Party Intellectual Property or the Subscription Services], for Services to be implemented. Agency will pay the then-accrued retention to Contractor within 30 Calendar Days following Final Acceptance of the related implementation[,]Enhancement, [or Upgrade].

Invoices. Agency will pay Contractor not more than once each month upon Contractor’s submission of a detailed, accurate, invoice that sets forth the amounts due for Services performed, and Deliverables Accepted, by Agency. Each invoice must comply with the requirements of this Section 6, identify the Service fees, Services amounts, and 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 invoice for compliance with the requirements of this section and any other relevant provisions of this Contract, and has the right to dispute noncompliant invoices. All payments to Contractor are subject to ORS 293.462.

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 additional or other Services subject to the amendment. No payment will be made for any Services performed or before the Effective Date or after termination of this Contract.

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.

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 |X| Recipient is a contractor Catalog of Federal Domestic Assistance (CFDA) #(s) of federal funds to be paid through this Contract: 93.268

4. Amendments. This Contract may be amended, modified, or supplemented only by a written amendment signed by State and Contractor . Any amendment that provides for additional goods or Services may only provide for goods or Services directly related to the scope described in the solicitation document, and no amendment will be effective until all required signatures and approvals are obtained. Either the State or Contractor may request a change to this Contract, including to any of its exhibits, by submitting a written proposal describing the desired change to the other party.

Change Control. Subject to the conditions above, amendments to a Statement of Work (Exhibit A), Service Level Agreement (Exhibit B), Business Needs/Solution Requirements (Exhibit J), 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.

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 the applicable Statement of Work, Service Level Agreement, Requirements, and related costs. If Contractor requests to make changes in its design or implementation of the Solution to enable either or both 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 the applicable Statement of Work, Service Level Agreements, Requirements, and related costs (the “Change Order”).

A Change Order must contain:

4.1.1.1. The effective date of the Change Order;

4.1.1.2. A detailed description of the Services to be performed (or not performed) under the Change Order;

4.1.1.3. The particular provision of the Statement of Work, Service Level Agreement, or Requirement to be changed, and a description of how it will be changed;

4.1.1.4. Any Deliverables impacted by the change, and whether the change modifies any applicable project schedule;

4.1.1.5. Whether the changes are to be included in the Services for Cutover;

4.1.1.6. Any change in related costs.

4.1.1.7. A Change Order may alter only that portion of a Statement of Work, Service Level Agreement, Requirements, and related…