MASTER SOFTWARE AS A SERVICE AGREEMENT

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Source: http://www.oregon.gov/DAS/CIO/ITIP/docs/saas/pa0461_contract.pdf

 

 

MASTER SOFTWARE AS A SERVICE AGREEMENT

Price Agreement No. 0461

(Software and Related Products)

 

 

This Master Software as a Service Agreement ("Master Agreement') is by and between the State of Oregon ("State") acting by and through the Department of Administrative Services, State Procurement Office ("DAS SPO") on behalf of state agencies or departments and ORCPP members ("Authorized Purchasers"), and USA.NET, Inc., a  Delaware  corporation ("Contractor").     This Master Agreement is effective when fully executed and approved in accordance with applicable laws, rules and regulations ("Effective Date").

 

RECITALS

 

A.            The State desires to enter into a Master Agreement with a Contractor to provide Hosted Email Services and other Services to Authorized Purchasers pursuant to the terms of this Master Agreement.

 

B.        Contractor desires to perform the Services at the request of  Authorized Purchasers pursuant to

Contracts entered into pursuant to this Master Agreement.

 

AGREEMENT DAS SPO arid Contractor agree as follows:

 

1.  DEFINITIONS.

 

"Acceptance" means written confirmation by Authorized Purchaser that Contractor has completed a Deliverable in accordance with the acceptance criteria and accepted for purposes of interim payment.  The term is distinct from "Final Acceptance".

 

"Authorized Purchaser" means a department of the State of Oregon or any ORCPP member that enters into a Contract with Contractor under the terms and conditions of the Master Agreement.

 

"Authorized Purchaser Data" means all data created by or in any way originating with Authorized Purchaser, and all data that is the output of computer processing of or other electronic manipulation of any data that was created by or in any way originated with Authorized Purchaser, whether such data or output is stored on Authorized Purchaser's hardware, Contractor's hardware or  exists in  any system owned,  maintained or otherwise controlled by Authorized Purchaser or by Contractor.

 

"Authorized Purchaser Intellectual Property" means any intellectual property that is owned by Authorized Purchaser. Authorized Purchaser Intellectual Property includes any derivative works and compilations of any Authorized Purchaser Intellectual Property.

 

"Authorized Representative' means a person representing a party to this Master Agreement or a person representing a party to a Contract who is authorized to make commitments and decisions on behalf of the party regarding the performance of this Master Agreement or Contract. Contractor's Authorized Representative is • the person so identified in Exhibit G. DAS SPO or Authorized Purchaser's Authorized Representative is the person so identified in Exhibit H or, Contract, as appropriate.

 

"Contract" means the agreement between Authorized Purchaser and Contractor entered into pursuant to and that incorporates by reference the terms and conditions of the Master Agreement, in a form similar to the SaaS Subscription Agreement attached hereto as Exhibit C-1 or the Contract (Professional Services) attached hereto as Exhibit C-2.

 

"Contractor Intellectual Property'' means any intellectual property that is owned by Contractor and contained in or necessary for the use, or optimal use, of the Deliverables.   Contractor Intellectual Property includes Documentation, Work Product, and derivative works and compilations of any Contractor Intellectual Property. Contractor Intellectual Property does not include COTS Software.

 

"Deliverables" means the  Services and all software that Contractor is required to  deliver to  Authorized Purchaser under this Master Agreement.

 

"DAS SPO" means the State of Oregon, acting by and though it's Department of Administrative Services, State Procurement Office.

 

"Desktop Specification" means Contractor's recommended minimum technical specifications required to access and utilize t'he SaaS Software Applications specified on a Contract and in accordance with the Contract's service levels as set forth In Exhibit J.

 

"Documentation" means all documents, including documents that are Deliverables described in the Contract and includes, but is not limited to, any and all operator's and user's manuals, training materials, guides, commentary, listings, requirements traceability matrices and other materials for use in conjunction with and for the operation of Services that are to be delivered by Contractor under the Contract.

 

"Professional Services" means the services provided to Authorized Purchaser by Contractor under this Master Agreement that are not included in the definition of Subscription Services; Professional Services shall include, but not be limited to, consulting, implementation, customization and other services provided to Authorized Purchaser by  Contractor under  this  Master Agreement, together with all documentation provided by or otherwise required of Contractor for any of the consulting, implementation, customization or other services it provides.

 

"ORCPP' means  the Oregon Cooperative Purchasing Program, which recognizes certain agencies and organizations within the State of Oregon as authorized to purchase the goods and services available under a master agreement or price agreement entered into by the State.  ORCPP members can be verified via the following webpage:  http://egov.oregon.gov/DAS/PFSS/SPO/coop-menu.shtml or by contacting DAS SPO at (503) 378-2497.

 

"SaaS Software Application' and "SaaS Software" mean the computer software listed on a SaaS Subscription Schedule to which Contractor has granted Authorized Purchaser access and use as part of the Subscription. This includes any customization, other derivative works, upgrades, releases, fixes, patches, etc. related to the software that Contractor develops or deploys during the term of this Master Agreement, together with all documentation provided by or otherwise required of Contractor for any of the software, customization, other derivative "Yorks, upgrades, releases, fixes, patches, etc.

 

"SaaS Subscription Schedule" means the document, executed by both Parties that sets out the Parties' rights and obligations with respect to Authorized Purchaser's access to and use of the Saas Software Application, in the form attached hereto as Exhibit C-1.

 

"Service Levels" means the performance specifications for work performed by Contractor, as set forth in Exhibit J.

 

"Services" means Professional and/or Subscription Services.

 

"Subscription Services" means Authorized Purchaser's access to and use of and Contractor's provision of the SaaS Software Applications and other services listed on a Contract, in accordance with the terms and conditions set forlh in the Contract.

 

"Third Party Intellectual Property" or "Third Party Products" means any intellectual property owned by parties other than Authorized Purchaser or Contractor and provided to Authorized Purchaser or its Users for use in connection with the Services.

 

"User' means Authorized Purchaser's employees, agents, consultants, outsourcing companies, contractors and ot'hers who are authorized by Authorized Purchaser to access and use the SaaS Software Applications and any part or portion of the Subscription Services or Professional Services in the performance of their duties for Authorized Purchaser.

 

"User Information" means all information directly or indirectly obtained from Users accessing the SaaS Software Applications where such information is obtained by Contractor or by any of its employees, representatives, agents or any Third Parties having contractual privity with Contractor or who are under Contractor's supervision or control.

 

2.   SERVICES.

 

2.1.     SUBSCRIPTION AND PROFESSIONAL SERVICES TO BE PROVIDED.

 

2.1.1.  Subscription and Professional Services.  Contractor shall provide and Authori;:ed Purchaser may acquire the Professional Services and the Subscription Services as described in Exhibit A of this Master Agreement.  As part of the Professional Services and the Subscriptions Services, Contractor shall manage the recordation of User Information.  Such User Information shall be treated as Authorized Purchaser's Confidential Information.

 

2.1.2.  SeaS Subscription Schedules and Contacts.

 

2.1.2.1.  SaaS Subscription Schedules.  From time to time, Authorized Purchaser and Contractor may execute SaaS Subscription Schedules, in substantially the  same form as the sample SaaS Subscription Schedule attached to this Master Agreement as Exhibit C-1, for Authorized Purchaser's access to and use of the SeaS Software, together with any applicable Service Levels (as set forth in Exhibit J, attached hereto and made a part hereof), maintenance, support and any other services. Each SaaS Subscription Schedule is subject to this Master Agreement and must include the mandatory language set forth in section 2.1.2.2.

 

2.1.2.2.  Mandatory language:

 

THIS SUBSCRIPTION SCHEDULE (OR CONTRACT, AS APPLICABLE) IS ENTERED INTO PURSUANT TO MASTER AGREEMENT #0461 AND IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH THEREIN.   THE TERMS AND CONDITIONS OF THE MASTER AGREEMENT APPLY TO THIS CONTRACT AND TAKE PRECEDENCE OVER ALL OTHER CONFLICTING TERMS AND CONDITIONS, EXPRESS OR IMPLIED.

 

2.1.2.3.  The terms and conditions of each SaaS Subscription Schedule shall be independent of, and shall have no impact upon, the provisions of any other SaaS Subscription Schedule.

 

2.1.2.4.  Contract and Statements of Work.  Any Professional Services, including, but not limited to, consulting, implementation or  customization services  provided by  Contractor under this  Master Agreement, shall be defined on uniquely numbered Contracts and statements of work.                A sample Contract is attached to this Master Agreement as Exhibit C-2.  Each Contract is subject to this Master Service Agreement and must contain the language set forth in section 2.1.2.2 above.

 

2.2.       RELATED PRODUCTS.

 

2.2.1.  All Products, if any, to be supplied by Contractor to Authorized Purchaser will be new unless expressly authorized by Authorized Purchaser.

 

2.2.2.  Contractor ohall deliver the Products to Authorized Purchaser F.O.B. to the destination spedfied in the Contract in accordance with the Delivery Schedule. During the period that Products are in transit, and up until the lime that the Products are tendered so as to enable Authorized Purchaser to take delivery of the Products, Contractor and its insurers, if any, telieve the Authorized Purchaser and the State of Oregon of the  responsibility  for all risk  of loss  of, or damage  to, the Products.  Thereafter,  all risk of loss of, or damage to, the Products shall be borne by the Authorized Purchaser.

 

2.3.       RESPONSIBILITIES  OF AUTHORIZED PURCHASER.

 

If the Contract requires Authorized Purchaser to provide any software, goods or services, and Authorized Purchaser fails to provide the requisite quality or quantity of such software,  goods  or  services,  or  fails  to  provide  such  software,  goods  or  services  in  a  timely  manner, Contractor's  sole remedy  shall be an extension of the applicable  delivery  dales  corresponding  to the delay caused by Authorized Purchaser's failure provided, however, that the extension will not exceed thirty (30) days from the date of Authorized Purchaser's failure to provide the requested Item, and thereafter, termination upon ten (10) days notice unless the failure is remedied before the effective date of termination.

 

2.4.       ACCEPTANCE OF SERVICES/ FINAL ACCEPTANCE

 

2.4.1.   Contractor shall commence  the Services and other work, as set forth in the specific Contract by no later than the date or dates set forth. Interim dates, both critical and non-critical, will be set forth and are subject to Authorized Purchaser performing its responsibilities in a timely manner.

 

2.4.2.   Unless otherwise  provided  in a Contract, within ten (10) business days after commencement of the Services, Authorized Purchaser shall perform any acceptance tests to determine whether the Services meet the acceptance criteria. If the  acceptance  tests  establish,  that the Services  conform  to  the acceptance criteria, then Authorized Purchaser shall issue written notice of Acceptance to Contractor, and "Final Acceptance" shall be deemed to have occurred.

 

2.4.3.   If the Services do not meet the acceptance criteria, Authorized Purchaser shall notify Contractor in writing of Authorized Purchaser's rejection of the Services, and describe In reasonable detail In such notice the Authorized Purchaser's  basis for rejection  of the Services. Upon receipt of notice of non-acceptance, Contractor  shall, within a thirty (30) calendar day period, to the extent such modifications  or improvements are within the scope of the Deliverables  as stated in the applicable Statement of Work, modify or improve the Services at Contractor's sole expense to ensure  that the Services meet the acceptance  criteria, and notify the Authorized Purchaser in writing that it has completed such modifications or Improvements and re­ tender the Services to Authorized Purchaser. Authorized Purchaser shall thereafter review the modified or improved Services within 15 calendar days of receipt of the Contractor's delivery of the Services. Failure of the Services  to meet  the acceptance  criteria  after the second set of acceptance  tests shall constitute  a default  by Contractor. Upon  such default, Authorized  Purchaser may  either (i) notify Contractor  of such default or instruct Contractor to modify or improve the Services as set forth in this section 2.4.3, or (ii) notify Contractor of such default and in which case Contractor shall comply with section 2.4.

 

2.5.      REIMBURSEMENT.

 

If an Authorized  Purchaser  notifies Contractor that the Services  are rejected  or acceptance is revoked prior to Final Acceptance, Contractor shall refund any payments that have been made by Authorized  Purchaser  with regard  to the Services  within twenty (20) calendar days of receiving  notice of rejection or revocation of acceptance.

 

2.6.       REMEDIES  NOT EXCLUSIVE.

 

No provision  of this Article 2 precludes  Authorized  Purchaser from other remedies to which it may be entitled upon rejection or revocation of acceptance.

 

2.7.       WARRANTY PERIOD AND LONG-TERM SUPPORT AND MAINTENANCE.

 

For a period of one year after Final Acceptance, Contractor shall, at no additional charge to Authorized Purchaser State, furnish such materials and services as shall be necessary to correct any defects in the Services.   Notwithstanding the expiration of the Warranty Period, Contractor shall be obligated to cure defects discovered during the Warranty Period.

 

3.   CONTRACTOR'S  PERSONNEL.

 

3.1.         Contractor shall designate an Authorized Representative  and Program Manager for the Services. The Authorized  Representative  and  Program  Manager  shall  be  familiar  with  Authorized  Purchaser's  business operations   and  objectives  as  necessary  for  the  provtsron of  the  Services  and,  shall  be  responsible  for Contractor's  performance  of the Services in accordance with the warranties set forth in Article 8 of this Master Agreement. The Program Manager shall participate with Authorized Purchaser in periodic review sessions and shall provide at Authorized Purchaser's request with Service reports.

 

3.2.      Contractor's  Employees  and Subcontractors. Contractor shall not use subcontractors  to perform  the Services  unless  specifically  authorized  to do  so by  Authorized  Purchaser.  Contractor  represents  that  any employees assigned to perform the Services, and any authorized subcontractors performing the Services shall perform the Services in accordance with the warranties set forth in Article 8 of this Master Agreement.

 

4.   TERM; OPTION TO RENEW.

 

4.1.         This Master  Agreement  shall be effective on the Effective  Date, an'd shall continue in effect until the later of (i) June 30, 2012 (the "Expiration Date") or (ii) the termination or expiration of the last active Contract, unless terminated earlier in accordance with the terms of this Master Agreement.  The parties shall not execute any new Contracts after the Expiration Date.   However, this Master Agreement shall remain in full force and effect  for  all  Contracts  whose  expiration  dates  (including  extensions  and  renewals)  extend  beyond  the Expiration  Date.   Notwithstanding  the foregoing, the term for any separate License Agreement, Support and Maintenance Agreements attached hereto shall be as specified in those agreements.

 

4.2.      Subject  to section  5.8, DAS SPO shall have  the option, in its sole discretion,  to renew  this Master Agreement for additional periods of one, two, three or four years upon the same terms and conditions in effect for the expiring term, provided, however, that the total term of the Master Agreement will not be greater than six (6) years.   DAS SPO may exercise this option at the end of the initial term and any subsequent  renewal terms.

 

At least ninety (90) but no more than one hundred and twenty (120) days prior to the expiration of an existing term, Contractor shall notify DAS SPO in writing of the pending expiration•. DAS SPO shall notify Contractor in writing at least thirty (30) days prior to expiration of the existing term whether DAS SPO intends to renew or let this Master Agreement expire.   If DAS SPO fails to notify Contractor of Its intentions within this timeframe, the Master Agreement shall expire at the end of the existing term by operation of this section.  If Contractor fails to provide DAS SPO with written notice at least ninety (90) days prior to the pending  expiration, the Expiration Date, at DAS SPO's option, shall be deemed extended for the number of days necessary for DAS SPOto have a  full  ninety  (90)  days  of advance  notice  of  expiration.    During  such  extension,  all terms  of this  Master Agreement shall remain in full force and effect. Provided, however, that no renewal shall extend the expiration date beyond 10 years from the Effective Date.

 

4.3       Subject to the provisions  of the Master Agreement, Authorized Purchaser shall have the option, in its sole  discretion,  to  renew  a  Contract  for  additional  periods  upon  thirty  (30)  days  prior  written  notice  to Contractor, provided each such renewal period is no less than one year.

 

5.  COMPENSATION.

 

5.1.       Rates.

 

Authorized Purchaser shall pay Contractor subject to the rates set forth on Exhibit B.

 

5.2.     Payments.

 

5.2.1.  Payment for Services. Subject to the requirements  of Sections 5.3 and 5.5, Authorized  Purchaser shall pay Contractor for each Deliverable  delivered pursuant  to the Contract and accepted by Authorized Purchaser the applicable price for that Deliverable set forth in the Contract.

 

5.2.2.   Liabilily for Non-State Authorized Purchasers.  The State bears no liability for Services rendered by Contractor to parties who are not Authorized Purchasers or on Contracts entered into between Authorized Purchasers  that are not State Agencies, and the State expressly disclaims any such liability.  With regard to Authorized Purchasers that are not State Agencies, Contractor shall look solely to the respective party  for any rights and remedies Contractor may have at law or in equity arising out of the sale and purchase of Contractor's Services and the resulting contractual relationship, if any, with each such contracting party.

 

5.2.3.   DAS SPO reserves the right to add for the assessment and collection of VCAF.  The assessment of

VCAF is in addition to, and not a part of, the prices for Services set forth in this Contract.

 

5.3.      Expenses.

 

Except as may be authorized in a Statement of Work or Subscription Schedule, Authorized

Purchaser will not pay any expenses incurred by Contractor during the performance of the Services.

 

5.4.      Invoices. 

 

Authorized Purchaser shall not pay Contractor more than the Maximum Not-To Exceed fees for the Services as set forth in the Subscription Schedule or in the Contract for Professional Services.   Unless otherwise   agreed,  Authorized   Purchaser  shall  not  pay  Contractor  more  than  once  each   month  upon Contractor's submission of detailed invoices that set forth the Services accepted by Authorized Purchaser. Contractor  will  invoice  Authorized  Purchaser  in  advance  for  Microsoft  Exchange  licensing  services,  and Contractor  will invoice  Authorized  Purchaser  in arrears  for Enhanced Services and  any other Professional Services  or  other  Services  hereunder.      Additional  fees  and  credits  may  apply,  such  as  migration  or cuslomization Services, or out-of-pocket expenses, as may be set forth in a separate Contract for Professional Services or Statement  of Work.   Such invoices shall comply with the requirements of this Article 5 and shall describe the Deliverables completed and accepted by Authorized Purchaser for which Contractor seeks compensation and shall itemize and explain all expenses for which reimbursement is claimed. Contractor shall request payment only for Deliverables  accepted by Authorized Purchaser. Contractor shall submit invoices to Authorized  Purchaser's  Authorized Representative.  Authorized Purchaser will have the right to review each such invoice for compliance with the requirements of this Section 5.4 and any other relevant provisions of this Master Agreement. All payments to Contractor are subject to ORS 293.462.

 

5.5.     Termination Fees.  

 

Except for temnination of a Contract due to Contractor's breach under the terms of the Master Agreement,   in the event that a Contract with a term of two (2) years or more is terminated prior to the expiration of the Term, Authorized Purchaser shall pay Contractor, within ten (10) days after the date of such  termination,   (i)  all  accrued  and  unpaid  fees  for  Services  provided  through  the  effective  date  of termination, plus (il)  a cancellation fee equal to 50% of Authorized Purchaser's average monthly invoices for the six (6) months  prior  to the date of termination  multiplied  times the lesser  of (x) the number  of months remaining in the Term of this Contract or {y) twelve (12) months.   In the event that a Contract with a term of less  than two  (2) years  is terminated  prior to the expiration  of the Term, Authorized  Purchaser  shall  pay Contractor, within ton (10) days after the date of such termination, (i) all accrued and unpaid fees for Services provided through the effective date of termination, plus (ii) a cancellation fee equal to 50% of Authorized Purchaser's average monthly invoices for the three (3) months prior to the date of termination multiplied limes the lesser of (x) the number of months remaining in the Temn of the Contract or (y) twelve (12) months.  The parties agree that, if Services are cancelled prior to the completion of the Term, Contractor's damages shall be difficult or impossible  to ascertain .and therefore,  the amounts set forth in this Section  5.5 are intended  to establish liquidated damages in the event of cancellation and are not intended as a penalty.

 

5.6.      Limit on Payments.

 

No payment will be made for any Services performed before the Effective Date or after termination of this Master Agreement and specific Contract, as it may be amended from time to time, in accordance with its terms. Notwithstanding  the foregoing, Authorized Purchaser will pay to Contractor, within thirty (30)  calendar  days  after the dale  of termination,  all  accrued and  unpaid  fees for Services  provided through the effective date of temninalion; Contractor may assess late fees of 2/3 of a percent or the maximum amount allowed by law, if Authorized Purchaser has not paid amounts due forty-five (45) days after the date of termination. Authorized  Purchaser's payments are conditioned upon Authorized Purchaser receiving  funding, appropriations, limitations, allotments, or other expenditure authority sufficient to allow Authorized Purchaser, in the exercise  of its reasonable  administrative  discretion, to meet its payment  obligations. Contractor  may suspend Services to any Authorized Purchaser fifteen {15) calendar days after providing Authorized Purchaser written notice that it has failed to pay any undisputed invoice when due, and if such invoice remains  unpaid, Contractor may terminate  the specific Contract(s)  of the Authorized Purchaser(s)  in default.  Nothing  in this Master  Agreement  is  to be  construed  as  permitting  any  violation  of Article  XI,  Section  7 of  the  Oregon Constitution or any other law regulating liabilities or monetary obligations of the State of Oregon.

 

5.7.      Option to Pre-pay. 

 

Authorized Purchaser may elect to prepay the Fees ("Pre-Paid  Fees") for any Term of any Contract.  The amount  of Pre-Paid Fees for each Term (i) will be calculated based upon the average monthly  fees for Services  during the Initial Term or the Fees invoiced for Services for the last month  in the preceding  Term of the Contract.  as applicable; (ii) must be received for the upcoming  Renewal Term on or before the expiration of the then-current Term; (iii) will appear as a credit on the monthly invoice for Services against  which  current  fees will be billed; and (iv) will be returned on a prorated basis,  subject to Services rendered  prior  to  the  termination  date  and  any  applicable  termination  fees,  to  Authorized  Purchaser  if Authorized Purchaser terminates the Contract prior to the expiration of the then-current Term of the Contract.

 

5.8.      Price Renegotiation.  

 

Not fewer than 60 calendar days prior to the expiration of the Initial Term, and then upon each renewal thereafter, either Contractor or DAS SPO may request price renegotiation.  This price renegotiation  will be conducted  in good faith between  the parties  and may  result in a price change  being offered to DAS SPO for continuing Services offerings. If Contractor and DAS SPO reach an agreement during the 60  calendar  day  re-negotiation  period,  Contractor  will  adjust  its pricing  accordingly  for  the applicable Extension Term and will continue to provide the Services.

 

If the parties are unable to reach an agreement, the Master Agreement will terminate  subject to Authorized Purchaser's right to transition the Services.

 

6.  RIGHT TO USE; OWNERSHIP AND LICENSE IN SERVICES.

 

6.1.      Contractor  grants Authorized Purchaser a non-exclusive  right to access and to use the Subscription Services listed on any SaaS Subscription Schedules and the Professional Services listed on any Contract. Authorized Purchasor's use of the Subscription Services is subject to the following:

 

6.1.1 In order to access the Subscription Services, Authorized Purchaser will be required to click through certain on-line terms and conditions, provided however, that the provision of the Services under any Contract are subject to the terms and conditions of the Master Agreement and the Contract and provided further that such on-line terms and conditions have no force or effect as to the Services.

 

6.1.2  Contractor acts as a passive conduit, and is not responsible, for the online distribution and publication of the text, pictures, graphics, sound, video, other data and computer software sent or received by Authorized Purchaser or Users (or Contractor's servers) pursuant to this Master Agreement ("Content").  Moreover, as a passive conduiContractor merely transports information and does not access it other than on a random or infrequent basis as necessary to perform required Services under this Master Agreement, or as required by law. Content also includes, without limitation, the Domain Name(s), any trademarks associated with the Content, any items advertised for sale through the Services, or any hyperlinks thereto.  If it comes to Contractor's attention that any Content may, in Contractor's sole discretion, create liability for any third party or Contractor, Contractor may take any action it deems reasonable or appropriate to protect Contractor's rights and interests.  Authorized Purchaser is responsible  for the Content of its and its End Users' messages.  Authorized Purchasers and Users are not permitted to transmit messages on the Services that:) that (a) infringes on any third party's intellectual property or proprietary rights, or rights of publicity or privacy; (b) violates any law, statute, ordinance or regulation; (c) are defamatory, trade libelous, threatening, unlawfully harassing, indecent, abusive, obscene, or contain child pornography;  (d) contain viruses or other similar harmful or deleterious programming routines; (e) damage, disable, overburden or impair the Services or any other party's use of the Services; or (f) contain links to any sites that do or are.   In addition, Authorized Purchasers and their Users are not permitted to harvest email addresses through the Services or falsify header information in the messages they send.

 

6.1.3 Anti-Sparn.  Authorized Purchaser may not use the Subscription Services to send spam, either directly or indirectly, or that in any way violates Contractor's Anti-Spam Policy located at www.usa.net/leqal/anti-spam policy and attached hereto as Exhibit M. Contractor reserves the right to amend those terms from time to time. Contractor shall send Authorized Purchaser written notice of any such change. To the extent any such change results in a materially and significant adverse impact on the provision of or use the Services to Authorized Purchaser to Authorized Purchaser, Authorized Purchaser may terminate the Contract or affected Service without early termination liability.

6.1.4 Authorized Use.  Authorized Purchaser agrees not to resell the Services or knowingly allow any unauthorized use by a third party. Authorized Purchaser agrees to notify Contractor immediately if Authorized Purchaser becomes aware of any unauthorized use of the Services provided under the Contract. Contractor may terminate a Seat or the Services without notice if a User breaches the Contract.  In order to enforce the terms and conditions of a Contract, Authorized Purchaser shall manage any complaints that are sent to the following email addresses on Authorized Purchaser's Domain Name(s): abuse@domainname and postmaster@domainname. If Authorized Purchaser fails to so manage such email addresses, then Contractor will do so and invoice Authorized Purchaser, and Authorized Purchaser agrees to pay for such management services at Contractor's then-current hourly rates.

 

6.1.5 Privacy.  In addition to the obligations of Confidentiality described in Article 7 below, Contractor considers Authorized Purchaser's registration data, payment information and the content of all Authorized Purchaser's messages to be private.  Email messages that Authorized Purchaser or its End Users send through Contractor's Services will be received with End User's name and Internet Protocol (I P) address contained within the header of the message.  Contractor will not intentionally monitor or disclose any of End User's messages or registration data unless Contractor believes in good faith that Contractor is required to do so (i) to enforce the terms of the Contract; (II) by law; (iii)  to defend Contractor in any action; or (lv)   to protect Contractor's property. Authorized Purchaser shall respect the privacy and confidentiality of others. Contractor's privacy policy attached hereto as Exhibit N and as posted on-line at http://www.usa.net/leqal/privacy-policy/. Contractor reserves the right to amend those terms from time to time.  Contractor shall send Authorized Purchaser written notice of any such change. To the extent any such change results in a materially and significant adverse impact on the provision of or use the Services to Authorized Purchaser, Authorized Purchaser may terminate the Contract or the affected Service without early termination liability.

 

Authorized Purchaser acknowledges that Contractor may disclose statistics about its users' registration information in connection with Contractor's marketing activities, provided that Contractor will only disclose such information in the aggregate.

 

6.1.6 Microsoft Terms. Authorized Purchaser acknowledges  and agrees that (i) the Services include certain features and functionality that Contractor obtains from Microsoft under license and (ii) Microsoft is an intended third party beneficiary to the Microsoft Terms.  Authorized Purchaser agrees to  comply with and ensure that all of Authorized Purchaser's  Users accept the Microsoft Terms and Conditions attached  hereto  as Exhibit  I - 1 and incorporated  herein  by reference  ("Microsoft Terms"),  before Authorized Purchaser or the User is permitted to use the Services.   The Microsoft Terms include the terms  that Microsoft  requires  that Authorized Purchaser  and its Users agree to in order  to use the Services.   Authorized  Purchaser  and  its  Users shall  not  remove,  modify  or  obscure  any  Microsoft copyright, trademark or other proprietary rights notices that appear on or during the use of the Services. Authorized Purchaser and its Users disclaim, to the extent permitted by applicable law, all warranties by Microsoft  and  any  liability  by  Microsoft  for any damages,  whether  direct,  indirect  or consequential, arising from Authorized Purchaser's  or its Users' use of the Services.   If Contractor believes, in good faith,  at any  tirne during  the term of  any Contract,  that  Authorized  Purchaser  or its Users  are not complying  with the Microsoft Terms, then Authorized Purchaser  agrees that it will cooperate in good faith  with  Contractor  in  investigating  and  remedying  such  noncompliance. Upon  termination  of  the Contract,  Authorized  Purchaser  agrees  to use best  efforts to (i)  remove  all copies  of the Microsoft software  and/or  Redistribution  Software  (defined  in  Exhibit  I - 1)  from its  and  its Users'  hardware devices or otherwise render such software permanently unusable, and (ii) certify to Contractor in writing by one of Authorized Purchaser's  officers that it and its Users have removed  or destroyed all such software provided to Authorized Purchaser under this Attachment.  Without limiting any other remedies, Contractor  may terminate  a Seat or the Services  without notice  if Authorized  Purchaser  or a User breaches the Microsoft Terms.

 

6.1.7   Enhanced  Services  and  Supplemental  Terms.    The  Services may also Include certain optional features and functionalities ("Enhanced Services"), some of which Contractor obtains from third parties, for use in conjunction with the Services. In the event Authorized Purchaser purchases Enhanced Services, Authorized Purchaser may be subject to additional terms and conditions as to the third party found Exhibit 1-2 and at http://www.usa.net/legal/supplementaltandc.asp  a true and accurate copy of such terms is attached hereto as Exhibit I  -2, provided, however, that notwithstanding the provisions set forth in Exhibit 1-2:

 

o             Authorized Purchaser is not liable to Contractor for any damages resulting from a breach of the

Enhanced Services terms and conditions;

o             Contractor's liability to Authorized Purchaser or any User is set forth in this Master Agreement;

o             Authorized Purchaser shall not waive or release any claim or contest It may have against Contractor related to the validity, registrability or enforceability of any Contractor Intellectual Property

o             Any obligation of confidentiality Authortzed Purchaser might owe to any Third Party suppliers, including but not limited to Research In Motion, is subject to the provisions of the Oregon Public Records Laws, ORS 192.410 to 192.505.

 

Contractor reserves the right to amend those terms from time to time. Contractor shall send Authorized Purchaser written notice of any such change.  To the extent any such change is unacceptable to Authorized Purchaser, Authorized Purchaser may terminate such Enhanced Service without early termination liability.

 

62   Contractor  retains  ownership  of  all  Contractor  Intellectual  Property  that  Contractor  delivers  to Authorized Purchaser pursuant  to  the  Services performed. With  respect to  each  Subscription Service, Contractor grants Authorized Purchaser the licenses described in the applicable SaaS Subscription Schedule.

 

6.3.         Third Party Intellectual Property. Unless otherwise specified in the Contract that Authorized Purchaser, on its own, will acquire and obtain a license to Third Party Intellectual Property, Contractor shall grant to • Authorized Purchaser or obtain for Authorized Purchaser a license to Third Party Intellectual Property to the extent necessary for Authorized Purchaser to use Third Party Intellectual Property to use the Services.

 

6.4.     Authorized Purchaser Data  and Intellectual Property.   Authorized Purchaser owns all Authorized Purchaser Data and Intellectual Property provided to Contractor pursuant to this Master Agreement. Authorized Purchaser grants Contractor a non-exclusive, royalty-free, world-wide license to use, copy, display, distribute, transmit and prepare derivative works of Authorized Purchaser Intellectual Property and Authorized Purchaser data and background Information only to fulfill the purposes of this Master Agreement. Authorized Purchaser's license to Contractor is limited by the term of the Master Agreement and Contract and the confidentiality obligations of this Master Agreement.

 

6.5.     No Rights. Except as expressly set forth in this Master Agreement, nothing in this Master Agreement shall 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 Authorized Purchaser.  Except as expressly set forth in this Master Agreement, nothing in this Master agreement shall be construed as granting to or conferring upon Authorized Purchaser any right, title, or interest in any Contractor Intellectual Property that is now owned or subsequently owned by Contractor.

 

6.6.     Competing Services. Subject to the provisions of this Article 6, and Contractor's obligations with respect to Confidential Information, as defined in Article 7 nothing in this Master Agreement precludes or limits in any way the right of Contractor to: (i) provide the services similar to those contemplated in this Master Agreement, 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 The parties, including DAS SPO, Contractor and Authorized Purchasers, shall be free to utilize any concepts, processes, know-how, techniques, improvements or other methods it may develop during the  course of  performance under this  Master Agreement free of any  use restriction or payment obligation to the other.

 

7.   CONFIDENTIALITY  AND NON-DISCLOSURE.

 

7.1.     CONFIDENTIAL INFORMATION.

 

Contractor acknowledges that it and its employees or agents may, in the course of performing their responsibilities under this Master Agreement, be exposed to or acquire information that is confidential to Authorized Purchaser or Authorized Purchaser's clients. Any and all information of any form obtained by Contractor or its employees or agents in the performance of this Master Agreement are confidential information of Authorized Purchaser ("Confidential Information"). Contractor shall treat any reports or other documents or Items (including software) that result from the use of the Confidential Information by Contractor with respect to confidentiality in the same manner as the Confidential Information, Confidential lnfotmation does not to include information that (a) is or becomes (other than by disclosure by Contractor) publicly known; (b) is furnished by Authorized Purchaser to others without restrictions similar to those imposed by this Master Agreement; (c) is rightfully in Contractor's possession without the obligation of nondisclosure prior to the time of its disclosure under this Master Agreement; (d) is obtained from a source other than Authorized Purchaser without the obligation of confidentiality, (e) is disclosed with the written consent of Authorized Purchaser, or; (f) is independently developed by employees or agents of Contractor who can be shown to have had no access to the Confidential Information.

 

7.2.     NON-DISCLOSURE.

 

Contractor agrees to hold Confidential Information in strict confidence, using at least the same degree of care that Contractor uses in maintaining the confidentiality of its own confidential information, and not to copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information to third parties, or use Confidential Information for any purposes whatsoever other than the provision of Services to Authorized Purchaser hereunder, and to advise each of its employees and agents of their obligations to keep Confidential Information confidential. Contractor shall use commercially reasonable efforts to assist Authorized Purchaser in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the generality of the foregoing, Contractor shall advise DAS SPO and Authorized Purchaser 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 Master Agreement and Contractor will at its expense cooperate with DAS SPO and Authorized Purchaser in seeking injunctive or other equitable relief in the name of Authorized Purchaser or Contractor against any such person. Except as directed by Authorized Purchaser, Contractor will not at any time during or after the term of this Master Agreement disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this Master Agreement, and that upon tenmination of this Master Agreement or at Authorized Purchaser's request, Contractor will turn over to Authorized Purchaser all documents, papers, and other matter in Contractors possession that embody Confidential Information.

 

7.3.     IDENTITY THEFT.  

 

In the performance of the Master Agreement, Contractor may have possession or access to documents, records or items that contain "Personal Information" as that term is used in ORS 646A.602(11), including Social Security numbers.  Personal Information is a type of Confidential Information that is highly sensitive and subject to additional protection.  Therefore, prior to the receipt of, and during the period in which Contractor has possession of or access to, any Personallnforination,  Contractor shall have in place, a fonmal written infonmation security program that provides safeguards to protect Personal Information from loss, theft, and disclosure to unauthorized persons, as required by the Oregon Consumer Identity Theft Protection Act, ORS 646A.600-646A.628.

 

7.3.1.  Contractor shall not breach or permit breach of the security of any Personal Information that is contained in any document, record, compilation of information or other item to which Contractor receives access, possession, custody or control under this Master Agreement.  Contractor shall not disclose, or otherwise permit access of any nature, to any unauthorized person, of any such Personal Information. Contractor stJall not use, distribute or dispose of any Personal Information other than expressly permitted by DAS, the Authorized Purchaser, required by applicable law, or required by an order of a tribunal having competent jurisdiction.

 

7.3.2.  Contractor shall report to  the  Authorized Purchaser, as  promptly as  possible, any breach of security, use, disclosure, theft, loss, or other unauthorized access of any document, record, compilation of information or other item that contains Personal Information to which the Contractor receives access, possession, custody or control in the performance of this Master Agreement.

 

7.3.3. Contmctor shall ensure the compliance of its employees and agents with this section

 

7.4.     SECURITY POLICIES & NDAs.

 

7.4.1      Contractor at all times shall comply with Authorized Purchaser's security policies and procedures. Authorized Purchaser reserves the right to revise its security policies and procedures at any time. Authorized Purchaser shall deliver copies of all security policies and procedures to Contractor. Contractor shall upon Authorized Purchaser's request provide a written non disclosure agreement and obtain such from Contractor's employees or subcontractors performing Services under this Master Agreement.

 

7.4.2  Contractor, at its option, may require Authorized Purchaser to execute a separate Non-Disclosure

Agreement in a form agreed upon by DAS SPO and Contractor.

 

7.4.3      Any and all obligations of confidentiality imposed upon the State, DAS SPOor any Authorized Purchaser related to the Services hereunder are subject to the provisions of the Oregon Public Records Law DRS 192.410 through 192.505.

 

7.5.     Injunctive Relief.

 

Contractor acknowledges that breach• of this Article 7, including disclosure of any Confidential Information, might give rise to irreparable injury to Authorized Purchaser that might be inadequately compensable in damages. Accordingly, Authorized Purchaser 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 Authorized Purchaser and are reasonable in scope and content.

 

7.6.     Publicity.

 

Contractor agrees that news releases and other publicity relating to the subject of this Master Agreement will be made only with the prior written consent of Authorized Purchaser.

 

7.7.     Transitior1 Assistance. 

 

Upon expiration or termination of all or part of the Subscription Services or Professional Services being provided under this Master Agreement or any Contract and upon Authorized Purchaser's request, at Authorized Purchaser's expense and for only such time as is reasonably necessary to effect transition, Contractor shall provide the following termination assistance:  Contractor shall continue to provide the Subscription Services and Professional Services that were provided by Contractor prior to the expiration or termination and any new services requested by Authorized Purchaser that may be required to facilitate the transfer of the affected Subscription Services and Professional Services to Authorized Purchaser, a Third-Party service provider or other Authorized Purchaser designee, as applicable. Promptly upon expiration or termination of this Master Agreement or a Contract, Contractor shall, upon   request provide Authorized Purchaser with a final export of Authorized Purchaser Data pursuant to the process outlined in Exhibit L. Transition services will be available for no longer than twenty (20) days after termination or expiration.

 

8.  CONTRACTOR'S REPRESENTATIONS  AND WARRANTIES.

 

8.1.    GENERAL REPRESENTATIONS AND WARRANTIES.

 

 In addition to  all other Contractor representations and warranties In this Master Agreement, Contractor also represents and warrants to Authorized Purchaser that:

 

8.1.1.   Contractor has the power and authority to enter into and perform this Master Agreement;

 

8.1.2.  This Master Agreement, when executed and delivered, will be a valid and binding obligation of Contractor enforceable in accordance with its terms;

 

8.1.3.  Contractor will, at all times during the term of this Master Agreement, be qualified to do business in the State of Oregon, professionally competent and duly licensed to perform the Services;

 

8.1.4.  Contractor is not in violation of, charged with nor, to the best of Contractor's knowledge, under any investigation with respect to violation of, any provision of any federal, state or local law, ordinance or regulation or any other requirement or order of any governmental or regulatory body or court or arbitrator applicable to provision of the Services, and Contractor's provision of the Services shall not violate any such law, ordinance, regulation or order.

 

8.1.5.  Contractor's performance under this Master Agreement creates no potential or actual conflict of interest, as defined by ORS 244, for either Contractor or any Contractor personnel that will perform the Services under this Master Agreement.

 

8.1.6.  The Contractor Data and Tax Certification in the form attached hereto as Exhibit E  and the Certification Statement For Independent Contractor in the form attached hereto as Exhibit F, if applicable, are true and accurate as of the Effective Date, and Contractor will notify Authorized Purchaser in writing if any such data or certifications change during the term of this Master Agreement such that the attached Exhibits E or F, if applicable, are no longer true and accurate

 

8.2.       CONTRACTOR'S PERFORMANCE WARRANTIES.

 

Contractor represents and warrants to Authorized Purchaser that:

 

8.2.1.  Contractor  las  the skill  and knowledge possessed by well-informed members of its  trade or profession and Contractor will apply that skill and knowledge with care and diligence so Contractor and Contractor's employees and any authorized subcontractors perform the Services described in this Master Agreement in accordance with the highest standards prevalent in the industry or business most closely involved in providing the Services that Contractor is providing to Authorized Purchaser pursuant to this Master Agreement.

 

8.2.2.  Through the expiration of the Warranty Period, all Services performed by Contractor to Authorized Purchaser shall conform to the  acceptance criteria, if  any, set forth in the applicable SaaS Service Application, including the Contract and any Documentation provided by Contractor and shall be free from error or defect that materially impairs their use.

 

8.2.3.  Except as otherwise permitted or provided in this Master Agreement, all Services supplied by Contractor to Authorized Purchaser shall be provided to Authorized Purchaser free and clear of any and all restrictions on or conditions all liens, claims, mortgages, security interests, liabilities, and encumbrances of any kind.

 

8.2.4. When used as authorized by this Master Agreement, no Service delivered by Contractor to Authorized Purchaser infringes, nor will Authorized Purchaser's use, duplication, or  transfer of such Services infringe, any copyright, patent, trade secret, or other proprietary right of any third party.

 

8.2.5. Except as otherwise set forth in this Master Agreement, any subcontractors performing work for Contractor under this Master Agreement have assigned all of their rights in the Services to Contractor or Authorized Purchaser and no third party has any right, title or interest in Services supplied to Authorized Purchaser under this Master Agreement.

 

8.2.6. Contractor represents and warrants that it will maintain, operate and enforce, prior to the receipt of, and during the period in which Contractor has possession of or access to, any Personal Information, an active and effective information security program to preserve the security and confidentiality of all Personal Information that is contained in any document, record, compilation of information or other item to which Contractor receives access, possession, custody or control.

 

 

8.3.     WARRANTIES EXCLUSIVE; DISCLAIMERS.

 

THE WARRANTIES SET FORTH IN THIS MASTER AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, AND CONTRACTOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF  MERCHANTABILITY, OR  FITNESS FOR A  PARTICULAR PURPOSE. CONTRACTOR DOES NOT WARRANT THAT THE AUTHORIZED PURCHASER'S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.

 

9.   LIMITATION OF LIABILITY.

 

9.1.     EXCEPT FOR LIABILITY ARISING OUT OF OR RELATED TO (i) SECTION 10.1, (ii) SECTION 10.2, (iii) ARTICLE 7 OR (iv) CLAIMS FOR PERSONAL INJURY, INCLUDING DEATH, OR DAMAGE TO REAL PROPERTY OR TANGIBLE PERSONAL PROPERTY ARISING FROM THE NEGLIGENCE, RECKLESS CONDUCT OR INTENTIONAL ACTS OF CONTRACTOR, ITS OFFICERS, EMPLOYEES OR AGENTS, CONTRACTOR'S LIABILITY FOR DAMAGES TO THE STATE FOR ANY CAUSE WHATSOEVER SHALL BE LIMITED TO THE FEES PAID BY AUTHORIZED PURCHASER TO CONTRACTOR IN THE TWENTY-FOUR (24) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY.

 

9.2.    IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST DATA OR OTHER CONSEQUENTIAL OR INCIDENTAL DAMAGES.

 

10.      INDEMNITIES.

 

10.1.   GENERAL INDEMNITY.

 

Contractor shall defend, save, hold hannless, and indemnify the State of Oregon and Authorized Purchaser and their agencies, subdivisions, officers, directors, employees and agents from and against all third party claims, suits, actions, losses, damages, liabilities, statutory penalties, costs and expenses for personal injury, including death, damage to real property and damage to tangible personal property resulting from, arising out of, or relating to the intentional, reckless or negligent acts or omissions of Contractor or its officers, employees, subcontractors, or agents under this Master Agreement; provided that Contractor shall have no obligation to indemnify the State of Oregon or Authorized Purchaser from and against any claims, suits, actions, losses, damages, liabil ies, costs and expenses to the extent attributable to the acts or omissions of the State of Oregon or Authorized Purchaser, and their officers, employees or agents.

 

10.2.   IP INDEMNITY.

 

In addition to and without limiting the generality of Section 10.1, Contractor expressly agrees to defend, savCJ,  hold harmless, and indemnify the State of Oregon and Authorized Purchasers and their agencies, subdivisions, officers, directors, employees and agents from any and all third party claims, suits, actions, losses, damages, liabilities, statutory penalties, costs and expenses of any nature whatsoever resulting from, arising out of or relating to any claims that the Services or Product or use thereof Infringe any patent, copyright, trade secret, trademark, trade dress, mask work, utility design, or other proprietary right (collectively, "Intellectual Property Rights") of any third party. If Contractor believes at any time that the Services infringe a  third party's  Intellectual Property Rights, Contractor may upon receipt of  Authorized Purchaser's prior written consent, which Authorized Purchaser shall not unreasonably withhold, (i) replace an infringing item with a non-infringing item that meets or exceeds the performance and functionality of the replaced item; or (ii) obtain for Authorized Purchaser the right to continue to use the infringing item; (iii) modify the infringing item to be non-Infringing, provided that, following any replacement or modification made pursuant to the foregoing, the Services continue to function in conformance with the applicable Acceptance Criteria set forth in this Master Agreement; Contractor's failure or inability to accomplish any of the foregoing shall be deemed a material breach of this Master Agreement, and Authorized Purchaser may pursue any rights and remedies available to it under this Master Agreement, including termination. Contractor shall not be liable under this Article 10.2 for any claim for infringement based solely on the following:

 

10.2.1. Authorized Purchaser's modification of  the  Services  other  than  as  set  forth  in  this  Master Agreement, the Product or Services' or System's specifications, or without the written permission of Contractor;

 

10.2.2. Use of the Services in a manner other than as contemplated by  this Master Agreement, their specifications, or as authorized in writing by Contractor;

 

10.2.3. Use of the Services in combination, operation, or use of with other products in a manner that does not comply with their specifications, not specified by Contractor or of which Contractor has not approved in writing.

 

10.3.  CONTROL OF DEFENSE AND SETTLEMENT.

 

Contractor's obligation to indemnify Authorized Purchaser as set forth in Sections 10.1 and 10.2 is conditioned on Authorized Purchaser providing to Contractor prompt notification of any claim or potential claim of which Authorized Purchaser becomes aware that may be the subject of those Sections. Contractor shall have control of the defense and settlement of any claim that is subject to Section 10.1 or Section 10.2; however, neither Contractor nor any attorney engaged by Contractor shall defend the claim in the name of the State of Oregon or any Authorized Purchaser of the State of Oregon, nor purport to act as legal-representative of the State of Oregon or any of its agencies, without the approval of the Attorney General, nor shall Contractor settle any claim on behalf of the State of Oregon without the approval of the Attorney General. The State of Oregon may, at its election and expense, assume its own defense and settlement in the event that the State of Oregon determines that Contractor Is prohibited from defending the State of Oregon, is not adequately defending the Slate of Oregon's interests, or  that an important governmental principle is at issue and the Stale of Oregon desires to assume its own defense.

 

10.4.   DAMAGES TO STATE PROPERTY AND EMPLOYEES.

 

Contractor shall be liable for all claims, suits, actions, losses, damages, liabilities, costs and expenses for personal injury, including death, damage to real property and damage to tangible personal property of the State of Oregon or any of its employees resulting from, arising out of, or relating to the intentional, reckless or negligent acts or omissions of Contractor or its officers, employees, subcontractors, or agents under this Master Agreement

 

10.5.   INSURANCE.

 

Contractor shall provide insurance as required by Exhibit D.

 

11.       EVENTS OF DEFAULT.

 

11.1.    DEFAULT BY CONTRACTOR.

 

Contractor shall be in default under this Master Agreement if:

 

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

 

11.1.2. Contractor no longer holds a license or certificate that is required for Contractor to perform the Services and Contractor has not obtained such license or certificate within thirty (30) business days after delivery of Authorized Purchaser's notice or such longer period as Authorized Purchaser may specify in such notice; or

 

11.1.3. Contractor commits any  material breach  or  default of  any  covenant, warranty, obligation  or certification under this Master Agreement, fails to perform the Services in conformance with the specifications and warranties provided herein and such breach or default is not cured within 30 business days after delivery of Authorized Purchaser's notice or such longer period as Authorized Purchaser may specify in such notice.

 

11.2.    DEFAULT BY AUTHORIZED PURCHASER.

 

Authorized Purchaser shall be in default under this Master Agreement if:

 

11.2.1. Authorized Purchaser fails to pay Contractor any amount pursuant to the terms of this Master Agreement, and Authorized Purchaser fails to cure such failure within thirty (30) business days after delivery of Contractor's notice or such longer period as Contractor may specify in such notice; or

 

11.2.2. Authorized Purchaser commits any material breach or  default of  any  covenant, warranty,  or obligation under this Master Agreement, falls to perform its commitments hereunder within the  time specified or any extension thereof, and Authorized Purchaser falls to cure such failure within thirty (30) business days after delivery of Contractor's notice or such longer period as Contractor may specify in such notice.

 

12.      REMEDIES FOR DEFAULT.

 

12.1.   DAS SPO's and Authorized Purchaser's Remedies. In the event Contractor is in default under Section 11.1, Authorized Purchaser may, at its option, pursue any or all of the remedies available to it under this Master Agreement and at law or In equity, which include, without limitation:

 

12.1.1. termination of this Master Agreement by DAS SPO under Section 13.1 and tenmination of a Contract by Authorized Purchaser under Section 13.2;

 

12.1.2. withholding all monies due for Services that Contractor is obligated but has failed to perform within 30 days after Authorized Purchaser has notified Contractor of the nature of Contractor's default;

 

12.1.3. credits or other remedies for failure to meet service levels;

 

12.1.4. with respect to Services for which Authorized Purchaser has paid before Acceptance, returning all moneys previously paid for such Services;

 

12.1.5. initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief; and

 

12.1.6. exercise of its right of setoff.

 

12.2.   REMEDIES CUMULATIVE. 

 

These Authorized Purchaser remedies are cumulative to the extent the remedies are not inconsistent, and Authorized Purchaser may pursue any remedy or remedies singly, collecUvely, successively or in any order whatsoever. If It is determined for any reason that Contractor was not in default under Section 11.1, the rights and obligations of the parties shall be the same as if this Master Agreement was terminated pursuant to Section 13.1.

 

12.3.   CONTRACTOR'S REMEDIES.

 

 In the event DAS SPO tenminates this Master Agreement or Authorized Purchaser terminates a Contract, as set forth in Section 13.1, or in the event Authorized Purchaser is in default under Section '11.2 and whether or not Contractor elects to exercise its right to terminate the Master Agreement or a  Contract under Section 13.3., Contractor's sole monetary remedy shall be a claim for the unpaid invoices plus  any  applicable  liquidated damages established in  the Contract; the percentage  of Services completed on each Deliverable up to the not to exceed amount for the Deliverable set forth in the Contract, authorized expenses incurred,   less previous amounts paid and any claims which Authorized Purchaser has  against Contractor.   If previous amounts paid to  Contractor exceed the  amount due  to Contractor under this Section 12.3, Contractor shall pay any excess to Authorized Purchaser upon written demand.                                                      •

 

13.      TERMINATION; SUSPENSION.

 

13.1.   DAS SPO'S RIGHT TO TERMINATE. DAS SPO may, at its sole discretion, terminate this Master Agreement, as follows:

 

13.1.1. DAS SPO may terminate this Master Agreement for its convenience upon thirty (30) calendar days' prior written notice to Contractor.

 

13.1.2. DAS SPO may terminate this Master Agreement if the State fails to receive funding, appropriations, limitations or other expenditure authority at levels sufficient to pay for Contractor's services;

 

13.1.3.DAS SPO may terminate this Master Agreement if Federal or state laws, regulations, or guidelines are modified or interpreted in such a  way that the  f?erformance  of  the Services under this  Master Agreement is prohibited or if DAS SPO is prohibited from paying for such Services from the planned funding source;

 

13.2.    AUTHORIZED  PURCASER'S  RIGHT TO  TERMINATE.

 

Authorized  Purchaser may,  at  its  sole discreUon, terminate a Contract, as follows:

 

13.2.1. Authorized Purchaser may terminate a Contract for its convenience upon thirty (30) days' prior written notice to Contractor.

 

13.2.2. Authorized Purchaser may terminate a Contract if the Authorized Purchaser fails to receive funding, appropriations, limitations or other expenditure authority at levels sufficient to pay for Contractor's services;

 

13.2.3. Authorized Purchaser may terminate a Contract if Federal or state laws, regulations, or guidelines are modified or interpreted in such a way that the performance of the Services under this Master Agreement is prohibited or if DAS SPO is prohibited from paying for such Services from the planned funding source;

 

13.3.   DAS SPO AND AUTHORIZED PURCHASER'S RIGHT TO TERMINATE FOR CAUSE. In addition to any other rights and remedies DAS may have under this Master Agreement, DAS SPO may terminate this Master Agreement, in whole or In part, and Authorized Purchaser may terminate a Contract, in whole or in part, immediately upon Contractor's default under Section 11.1. In addition to any other rights and remedies that Authorized Purchaser may have under a Contract, Authorized Purchaser may terminate a Contract, in whole or in part, immediately upon Contractor's default under Section 11.1.

 

13.4.   CONTRACTOR'S  RIGHT  TO  TERMINATE FOR  CAUSE.

 

Contractor may  terminate this  Master Agreement upon Authorized Purchaser's default under Section 11.2.

 

13.5.   RETURN OF PROPERTY.

 

Upon termination of this Master Agreement or a specific Contract for any reason whatsoever, •except as required to fulfill any applicable legal obligation, each party shall promptly deliver to the other party all of the other party's property (including without limitation the other party's Confidential information).

 

13.6.   AUTHORIZED PURCHASER'S RIGHT TO SUSPEND THE SERVICES

 

13.6.1. Authorized Purchaser may suspend portions or all of the Services due to the following causes:

 

(a) Contractor's default under section 11.1;

 

(b) Any reason considered to be in the public interest.

 

(c)  For non-appropriation as set forth in section 13.2.2 and 17.6

 

13.6.2. Authorized Purchaser shall notify Contractor in  writing of the  effective date and time of  the suspension and shall notify Contractor in writing to resume work.

 

13.6.3. Contractor' Responsibility During Suspension:

 

13.6.3.1.   If the suspension occurs due to the reason set forth in Section 13.6.1(a), then during the period of the suspension, Contractor is responsible to continue to provide any unexpired Warranty coverage and provide Maintenance and Support to the extent such Maintenance and Support Services have been paid in advance.

 

13.6.3.2.   If the suspension occurs due to the reasons set forth in Sectiol'IS 13.6.1(b) or (c), Contractor shall provide Warranty coverage for a period of ninety (90) calendar days following the effective date of Suspension for any Deliverables accepted prior to the effective date of suspension. Notwithstanding, the foregoing Contractor shall not be obligated to provide Warranty Period maintenance and support

 

during the period of suspension except to the extent such Warranty Period maintenance and support has been prepaid..

 

13.6.3.3.   When the Services are recommenced after the suspension Contractor shall complete the Services in every respect as though its prosecution had been continuous and without suspension. Due dates for Services shall be extended by amount of the period of suspension and a reasonable period for Contractor's remobilization not to exceed ninety (90) calendar days.

 

13. 7.  Compensation ForSuspension

 

13.7.1.      Depending on the reason for suspension of the Services, the Contractor or the Authorized

Purchaser rnay be due compensation by the other party.

 

(a) If the suspension was required due to 13.6.1. (a), the Authorized Purchaser may assess the Contractor actual costs of the suspension in terms of administration remedial work by the Authorized Purchaser or another contractor to correct the problem associated with the suspension.

 

(b)  If the suspension was pursuant to section 13.6. 1(b) or (c), neither party owes the other for the consequences of the suspension.  Contractor shall be entitled to compensation for Services performed prior to the suspension as if the Master Agreement were terminated for convenience.

 

13.8.   Duration of Suspension

 

13.8.1. Contractor's Default.   No single instance of suspension of performance for Contractor's default under 13.6.1{a) may exceed 180 days.

 

13.8.2.Public Interest and Non-Appropriation. No single instance of suspension of performance for the Public Interest under 13.6.1(b) or Non-Appropriation may extend beyond thirty (30) calendar days after which either party may terminate this Agreement upon fifteen (15) days notice.

 

14.      INDEPENDENT CONTRACTOR; TAXES AND WITHHOLDING.

 

14.1.   INDEPENDENT CONTRACTOR.

 

Contractor shall perform all Services as an independent contractor. Although DAS SPO and   Authorized Purchaser reserves the right to evaluate the quality of the completed performance, neither DAS SPO nor Authorized Purchaser can and will control the means or manner of Contractor's performance. Contractor is responsible for determining the appropriate means and manner of performing the Services.

 

14.2.   DECLARATION AND CERTIFICATION.

 

Contractor by execution of this Master Agreement declares and certifies that (i) its performance of the Services creates no potential or actual conflict of interest as defined by ORS Chapter 244, for Contractor or any Contractor personnel who will perform Services under this Master Agreement, and (ii) in the event that Contractor or its personnel are either employed by or performing services for the federal government, that no rules or regulations of the agency for which Contractor or Its personnel work or are employed prohibit Contractor or its personnel from providing the Services under this Master Agreement. Contractor also declares and certifies by execution of this Master Agreement that it is not an "officer," "employee," or "agent" of DAS SPO or Authorized Purchaser, as those terms are used in ORS 30.265.

 

14.3.   RESPONSIBLE FOR TAXES.

 

Contractor shall be responsible tor all federal and state taxes applicable to compensation and other payments paid to Contractor under this Master Agreement and, Ul')less Contractor is subject to backup withholding, Authorized Purchaser 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 Master Agreement, except as a self-employed individual.

 

15.      COMPLIANCE APPLICABLE LAW.

 

Contractor shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to the Master Agreement.  Without limiting the generality of the foregoing, Contractor expressly agrees to comply with the following laws, regulations and executive orders to the extent they are applicable to the Master Agreement:  (i) Titles VI and VII of the Civil Rights Act of 1964, as amended; (ii) Sections 503 and 504 of the Rehabilitation Act of 1973, as amended; (iii) the Americans with Disabilities Act of 1990, as amended; (iv) Executive Order 11246, as amended; (v) the Health Insurance Portability and Accountability Act of 1996; (vi) the Age Discrimination in Employment Act of 1967, as amended, and the Age Discrimination Act of 1975, as amended; (vii) the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended; (viii) ORS Chapter 659, as amended; (ix) all regulations and administrative rules established pursuant to the foregoing laws; and (x) all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations. These laws, regulations and executive orders are Incorporated by reference herein to the extent that they are applicable to the Master Agreement and required by law to be so incorporated. Authorized Purchaser's performance under a Contract is conditioned upon Contractor's compliance with the obligation of contractors under ORS 279B.220, 279B.230 and 279B.235, which are incorporated herein by reference.

 

16.      DISPUTE RESOLUTION.

 

16.1.   LITIGATION - STATE  AGENCIES.

 

Any claim, action, suit,  or  proceeding (collectively, "Claim") between Authorized Purchaser (or any other Authorized Purchaser or department of the State of Oregon) and Contractor that arises from or relates to this Master Agreement shall be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon; provided,. however, if a Claim must be brought in a federal forum, then it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. CONTRACTOR BY EXECUTION OF THIS MASTER AGREEMENT HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF THE COURTS REFERENCED IN THIS SECTION 16.1. In no event shall this section 16.1 be construed as a waiver by the State of Oregon of any form of defense or immunity, whether sovereign immunity, governmental immunity, immunity based on tho eleventh amendment to the Constitution of the United States or otherwise, from any claim or from tile jurisdiction of any court.

 

16.2.   LITIGATION- NON-STATE AUTHORIZED PURCHASERS.

 

Any Claim between a non-State agency Authorized Purchaser and Contractor that arises from or relates to this Master Agreement shall be brought and conducted solely and exclusively within the State Court for the County of the residence of the Authorized Purchaser; provided, however, If a Claim must be brought in a federal forum, then it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. CONTRACTOR BY EXECUTION OF THIS  MASTER AGREEMENT HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF THE COURTS REFERENCED IN THIS SECTION 16.1. In no event shall this section 16.1 be construed as a waiver by the State of Oregon or any non-State Authorized Purchaser of any form of defense or immunity, whether sovereign immunity, governmental immunity, immunity based on the eleventh amendment to  the Constitution of the United States or otherwise, from any claim or from the jurisdiction of any court.

 

16.3.   GOVERNING LAW.

 

This Master Agreement shall be governed by and construed in accordance with the laws of the State of Oregon without regard to principles of conflict of laws.

 

17.      MISCELLANEOUS PROVISIONS.

 

17.1.   ORDER OF PRECEDENCE.

 

This Master Agreement consists of the following documents that are listed in descending order of precedence:

 (a) the terms and conditions of this Master Agreement, less its Exhibits;

(b) Exhibit 1-1  (Microsoft Terms and Conditions) and Exhibit 1-2  (Enhanced Services Terms and Conditions);

(c) Exhibit A (Menu of Services/Scope of Work) and Exhibit L (Transition of Services);

(d) Exhibit B (Compensation);

(e) Exhibit C-1 (SaaS Subscription Schedule) or Exhibit C-2 (Contract for Professional Services);

(f)  Exhibit J (Service Level Agreement), Exhibit M (Anti-Spam Polley), and Exhibit N (Privacy Policy); (g) Exhibits K (Disaster Recovery);

(h) Exhibits D (Insurance);

(i)   Exhibit  E  (Contractor •Data  and  Tax   Certification)  and  Exhibit  F  (Independent  Contractor Certification); and

U) Exhibit G (Contractor Personnel) and Exhibit H (DAS SPO/Authorized Purchaser Personnel).

The aforementioned Exhibits are by this reference incorporated in the Master Agreement.

In the event of a conftict between the terms of two or more Statements of Work, the terms of the most recent Contract for Professional Services prevail.  In the event of a conflict between the terms of two or more SaaS Subscription Schedules, the terms of the most recent SaaS Subscription Schedule prevail.

Except to the extent incorporated in or otherwise made a part of this Master Agreement, any on-line terms and conditions applicable to the Services or Related Products are of no force or effect.

 

17.2    RECYCLING.

 

Contractor shall, to the maximum extent economically feasible in the performance of the Master Agreement, use recycled paper (as defined in ORS 279A.010 (1) (gg)), recycled PETE products (as defined in ORS 279A.010 (1) (hh)), and other recycled plastic resin products and recycled products (as "recycled product" is defined in ORS 279A.010(1)(ii).

 

17.3    SUBCONTRACTS AND ASSIGNMENT.

 

Contractor shall not enter into any subcontracts for any of the Services required by this Master Agreement or assign or transfer any of its interest in this Master Agreement without Authorized Purchaser's prior written consent. Any proposed use of a subcontractor which is located outside the United States or use of subcontract labor or facilities located outside the United States must be called to the specific attention of Authorized Purchaser. Authorized Purchaser's consent to any subcontract shall not relieve Contractor of any of its duties or obligations under this Master Agreement.

 

17.4    SUCCESSORS AND ASSIGNS.

 

The provisions of this Master Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns, if any.

 

17.5    NO THIRD-PARTY BENEFICIARIES.

 

DAS SPO, Authorized Purchaser and Contractor are the only parties to this Master Agreement and are the only parties entitled to enforce its terms. Nothing in this Master Agreement gives, is intended to give, or shall be construed to give or provide any benefit or right, whether directly, indirectly, or otherwise, to third persons unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Master Agreement.  Microsoft Corporation Is an intended beneficiary of this Master Agreement only to the extent of and with respect to its products. Research in Motion Limited is an intended beneficiary of this Master Agreement only to the extent of and with respect to its products.

 

17.6    FUNDS AVAILABLE AND AUTHORIZED.

 

Contractor shall not be compensated for Services performed under a Contract entered into under this Master Agreement by any other entity or department of the State of Oregon other than the Authorized Purchaser under the Contract.    Authorized Purchaser believes it has sufficient funds currently available and authorized for expenditure to finance the costs of this Master Agreement within Authorized Purchaser's biennial appropriation or limitation. 'Contractor understands and agrees that  Authorized Purchaser's payment  of amounts under this Master Agreement is  contingent on Authorized Purchaser receiving appropriations, limitations, or other expenditure authority sufficient to allow Authorized Purchaser, in the exercise of its reasonable administrative discretion, to continue to make payments under this Master Agreement.

 

17.7.    RECORDS MAINTENANCE; ACCESS.

 

Contractor shall maintain all financial records and other records relating to its performance under this Master Agreement in accordance with generally accepted accounting principles and in such a manner as to clearly document Contractor's performance. Contractor acknowledges and agrees that Authorized Purchaser, the Oregon Secretary of State and the federal government and their duly authorized representatives shall have reasonable access, at their own cost  and expense and only following reasonable notice to Contractor, to such records, in paper or electronic form, to perform examinations and audits and make excerpts and transcripts. Contractor shall retain and keep accessible all such records for a minimum of six (6) years, or such longer period as may be required by applicable law, following termination of this Master Agreement, or until the conclusion of any audit, controversy, or litigation arising out of or related to this Master Agreement, whichever date is later.

 

17.8.    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 Master Agreement. Contractor shall demonstrate its legal capacity to perform the Services under this Master Agreement in the State of Oregon before entering into this Master Agreement.

 

17.9.   SURVIVAL.

 

All rights and obligations shall cease upon termination or expiration of this Master Agreement, eXC

 

17.10. TIME IS OF THE ESSENCE.

 

Contractor agrees that time Is of the essence in its performance under this Master Agreement.

 

17.11.  FORCE MAJEURE.

 

Neither Authorized Purchaser nor Contractor shall beliable to the other for any failure or delay of performance of any obligations hereunder when such failure or delay shall have been wholly or principally caused by acts or events beyond its reasonable control, Including without limitation acts of God, acts of civil or military authority, fires, floods, earthquakes or other natural disasters, war, riots or strikes.

Contractor shall, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon lhe cessation of the cause, diligently pursue performance of its obligations under this Master Agreement.

 

17.12. NOTICES.

 

Except as otherwise expressly provided in this Master Agreement. any communications between the parties hereto or notices to be given hereunder shall be given in writing by personal delivery of, facsimile transmission of. or mailing the same, postage prepaid, to Contractor at the address or number set forth on Exhibit G, and to Authorized Purchaser at the address or number set forth on Exhibit H, or to such other addresses or numbers as either party may hereafter indicate pursuant to this Section 17.12   Any communication or notice so addressed and mailed shall be deemed to be given five (5) calendar days after mailing. Any communication or notice delivered by facsimile shall be deemed to be given when the transmitting machine generates receipt of the transmission. To be effective against Authorized Purchaser, such facsimile transmission must be confirmed by telephone notice to the Authorized Purchaser Authorized Representative. Any communication or notice by personal delivery shall be deemed to be given when actually received by the appropriate Authorized Representative.

 

17.13 SEVERABILITY.

 

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

 

17.14 COUNTERPARTS.

 

This Master Agreement may be executed in several counterparts, all of which when taken together shall constitute one contract binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Each copy of this Master Agreement so executed shall constitute an originaI.

 

17.15. AMENDMENTS.

 

17.15.1.    Generally. This Master Agreement may be amended, modified, or supplemented only by a written amendment signed by DAS SPO and Contractor that has been approved by DOJ, if required by applicable law. Any amendment that provides for additional Services may only provide for Services directly

 

related to the scope of Services described in the Master Agreement, and no amendment shall be effective until all requisite signatures and approvals are obtained.

 

17.15.2    Anticipated Amendments.   The parties have determined that during the term of the Master Agreement or a Contract, the parties may need to modify selected terms, conditions, price(s) and types of Services uncler circumstances related to the following illustrative, although not exhaustive, categories of anticipated amendments:

 

17.15.2.1. Amendments required as a result of necessary changes in the State's business process that may restructure a State;

 

17.15.2.2. Amendments to the Master Agreement or Contract to add Services within the scope of the

Master Agreement;

 

17.15.2.3. Upon request from DAS SPO, amendments to add a Vendor Collected Administrative Fee (as  referenced in  Section 5.2.2) and Contractor responsibilities regarding assessment, collection, reporting, and remittance of the VCAF;

 

17.15.2.4. Amendments to delete Services from the Master Agreement or Contract;

 

17.15.2.5. Amendments to extend the term of the term of this Master Agreement or a Contract; and

 

17.15.2.6. Amendments to change pricing.

 

17.15.3. Change Control Procedures.

 

17.15.3.1. Written Change Requests. Either Authorized Purchaser or Contractor may request a change to a Contract, including all Exhibits hereto, by submitting a written change request describing the change requested. Authorized Purchaser's and Contractors' Authorized Representatives will review the written change request and either mutually approve it for further analysis or reject it.

 

17.15.3.2. Analysis of Change Requests; Change Orders. The party to whom the written change request has been submitted, if it has not been rejected pursuant to Section 17.15.3.1, shall analyze such change request to determine the effect that the implementation of the change will have on the Contract. If Contractor requests to make changes in its design or implementation of the Services to meet the requirements of the Contract, such changes will be made at no cost to Authorized Purchaser, unless such changes are due to the failure of Authorized Purchaser or its agents to perform its or their responsibilities in a timely manner. If any change is approved, the party that submitted the request for the change shall prepare a written change order, detailing all modifications to the scope, price, Delivery Schedule or other terms (the "Change Order"). A Change Order at a minimum shall contain the following information:

 

17.15.3.2.1. The date of issuance of the Change Order;

 

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

 

17.15.3.2.3. The particular specification or matter set forth in the applicable Contract which will be altered and the precise scope of that alteration;

 

17.15.3.2.4. The cost of the Services to be performed pursuant to the Change Order; and

 

17.15.3.2.5. The cumulative cost of all Change Orders previously issued.

 

17.15.4.   A Change Order shall alter only that portion of the Contract to which tt expressly relates and shall not otherwise affect the terms and conditions of a Contract or this Master Agreement. Both parties must sign the Change Order to authorize the Services described therein and incorporate the changes into the Contract.  No  Services  shall be performed  pursuant  to the Change Order and no payment  shall be made on account of the Change Order until the Change Order is fully executed and approved as set forth in Section 17.15.

 

17.15.5.     Payments.  Subject  to  the  foregoing  Sections  of  this 17  and  performance  of. the  Services, Authorized Purchaser shall pay for Services performed pursuant to a Change Order in accordance with the acceptance and payment procedures set forth in a Contract or this Master Agreement.

 

17.16.  DISCLOSURE  OF FEDERAL TAX IDENTIFICATION  NUMBER.

 

Contractor must provide Contractor's federal  tax  identification   number.  This  number  is  requested  pursuant  to  ORS  305.385,  OAR  125-246-0330(2)(d), and OAR 150-305.100.  Federal tax identification numbers provided pursuant to this authority will be used for the administration of state, federal, and local tax laws.

 

17.17.  WAIVER.

 

The failure of either party to enforce any provision of this Master Agreement or the waiver of any violation or nonperformance  of this Master Agreement in one instance shall not constitute a waiver by the party  of that  or any other  provision  nor shall it be deemed  to be a waiver  of any  subsequent  violation  or nonperformance.  No waiver, consent, modification, or change of terms of this Master Agreement  shall bind either party unless in writing and signed by both parties and, with respect to Authorized Purchaser's waiver or consent all necessary  State of Oregon approvals have been obtained. Such waiver, consent, modification, or change, if made, shall be effective only in the specific instance and for the specific purpose given.

 

17.18. DISASTER RECOVERY; BACKUP.

 

Notwithstanding the provisions of section 17.11, Contractor shall be responsible for providing disaster recovery services If Contractor experiences  or suffers a disaster as set forth on Exhibit K attached hereto and made a part hereof.

 

17.19.  INTEGRATION. 

 

This Master  Agreement including  attached  Exhibits• constitute  the entire agreement between   the   pnrties   on   the   subject   matter   hereof.  There   are   no   understandings,   agreements   or representations, oral or written, not specified herein regarding this Master Agreement.

 

17.20.   NO PARTNERSHIP. 

 

This Master Agreement is not intended, and shall not be construed, to create a partnership or joint venture between Authorized Purchaser and Contractor. Nothing In this Master Agreement shall be construed to make Authorized Purchaser and Contractor partners or joint venture participants.

 

17.21.  PUBLICITY.

 

Contractor agrees that it will not disclose the form, content or existence of this Master Agreement or any Service in any advertising, press releases or other materials distributed to prospective customers, or otherwise attempt to obtain publicity from its association with Authorized Purchaser or the State of Oregon,  whether  or not such disclosure,  publicity  or association  implies  an endorsement  by Authorized Purchaser or the Stale of Oregon of Contractor's services, without the prior written consent of Authorized Purchaser.

 

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

 

CONTRACTOR:  YOU WILL  NOT BE PAID FOR SERVICES  RENDERED BEFORE  NECESSARY AUTHORIZED PURCHASER APPROVALS.

 

STATE OF OREGON, by and through

THE DEPARTMENT OF ADMINISTRATIVE