1-Attachment 1 OAG Terms and Conditions.pdf

Attachment 1 – OAG Terms and Conditions Page 1 of 5

Attachment 1

OAG Terms and Conditions

Vendor agrees to the following Terms and Conditions and makes the following affirmations, representations and certifications and warrants that all statements and information contained herein are current, complete, true and accurate to the extent applicable to this contract. Vendor understands and acknowledges that providing a false statement, or material misrepresentations made during the performance of any resulting contract, is a material breach of contract and may void the contract. Vendor shall update all such information at any time that such information changes. If any assurance contained herein, or elsewhere in the Vendor Vendor’s documents, is shown to be false, then Vendor the contract may be terminated, payment withheld, and the Vendor shall be liable to the Agency for attorney’s fees and the costs necessary to complete the contract, including the cost of advertising and awarding a subsequent contract.

1. Vendor Eligibility

1.1. Texas Bidder: Respondent certifies that if a Texas address is shown as the address of the Respondent on this Response, Respondent qualifies as a Texas Bidder as defined in Section 2155.444(c) of the Texas Government Code.

1.2. Financial Participation Prohibited: § 2155.004, Texas Government Code, prohibits the Agency from accepting a Response that includes proposed financial participation by a person who received compensation from the Agency to participate in preparing this solicitation or the specifications contained in this solicitation. Vendor certifies: “Under § 2155.004, Texas Government Code, the Vendor certifies that the individual or business entity named in this Response is not ineligible to receive the specified contract and acknowledges that the contract may be terminated, and payment withheld if this certification is inaccurate.”

1.3. Prior Disaster Relief Contract Violation: Texas Government Code §§ 2155.006 and 2261.053, prohibit the Agency from accepting a bid or awarding a contract to any person who, in the past five years, has been convicted of violating a federal law or assessed a penalty in connection with a contract involving relief for Hurricane Rita, Hurricane Katrina, or any other disaster, as defined by § 418.004, Texas Government Code, occurring after September 24, 2005. Vendor certifies: “Under §§

2155.006 and 2261.053, Texas Government Code, the Vendor certifies that the individual or business entity named in this Response is not ineligible to receive the specified contract and acknowledges that the contract may be terminated and payment withheld if this certification is inaccurate.”

1.4. Lobbying Prohibition: The Vendor represents and warrants that payment to the Vendor and the Vendor ’s receipt of appropriated or other funds under any contract resulting from this solicitation are not prohibited by § 556.005 or § 556.008, Texas Government Code, relating to the prohibition of using state funds for lobbying activities.

1.5. Suspension and Debarment: The Vendor certifies that the vendor and its principals are eligible to participate in this transaction and have not been subjected to suspension, debarment, or similar ineligibility as determined by any federal, state, or local governmental entity. Further, that Vendor is in compliance with the State of Texas statutes and rules relating to procurement. The Vendor further certifies that it and its principals are in compliance with the State of Texas statutes and rules relating to procurement and are not listed on the State of Texas Debarred Vendor List maintained by the Texas Comptroller of Public Accounts or the System for Award Management (SAM) maintained by the General Services Administration which can be found at https://www.sam.gov.

1.6. Legal and Regulatory Actions: Vendor represents and warrants that it is not aware of and has received no notice of any court or governmental agency actions, proceedings or investigations, etc., pending or threatened against Vendor or any of the individuals or entities included in the Response within the five (5) calendar years immediately preceding the submission of the Response that would or could impair Vendor ’s performance under the contract, relate to the solicited or similar goods or services, or otherwise be relevant to Agency’s consideration of the Response. If Vendor is unable to make the preceding representation and warranty, then Vendor instead represents and warrants that it has included, as a detailed attachment in its Response, a complete disclosure of any such court or governmental agency actions, proceedings or investigations, etc. that would or could impair Vendor ’s performance under the contract, relate to the solicited or similar goods or services, or otherwise be relevant to Agency’s consideration of the Response. In addition, Vendor represents and warrants that it shall notify the Agency in writing within five (5) business days of any changes to the representations or warranties in this clause and understands that failure to so timely update the Agency shall constitute breach of contract and may result in immediate termination of the contract.

1.7. Permits, Certifications and Licenses: Vendor represents and warrants that it has determined what licenses, certifications and permits would be required under any contract and has acquired all applicable licenses, certifications, and permits.

https://www.sam.gov./

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1.8. Unfair Business Practices: Vendor represents and warrants that it has not been the subject of allegations of Deceptive Trade Practices violations under Chapter 17 of the Texas Business and Commerce Code, or allegations of any unfair business practice in any administrative hearing or court suit and that Vendor has not been found to be liable for such practices in such proceedings. Vendor certifies that it has no officers who have served as officers of other entities who have been the subject of allegations of Deceptive Trade Practices violations or allegations of any unfair business practices in an administrative hearing or court suit and that such officers have not been found to be liable for such practices in such proceedings.

2. Financial Regulations

2.1. Child Support: Under § 231.006, Family Code, the Vendor certifies that the individual or business entity named in this

Response is not ineligible to receive the specified grant, loan, or payment and acknowledges that the contract may be terminated and payment withheld if this certification is inaccurate. If the certificate is shown to be false, the Vendor shall be liable to the Agency for attorney’s fees and the costs necessary to complete the contract, including the cost of advertising and awarding a subsequent contract.

2.2. Debts and Delinquencies: As required by § 2252.903, Texas Government Code, the Vendor agrees that any payments due under any contract resulting from this solicitation shall be applied towards any debt or delinquency including, but not limited to, delinquent taxes, delinquent student loan payments, and delinquent child support.

2.3. Audit Exceptions: The Vendor has no unresolved audit exceptions with the Agency. An unresolved audit exception is an exception for which the Vendor has exhausted all administrative and/or judicial remedies and refuses to comply with any resulting demand for payment.

3. State and Agency Laws, Rules and Regulations

3.1. Antitrust: Pursuant to 15 U.S.C. § 1, et seq., and Texas Business & Commercial Code § 15.01, et seq., neither the Vendor nor the firm, corporation, partnership, or institution represented by the Vendor , or anyone acting for such a firm, corporation, partnership, or institution has violated Texas antitrust laws or federal antitrust laws, or communicated its Response directly or indirectly to a competitor of the Vendor or any other company, firm, corporation, partnership, or individual or related entities of the same, or the Vendor , engaged in the same line of business as the Vendor .

3.2. Dealings with Public Servants: The Vendor has not given, offered to give, nor intends to give at any time hereafter, any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with the submitted Response.

3.3. E-Verify: Vendor certifies that it utilizes and will continue to utilize the U.S. Department of Homeland Security’s E-Verify system to determine the eligibility of: (1) all persons employed to perform duties within Texas during the term of the contract; and (2) all persons, including subcontractors, assigned by Respondent to perform work pursuant to the contract within the United States of America.

3.4. Executive Head of a State Agency: Pursuant to § 669.003, Government Code, the Agency may not enter into a contract with a person who employs a current or former executive head of the Agency until four years has passed since that person was the executive head of the Agency. Vendor assures the Agency that it may enter a contract with the Agency in compliance with this law. If the Vendor employs a former executive head of the Agency, the Vendor must complete the following information in order for its Response to be evaluated:

Name of Former Executive: _________________________________ Name of State Agency: _____________________________________ Date of Separation: ________________________________________ Position with Vendor : ______________________________________ Date of Employment with Vendor : ____________________________

3.5. Former Agency Employees: To the extent applicable, pursuant to § 2252.901 of the Texas Government Code, Vendor represents and warrants that for professional services contracts as described by Chapter 2254 of the Texas Government Code, if a former employee of the Agency was employed by Vendor within one year of the employee’s leaving the Agency, then such employee will not perform services on projects with Vendor that the employee worked on while employed by the Agency.

3.6. No Conflicts of Interest: The Vendor represents and warrants that it has no actual or potential conflicts of interest in providing the requested items to the Agency under the solicitation and any resulting contract, if any, and that Vendor ’s provision of the requested items under the solicitation and any resulting contract, if any, would not reasonably create an appearance of impropriety.

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3.7. Buy Texas Affirmation: In accordance with Section 2155.4441 of the Texas Government Code, Vendor agrees that during the performance of a contract for services it shall purchase products and materials produced in Texas when they are available at a price and time comparable to products and materials produced outside this state.

3.8. Disaster Recovery Plan: In accordance with 13 TAC § 6.94(a)(9), Vendor shall provide to Agency the descriptions of its business continuity and disaster recovery plans.

4. Information Management, Where Applicable

4.1. Cloud Computing: To the extent applicable, pursuant to § 2054.0593(d)-(f), Texas Government Code, relating to cloud computing state risk and authorization management program, the Vendor represents and warrants that it complies with the requirements of the state risk and authorization management program and Vendor agrees that throughout the term of the contract it shall maintain its certifications and comply with the program requirements in the performance of the contract.

4.2. Contracting Information Responsibilities: To the extent applicable, Vendor represents and warrants that, if a contract is awarded under this Offer, it will comply with the requirements of § 552.372(a) of the Texas Government Code. Except as provided by § 552.374(c) of the Texas Government Code, the requirements of Subchapter J, Chapter 552 of the Government Code, may apply to the contract and Vendor agrees that the contract can be terminated if the Vendor knowingly or intentionally fails to comply with a requirement of that Subchapter.

4.3. Cybersecurity Training: To the extent applicable, Vendor hereby certifies that all employees, agents, subcontractors, officers, and/or any other users authorized by the Vendor that have access to a state computer system or database shall complete a cybersecurity training program certified under § 2054.519, Texas Government Code at the frequency prescribed by § 2054.5192(c). The Vendor further certifies and agrees to maintain evidence of any such completed cybersecurity training and shall, upon the Agency’s request, furnish evidence of the completed cybersecurity training to the Agency in the frequency, manner, and form prescribed by the Agency.

4.4. Data Management and Security Controls: To the extent applicable, and pursuant to § 2054.138 of the Texas Government Code, Vendor certifies that it will comply with the security controls required under any contract resulting from this Offer and will maintain records and make them available to Agency as evidence of Vendor ’s compliance with the required controls.

5. Boycotts, Prohibitions and Terrorism

5.1. COVID-19 Passport Prohibition: The Vendor certifies that it does not require its customers to provide any documentation certifying the customer’s COVID-19 vaccination or post-transmission recovery on entry to, to gain access to, or to receive service from the Vendor ’s business. The Vendor acknowledges that such a vaccine or recovery requirement would make the Vendor ineligible for a state-funded contract.

5.2. Critical Infrastructure: To the extent applicable, and pursuant to § 2274.0102, Texas Government Code, the Vendor certifies that neither it nor its parent company nor any affiliate of Vendor or its parent company, is: (1) majority owned or controlled by citizens or governmental entities of China, Iran, North Korea, Russia, or any other country designated by the Governor under Texas Government Code § 2274.0103, or (2) headquartered in any of those countries.

5.3. Energy Company Boycotts: Vendor represents and warrants that: (1) it does not, and will not for the duration of the contract, boycott energy companies or (2) the verification required by § 2274.002 of the Texas Government Code does not apply to the contract. If circumstances relevant to this provision change during the course of any contract, Vendor shall promptly notify Agency.

5.4. Entities that Boycott Israel: Pursuant to § 2271.002 of the Texas Government Code, Vendor certifies that it (1) does not boycott Israel and (2) will not boycott Israel during the term of any contract resulting from the solicitation.

5.5. Excluded Parties: Vendor certifies that it is not listed in the prohibited vendors list authorized by Executive Order No.

13224, “Blocking Property and Prohibiting Transactions with Persons who Commit, Threaten to Commit, or Support Terrorism”, published by the United States Department of the Treasury, Office of Foreign Assets Control.

5.6. Firearm Entities and Trade Associations Discrimination: To the extent the Vendor is required pursuant to Texas Government Code, Title 10, Subtitle F, § 2274.002, the Vendor certifies that it (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association, and (2) will not for the duration of any resulting contract or purchase order hereunder, discriminate against a firearm entity or firearm trade association, as the term is defined under § 2274.001(3), Texas Government Code, or the verification required by § 2274.002, of the Texas Government Code does not apply to the contract.

5.7. Foreign Terrorist Organizations: In accordance with Texas Government Code, Chapter 2252, Subchapter F, the Vendor hereby represents and warrants that it is not a company identified on the lists prepared and maintained under Texas Government Code §§ 2270.0052 (companies with business operations in Sudan), 2270.0102 (companies with business operations in Iran), or 2270.0152 (companies known to have contracts with or provide supplies or services to a foreign

Attachment 1 – OAG Terms and Conditions Page 4 of 5 terrorist organization). Notwithstanding the foregoing, a company that the United States government affirmatively declares to be excluded from its federal sanctions regime relating to Sudan, Iran, or to a foreign terrorist organization, is not subject to contract prohibition under this clause. A company claiming such exemption must submit the official copy of the declaration.

5.8. Human Trafficking Prohibition: Under § 2155.0061 of the Texas Government Code, the Vendor certifies that the individual or business entity named in this Offer or contract is not ineligible to receive the specified contract and acknowledges that this contract may be terminated and payment withheld if this certification is inaccurate.

6. Document Execution

6.1. Terms and Conditions Attached: Any terms and conditions attached to a Response will not be considered unless specifically referred to in the Response.

6.2. Signature Authority: By submitting this Offer, Vendor represents and warrants that the individual submitting this document, and the documents made part of this Response, is authorized to sign such documents on behalf of the Vendor and to bind the Vendor under any contract that may result from the submission of this Offer. Vendor submits as proof and verification of the signing authority of the signatory below the Corporate Board of Director’s Resolution, or similar document authorizing the representative to enter contracts on the Vendor ’s behalf.

6.3. Vendor Acknowledgement and Certification: Vendor hereby certifies that it has received, reviewed, and accepted the solicitation and the included statement of work, requirements, terms and conditions. The Vendor hereby acknowledges that it can meet all of the requirements as stated in the solicitation excluding any requirements it took exception to, as explicitly set forth in its Response.

7. Indemnities

7.1. Indemnification (General): VENDOR SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE STATE OF

TEXAS AND THE AGENCY, AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES,

CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, LOSSES, DEMANDS, OR SUITS, AND ALL COSTS, ATTORNEY FEES, AND EXPENSES ARISING OUT OF, IN

CONNECTION WITH, OR RESULTING FROM ANY ACTS OR OMISSIONS, NEGLIGENCE, OR WILLFUL

MISCONDUCT OF THE CONTRACTOR OR ITS AGENTS, EMPLOYEES, SUBCONTRACTORS, ORDER

FULFILLERS, SUPPLIERS, OR SUBCONTRACTORS IN THE EXECUTION OR PERFORMANCE OF THE

CONTRACT AND ANY PURCHASE ORDERS ISSUED UNDER THE CONTRACT. THE DEFENSE TO ANY SUCH ACTION, CLAIM, DEMAND, OR SUIT SHALL BE COORDINATED BY VENDOR WITH THE AGENCY WHEN

TEXAS STATE AGENCIES ARE NAMED DEFENDANTS AND CONTRACTOR MAY NOT AGREE TO ANY

SETTLEMENT WITHOUT FIRST OBTAINING THE ADVANCE, WRITTEN CONCURRENCE FROM THE

AGENCY. CONTRACTOR AND THE AGENCY AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH

OTHER OF ANY SUCH CLAIM.

7.2. Intellectual Property Infringement. VENDOR SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE STATE OF TEXAS AND THE AGENCY, AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM ANY AND ALL THIRD PARTY CLAIMS INVOLVING INFRINGEMENT OF UNITED STATES PATENTS, COPYRIGHTS, TRADEMARKS, SERVICE MARKS, TRADE SECRETS AND ANY

OTHER INTELLECTUAL PROPERTY OR INTANGIBLE PROPERTY RIGHTS IN CONNECTION WITH ANY

DELIVERABLE PROVIDED HEREUNDER, THE WORK OR PERFORMANCE OR ACTIONS OF CONTRACTOR

PURSUANT TO THE CONTRACT, OR THE AGENCY’S USE OF ANY DELIVERABLE OR WORK PRODUCT

PROVIDED BY CONTRACTOR. CONTRACTOR AND THE AGENCY AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. CONTRACTOR SHALL BE LIABLE TO PAY, AND/OR REIMBURSE THE AGENCY FOR, ALL JUDGMENTS, CLAIMS, DAMAGES, LOSSES, AND COSTS OF DEFENSE INCLUDING WITHOUT LIMITATION ATTORNEYS' FEES, COURT COSTS AND SIMILAR EXPENSES. THE

DEFENSE SHALL BE COORDINATED BY CONTRACTOR WITH THE AGENCY WHEN TEXAS STATE

AGENCIES ARE NAMED DEFENDANTS AND CONTRACTOR MAY NOT AGREE TO ANY SETTLEMENT

WITHOUT FIRST OBTAINING THE ADVANCE, WRITTEN CONCURRENCE FROM THE AGENCY.

CONTRACTOR SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE STATE OF TEXAS AND THE

AGENCY, AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM ANY AND ALL LOSSES, LIABILITIES, DAMAGES, CAUSES OF ACTION, CLAIMS, DEMANDS AND EXPENSES INCURRED BY AGENCY AND/OR THE STATE OF TEXAS ARISING OUT OF OR

RESULTING FROM BREACH OF ANY WARRANTY OBLIGATION HEREUNDER.

8. Additional Terms and Conditions

8.1. Dispute Resolution: The dispute resolution process provided for in Chapter 2260 of the Texas Government Code must be used to attempt to resolve any dispute arising under the contract.

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8.1.1 Dispute Resolution for Engineering, Architectural, or Construction Services:

8.2. Excess Obligations Prohibited: The contract is subject to termination or cancellation, without penalty to Agency, either in whole or in part, subject to the availability of state funds.

8.3. Public Information Act: Information, documentation, and other material in connection with this contract may be subject to public disclosure pursuant to Chapter 552 of the Texas Government Code (the “Public Information Act”). In accordance with Section 2252.907 of the Texas Government Code, Vendor is required to make any information created or exchanged with the State pursuant to the contract, and not otherwise excepted from disclosure under the Texas Public Information Act, available in a format that is accessible by the public at no additional charge to the State.

8.4. State Auditor: The state auditor may conduct an audit or investigation of any entity receiving funds from the state directly under the contract or indirectly through a subcontract under the contract. The acceptance of funds directly under the contract or indirectly through a subcontract under the contract acts as acceptance of the authority of the state auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. Under the direction of the legislative audit committee, an entity that is the subject of an audit or investigation by the state auditor must provide the state auditor with access to any information the state auditor considers relevant to the investigation or audit.