Rev. 04.01.25

ATTACHMENT B

CONTRACT TERMS, CONDITIONS AND AFFIRMATIONS

1. Defined Terms: As used in this Attachment B, the following capitalized terms have the meanings specified below.

(a) Anonymized, Anonymizing and Anonymization shall have the meanings assigned by the National Institute of Standards and Technology (NIST) in NIST SP 800-122, and Anonymized data refers to previously identifiable information that has been de-identified and for which a code, audit log, link or other association for re-identification no longer exists. Anonymization includes, without limitation, masking for small numbers and multiple layers of anonymization techniques. The process of creating Anonymized data is the irreversible process of removing identifiable information from datasets.

(b) Authorized User shall mean (i) TEA, (ii) any Texas Local Education Agency (“LEA”), school district staff member, open-enrollment charter school, open-enrollment charter school staff member, private school, private school staff member, teacher, tutor, parent, student and/or resident (whether currently in-state or temporarily outside the State), and (iii) any other third party and its or their staff or personnel serving or acting on behalf of any of the Authorized Users named in (i) or (ii) above.

(c) Cloud Computing means, in accordance with Section 2054.0593 of the Texas Government Code, a model for enabling ubiquitous, convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction.

(d) Commercial shall mean selling or reselling (whether directly or indirectly, via outright sale, license or otherwise) for financial consideration, access to the Contractor Materials or the Technology Platform.

(e) Comptroller means the Texas Comptroller of Public Accounts.

(f) Contract means the document entered into between TEA and Contractor, including all attachments (for the avoidance of doubt, including, but not limited to, the Standard TEA Terms and Conditions and any Special Terms and Conditions), annexes, exhibits, schedules, amendments, renewals and extensions of or to the Contract.

(g) Contract Manager means the respective person(s) representing TEA or Contractor, as indicated by the Contract, for the purposes of administering the Contract Project.

(h) Contract Project means the purpose intended to be achieved through the Contract.

(i) Contractor means the party to this Contract who is providing the contracted goods or services to TEA, provided that, prior to Contract award, Contractor means the person or entity who provides a Response (i.e., a “Respondent”).

(j) Contractor Materials means, collectively: (i) the pre-existing, complete, standalone materials or products of Contractor marketed and offered by Contractor to third parties prior to provision to TEA that Contractor can document as such, (ii) all Intellectual Property Rights embodied therein, and (iii) any derivatives thereof (other than those created by TEA during the Term) and all Intellectual Property Rights embodied in those derivatives. Contractor Materials includes any Third-Party Materials. Contractor Materials includes the Technology Platform.

(k) FERPA means the Family Educational Rights and Privacy Act (20 U.S.C. § 1232g; 34 CFR Part 99), the regulations issued pursuant thereto, and any amendments thereto.

(l) Generative AI means an artificial intelligence capable of producing new or original outputs that resemble human-created content. Outputs created by a Generative AI can include text, images, audio, video, or computer code. Producing new and original content can include modifications to, or derivations of, existing content used as an input or prompt for the Generative AI. Generative AI does not include narrow AI if the narrow AI is incapable of producing new or original outputs.

(m) HSP means a HUB subcontracting plan.

(n) HUB means an entity certified by the Comptroller as a Historically Underutilized Business as defined in Section 2161.001 of the Texas Government Code.

(o) Intellectual Property Rights means the legal rights or interests evidenced by or embodied in: (i) any idea, design, concept, method, process, technique, apparatus, invention, discovery, or improvement, including any patents, trade secrets, and know-how; (ii) any work of authorship, including any copyrights, moral rights or neighboring rights; (iii) any trademark, service mark, trade dress, trade name, or other indicia of source or origin; (iv) domain name registrations, social media pages and associated handles and hashtags; and (v) any other similar rights. The Intellectual Property Rights of a party include all legal rights or interests that the party may have acquired by assignment or license with the right to grant sublicenses.

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(p) Non-Commercial means any activity other than Commercial activities.

(q) Personally Identifiable Information means information that alone or in conjunction with other information identifies an individual, including, but not limited to, an individual’s: name; Social Security number; date of birth; driver’s license number; government-issued identification number; mother’s maiden name; unique biometric data (including, but not limited to, the individual’s fingerprint, voice print, retina or iris image, or a record of hand or face geometry); unique electronic identification number;

address or routing code; telecommunication access device; account number or credit or debit card number in combination with any required security code, access code, or password that would permit access to an individual’s financial account; and/or identity and relates to the physical or mental health or condition of the individual, the provision of health care to the individual;

or payment for the provision of health care to the individual.

With regard to information relating to students, the term also includes:

(i) The student’s name;

(ii) The name of the student’s parents or other family members;

(iii) The address of the student’s parent or other family members;

(iv) A personal identifier, such as the student's Social Security number, student number, or biometric record (as defined in 34

CFR 99.3);

(v) Other indirect identifiers, such as the student's date of birth, place of birth, and mother's maiden name;

(vi) Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or

(vii) Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.

(r) Protected Data means the data, in electronic and physical form, that

(i) is collected by and through any Technology Platform provided or operated by Contractor,

(ii) may be input by Authorized Users, and/or

(iii) is generated by Authorized Users or their devices by interacting with any Technology Platform provided by or through

Contractor, including, without limitation, Personally Identifiable Information pertaining to students as well as to their parents or legal guardian and all grades, scorings, rankings, percentage comparisons, answers and responses to questions and assignments, and “educational records” as that term is defined by FERPA. Protected Data shall also include all versions and portions of any part of the Protected Data, all files and databases containing such Protected Data, as well as any information derived or generated therefrom through database hygiene, database management or otherwise.

(s) Response is what a Contractor submits in response to the solicitation that underlies this Contract, if any.

(t) Service Credit means any applicable credit, discount or refund for inadequate performance of the products or services under the Contract including, without limitation, of a Technology Platform, that could be construed as liquidated damages and has been incorporated into this Contract as a valid pre-estimate of damages TEA will sustain which will not be capable of precise determination; such credit is therefore considered to be an agreed-upon cost incurred as a result of Contractor’s failure to meet the contracted-for requirements and is not a penalty.

(u) Special Terms and Conditions means the provisions contained in an Attachment C, if any.

(v) Standard TEA Terms and Conditions or Standard Terms means the provisions contained in this Attachment B.

(w) State means the State of Texas.

(x) TEA means the Texas Education Agency.

(y) TEA Confidential Information means information that is confidential under the provisions of FERPA, the Texas Public Information Act, or other applicable State or federal laws and (1) that is provided to Contractor by TEA, (2) that Contractor collects on behalf of TEA, or (3) that Contractor obtains in connection with the provision of goods and services hereunder. TEA Confidential Information also means information that is otherwise designated by TEA as non-public. TEA Confidential Information includes, without limitation, Protected Data. Examples of TEA Confidential Information include: (i) Personally Identifiable Information (ii) criminal background checks; (iii) an e-mail address of a member of the public, unless the individual waives his or her right to e-mail confidentiality by affirmatively consenting to disclose the e-mail address or the individual seeks to contract or has a contract with TEA; (iv) certain personnel information concerning a TEA employee including, but not limited to, home address, home telephone number, emergency contact information, and family member information (if the employee elects in writing to keep this information confidential), personal medical information, and information reflecting personal financial

B - 3 decisions such as the employee’s choice of insurance carrier or choice to contribute money to a 401(k); (v) information about security vulnerabilities in TEA systems; (vi) dataset extracted from confidential sources (e.g., SAS data sets); and (vii) student IDs (FERPA protected) and some government IDs. TEA Confidential Information also includes, without limitation, all cookies and metadata associated with TEA’s webpages and online content. TEA Confidential Information does not include information that is proven by written records: (i) to be publicly known at the time of disclosure, (ii) to subsequently become publicly known through no fault of the Contractor and that is not under any other restrictions, or (iii) to have been obtained by Contractor through legitimate means other than from TEA, TEA’s representatives, other contractors, or Authorized Users and that is not under any other restrictions.

(z) TEA Trademarks License has the meaning assigned to such term in Clause 20 of this Attachment B.

(aa) Technology Platform means the software and infrastructure (including but not limited to Contractor’s software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements, and modifications) in a hosted environment provided by Contractor to which TEA and/or Any Authorized User is being granted access under this Contract via a web site, designated IP address(es), or APIs, as described more fully in Attachment G to the Contract.

(bb) Term means the period of time between the execution of the Contract and the expiration of the Contract.

(cc) Third-Party Materials means any licensed third-party materials, and derivatives thereof, provided by Contractor to TEA.

(dd) WCAG means the Web Content Accessibility Guidelines, version 2.1 of June 5, 2018, level AA, from the World Wide Web

Consortium, which are incorporated herein by reference.

(ee) Working Day means any day, Monday-Friday, other than a national holiday or state holiday, each as defined by Section 662.003 of the Texas Government Code, the Friday after Thanksgiving Day, December 24th, December 26th and any other day that TEA is closed. Use in these Standard Terms of the term “day” or “calendar day” rather than “working day” shall mean a calendar day.

(ff) Works means all tangible or intangible material, products, ideas, documents or works of authorship prepared or created by

Contractor for or on behalf of TEA at any time after the beginning date of the Contract. Works includes but is not limited to computer software, data, metadata, source code, concepts, systems, methodologies, information, images, illustrations, designs, graphics, drawings, educational materials, assessment forms, testing materials, logos, trademarks, patentable materials, input and output of a Generative AI and any revisions, edits, or derivatives thereof, etc. Works excludes any Contractor Materials, as defined above.

2. Excess Obligations Prohibited: This Contract is subject to termination or cancellation, without penalty to TEA, either in whole or in part, subject to the availability of State funds. TEA is a State agency whose authority and appropriations are subject to actions of the Texas Legislature. If TEA becomes subject to a legislative change, revocation of statutory authority, or lack of appropriated funds that would render either TEA’s or Contractor’s delivery or performance under the Contract impossible or unnecessary, the Contract will be terminated or cancelled and be deemed null and void. In the event of a termination or cancellation under this provision, TEA will not be liable to Contractor for any damages that arise out of or are related to such termination or cancellation, and TEA will not be required to give prior notice of such termination or cancellation. Termination under this Clause shall not affect TEA's right to use previously paid licensed goods or services through the term of each such license, or any maintenance or support paid prior to such termination.

3. Indemnification: For the avoidance of doubt, TEA shall not indemnify Contractor or any other entity under the Contract because

TEA is prohibited by law from indemnifying third parties.

General CONTRACTOR SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE STATE AND TEA, AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, DESIGNEES, AND/OR ANY AUTHORIZED USER THAT DIRECTLY OR INDIRECTLY RECEIVES GOODS OR SERVICES FROM CONTRACTOR PURSUANT TO THIS CONTRACT, FROM AND AGAINST ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES ARISING OUT OF, OR RELATING TO ANY ACTS OR OMISSIONS OF CONTRACTOR OR ITS AGENTS, EMPLOYEES, SUBCONTRACTORS, ORDER FULFILLERS, OR SUPPLIERS OF SUBCONTRACTORS IN THE EXECUTION OR PERFORMANCE OF THE CONTRACT AND ANY PURCHASE ORDERS ISSUED UNDER THE CONTRACT. THE DEFENSE SHALL BE COORDINATED BY CONTRACTOR WITH THE OFFICE OF THE TEXAS ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND CONTRACTOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE TEXAS ATTORNEY GENERAL. CONTRACTOR AND TEA AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER

OF ANY SUCH CLAIM.

Intellectual Property CONTRACTOR SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE STATE AND TEA, AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, DESIGNEES, AND/OR ANY AUTHORIZED

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USER THAT DIRECTLY OR INDIRECTLY RECEIVES GOODS OR SERVICES FROM CONTRACTOR PURSUANT TO THIS CONTRACT, FROM AND AGAINST ANY AND ALL LIABILITY, ACTIONS, CLAIMS, VIOLATIONS, MISAPPROPRIATIONS OR INFRINGEMENT OF ANY PATENT, TRADEMARK, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS AND/OR OTHER INTANGIBLE PROPERTY, PUBLICITY OR PRIVACY RIGHTS, ARISING OUT OF OR RELATING TO:

(A) THE PERFORMANCE OR ACTIONS OF CONTRACTOR PURSUANT TO THIS CONTRACT; (B) ANY DELIVERABLE, WORKS, DERIVATIVES OF SUCH DELIVERABLES AND WORKS, CONFIGURED SERVICE OR OTHER SERVICE PROVIDED HEREUNDER; AND/OR (C) TEA’S AND/OR CONTRACTOR’S USE OF OR ACQUISITION OF ANY REQUESTED SERVICES OR OTHER ITEMS PROVIDED TO TEA BY CONTRACTOR OR OTHERWISE TO WHICH TEA HAS ACCESS AS A RESULT OF CONTRACTOR’S PERFORMANCE UNDER THE CONTRACT. CONTRACTOR AND TEA AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. CONTRACTOR SHALL BE LIABLE TO PAY ALL RELATED COSTS, ATTORNEYS’ FEES, AND EXPENSES. THE DEFENSE SHALL BE COORDINATED BY CONTRACTOR WITH THE OFFICE OF THE TEXAS ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND CONTRACTOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE TEXAS ATTORNEY GENERAL. IN ADDITION, CONTRACTOR WILL REIMBURSE TEA AND THE STATE FOR ANY CLAIMS, DAMAGES, COSTS, EXPENSES OR OTHER AMOUNTS, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ FEES AND COURT COSTS, ARISING FROM ANY SUCH CLAIM. IF TEA DETERMINES THAT A CONFLICT EXISTS BETWEEN ITS INTERESTS AND THOSE OF CONTRACTOR OR IF TEA IS REQUIRED BY APPLICABLE LAW TO SELECT SEPARATE COUNSEL, TEA WILL BE PERMITTED TO SELECT SEPARATE COUNSEL AND CONTRACTOR WILL PAY ALL REASONABLE COSTS OF TEA’S COUNSEL. FOR AVOIDANCE OF DOUBT, NOTWITHSTANDING THE ABOVE, ANY GOODS OR SERVICES

CREATED BY A GENERATIVE AI ARE SUBJECT TO THIS INDEMNITY.

Taxes/Workers’ Compensation/Unemployment Insurance – Including Indemnity CONTRACTOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF THIS CONTRACT, CONTRACTOR SHALL BE ENTIRELY RESPONSIBLE FOR THE LIABILITY AND PAYMENT OF CONTRACTOR’S AND CONTRACTOR’S EMPLOYEES’ TAXES OF WHATEVER KIND, ARISING OUT OF THE PERFORMANCES IN THIS CONTRACT. CONTRACTOR AGREES TO COMPLY WITH ALL STATE AND FEDERAL LAWS APPLICABLE TO ANY SUCH PERSONS, INCLUDING LAWS REGARDING WAGES, TAXES, INSURANCE, AND WORKERS’ COMPENSATION. TEA AND/OR THE STATE SHALL NOT BE LIABLE TO CONTRACTOR, ITS EMPLOYEES, AGENTS, OR OTHERS FOR THE PAYMENT OF TAXES OR THE PROVISION OF UNEMPLOYMENT INSURANCE AND/OR WORKERS’ COMPENSATION OR ANY BENEFIT AVAILABLE TO A STATE

EMPLOYEE OR EMPLOYEE OF ANOTHER GOVERNMENTAL ENTITY CUSTOMER.

CONTRACTOR AGREES TO INDEMNIFY AND HOLD HARMLESS TEA, THE STATE AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, AND/OR ASSIGNEES FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEYS’ FEES, AND EXPENSES, ARISING OUT OF OR RELATING TO PAYMENT OF TAXES OR THE PROVISION OF UNEMPLOYMENT INSURANCE AND/OR WORKERS’ COMPENSATION OR ANY BENEFIT AVAILABLE TO A STATE EMPLOYEE OR EMPLOYEE OF ANOTHER GOVERNMENTAL ENTITY CUSTOMER IN ITS PERFORMANCE UNDER THIS CONTRACT. CONTRACTOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING ATTORNEYS’ FEES. THE DEFENSE SHALL BE COORDINATED BY CONTRACTOR WITH THE OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND CONTRACTOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE ATTORNEY GENERAL. CONTRACTOR AND TEA AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH

CLAIM.

4. Signature Authority and Binding Effect: By executing the Contract, Contractor represents and warrants that the individual signing the Contract and any documents made part of the Contract, including, without limitation, the Response, is authorized to sign such documents on behalf of the Contractor and to bind the Contractor under the Contract. The Contract shall be binding upon and shall inure to the benefit of TEA and Contractor and to their respective permitted successors, and assigns.

5. Responsibility for Actions and Limitation on Authority: Contractor is solely responsible for its actions and those of its agents, employees or subcontractors. Contractor and its agents, employees or subcontractors shall have no authority to act for or on behalf of TEA or the State except as expressly provided for in the Contract; no other authority, power or use is granted or implied. Contractor and its agents, employees and subcontractors may not incur any debt, obligation, expenses, or liability of any kind on behalf of TEA or the State.

6. Final Expression, and Superseding Document: The Contract represents the final and complete expression of the terms of agreement between the parties. The Contract supersedes any previous understandings or negotiations between the parties and any documents referenced via URLs, “click-through” license agreements, end-user licenses, subscription agreements, terms of use or other terms that may be presented on, through or by the Technology Platform provided or operated by Contractor (whether presented before or after Contract signing) (collectively, “Supplemental Terms”). Such Supplemental Terms shall have no force and effect with respect to the Parties or any Authorized Users except with respect to the Creative Commons and open source licenses specified in Attachment E to the Contract. Contractor hereby represents and warrants that no Creative Commons licenses or open source licenses are applicable to any Works or Contractor Materials (other than a Technology Platform) except as provided in Attachment E to the Contract, and if no Attachment E is attached to the Contract, no such Supplemental Terms apply to this Contract. Subject to the foregoing, any representations, oral statements, promises or warranties that differ from the Contract shall have no force or effect.

The Contract may be modified, amended or extended as provided in Clause 7 or Clause 37 below.

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Notwithstanding the foregoing, a particular Authorized User may agree to terms that are more protective of that Authorized User or their interests provided those terms do not conflict with the terms and conditions of this Contract. No such terms and conditions shall have any effect to the extent that they conflict with or diminish the rights of any Authorized User, or the protections afforded that Authorized User through this Contract.

7. Contract Change Management Procedure and Amendments: All modifications, amendments or extensions to this Contract are subject to Clause 2 of these Standard TEA Terms and Conditions, will be executed on standard TEA forms, and will follow TEA’s internal contracting process. All modifications, amendments or extensions will be initiated by TEA Contract and Purchasing staff. A modification, amendment, or extension to this Contract will become effective on the date of signature by TEA or the effective date shown on such, modification, amendment or extension document, whichever is later. All modifications, amendments, or extensions (other than a renewal as provided for in the Contract) must be in writing and signed by both parties. Notwithstanding the foregoing, TEA may make technical amendments in order to correct manifest errors in the Contract, provided such technical amendments would not have a materially adverse effect on Contractor and Contractor does not contest such amendments in writing within 30 days after TEA provides written notice to Contractor of such technical amendments.

(a) Written amendments are required for the following Contract changes:

i. Any revision which would result in the need for additional funding;

ii. Revisions or additions to the scope of work, deliverables, or objectives of the Contract, other than revisions permitted by paragraph (b) of this Clause 7;

iii. Any extension of the period of the Contract other than a renewal as provided for in the Contract;

iv. Any reduction of funds or reduction in the scope of work, other than revisions permitted by paragraph (b) of this Clause

7; and

v. Any change to the Standard TEA Terms and Conditions.

(b) Budget revisions approved by Contract Managers may be permitted, provided that: (1) any changes are documented in a form prepared by the TEA Contracts and Purchasing Division; (2) such budget revisions are countersigned by Contract Manager and Contractor; and (3) such changes are approved in writing by the TEA Contracts and Purchasing Division. Such budget revisions may only be considered in the following circumstances:

i. Reallocating existing funds among existing Contract tasks/deliverables (up to 25% increase or any decrease for each specified task/deliverable, provided that total Contract value does not increase);

ii. Reallocating funds across TEA fiscal years and State bienniums; and

iii. Revisions to the scope of work consisting of a reduction to specified tasks that would decrease the total Contract value.

Unauthorized Purchases All changes to this Contract must follow the change management procedures set forth above. Any work not contemplated in this Contract must be added to this Contract in a formal contract amendment processed by the TEA Contracts and Purchasing Division prior to the work commencing. Only four individuals are authorized to execute contracts on behalf of the Texas Education Agency:

The Commissioner of Education, the Deputy Commissioner of Finance, the Associate Commissioner of Agency Finance and the Director of Contracts and Purchasing. An amendment not signed by one of these four individuals is void. TEA shall have no obligation to pay for work performed without an executed Contract amendment in place in accordance with the foregoing. For any questions about Contract changes and to verify an amendment or budget revision, please email: teacontractmonitoring@tea.texas.gov.

Updates to Standard TEA Terms and Conditions TEA updates the TEA Standard Terms and Conditions on a regular basis to account for changes to laws and evolving agency needs.

Contractor agrees that updated Standard TEA Terms and Conditions may be included in any amendment, renewal, or other document altering this Contract and that any negotiations regarding such updated Standard TEA Terms and Conditions will be limited to terms that have changed since the most recent Standard TEA Terms and Conditions attached to the Contract.

8. Assignment: Contractor may not assign the Contract or assign, transfer or delegate, in whole or in part, any of its interest in, or rights or obligations under, the Contract without the prior written consent of TEA, and any attempted or purported assignment, transfer or delegation thereof without such consent shall be null and void. To seek consent for assignment of this Contract, Contractor should contact TEAContractMonitoring@tea.texas.gov.

9. Mergers, Conversions, and Name Changes: Contractor must notify TEA if Contractor is party to a merger, conversion to a different entity type, or amendment of its name within 15 calendar days of the effective date of the merger, conversion or name change. Upon effectiveness of the merger, conversion or name change, Contractor must submit to TEA (1) a certified copy of the merger, conversion or amendment document filed with Contractor’s home state and (2) if Contractor is not a Texas entity, sufficient evidence to prove Contractor has updated its registration to transact business in Texas with the Texas Secretary of State pursuant to Chapter 9 of the Texas Business Organizations Code. Submissions under this Clause should be made to TEAContractMonitoring@tea.texas.gov.

If Contractor is a non-surviving party to the merger, Contractor’s representatives may designate a surviving party of the merger.

Subject to TEA approval in Clause 8, Assignment, the Contract will be considered to have been assigned to the designated survivor on the effective date of the merger or acquisition.

If Contractor survives the merger, no changes to the Contract shall be made. Payment will continue to be made directly to Contractor or its designee pursuant to the Contract.

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10. Subcontracting: Contractor may not subcontract any or all of the work and/or obligations due under the Contract without prior written approval of TEA. If the Contractor intends to enter into any subcontracts, Contractor shall send notice of such intent to the Contract Manager with a copy sent to TEAContractMonitoring@tea.texas.gov. Subcontracts, if any, entered into by the Contractor shall be in writing and be subject to the requirements of the Contract. Should Contractor subcontract any of the services required in the Contract, Contractor expressly understands and acknowledges that in entering into such subcontract(s), TEA is in no manner liable to any subcontractor(s) of Contractor. In no event shall this provision relieve Contractor of the responsibility for ensuring that the services performed under all subcontracts are rendered in compliance with the Contract.

11. Personnel Assignments, Transfers, HUB Subcontracting, Substitutions and Reporting: TEA reserves the right to request changes in personnel assigned to the Contract Project. The TEA Contract Manager must pre-approve any changes in key personnel throughout the Term. Pursuant to 34 Tex. Admin. Code § 20.281-298 and Chapter 2161 of the Texas Government Code, Contractor shall maintain business records documenting compliance with the HSP and shall submit compliance reports to TEA. Any changes to the HSP must be approved by TEA HUB Coordinator before subcontracting changes are initiated. Substitutions are not permitted without written approval of TEA Contract Manager. If Contractor subcontracts any of the work without prior authorization and without complying with this Clause, Contractor is deemed to have breached the Contract and is subject to any remedial actions provided by Chapter 2161 of the Texas Government Code and other applicable State law. Contractor will be responsible for maintaining business records documenting compliance with HUB Program requirements. Contractor shall submit a Progress Assessment Report (PAR) monthly documenting all subcontractor payments made in the preceding month. Submission of the PAR is a condition for payment.

PAR’s are due no later than the 10th day of the following month. The PAR is required to be submitted monthly, even if no reportable activity occurred for the month. Reports shall be submitted electronically to the HUBOffice@tea.texas.gov. In addition to the PAR, Contractor shall also create and maintain a monitoring report to document that it is diligently monitoring and enforcing subcontractor compliance with the Contract. When requested by TEA, Contractor shall furnish TEA with satisfactory proof of its compliance with this provision.

12. Interpretation: If this Contract is the result of a competitive solicitation, the terms, conditions, and assurances stated in such solicitation, if any, as well as Contractor’s Response thereto, are incorporated herein by reference. In the event of a conflict between or among the various documents comprising the Contract, the order of precedence set forth in the Contract shall apply.

13. Severability: In the event that any provision of this Contract is later determined to be invalid, void, or unenforceable, the invalid provision will be deemed severable and stricken from the Contract as if it had never been incorporated herein. The remaining terms, provisions, covenants, and conditions of this Contract shall remain in full force and effect, and shall in no way be affected, impaired, or invalidated.

14. Proof of Financial Stability, Records Retention and the Right to Audit: TEA may require Contractor to provide proof of financial stability prior to or at any time during the Term.

Contractor shall maintain and retain all records relating to the performance of the Contract, including supporting fiscal documents adequate to ensure that claims for Contract funds are in accordance with applicable State requirements. These records will be maintained and retained by Contractor for a period of seven years after (a) the Contract expiration date or (b) the resolution of all audit, claim, and litigation matters related to the Contract, whichever is later.

15. State Auditor’s Right to Audit: Pursuant to Section 2262.154 of the Texas Government Code, the State auditor may conduct an audit or investigation of Contractor or any other entity or person receiving funds from the State directly under this Contract or indirectly through a subcontract under this Contract. The acceptance of funds by Contractor or any other entity or person directly under this Contract or indirectly through a subcontract under this 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, Contractor or other 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. Contractor will ensure that this Clause concerning the authority to audit funds received indirectly by subcontractors through the Contract and the requirement to cooperate is included in any subcontract it awards.

Contractor further agrees that acceptance of funds under this Contract acts as acceptance for TEA to conduct an audit or investigation in connection with those funds. Contractor, subcontractors, and any entities receiving funds through this Contract shall cooperate fully with TEA in the conduct of the audit or investigation, including making available at reasonable times and upon reasonable notice, and for a reasonable period, work papers, reports, books, records, supporting documents and any other records kept current by them pertaining to the Contract for purposes of inspecting, monitoring, auditing or evaluating by TEA and the State of Texas.

16. Technology Platform (SaaS) License

(a) License to Access and Use Technology Platform: Contractor hereby grants to TEA, exercisable by TEA and by and through its Authorized Users, a nonexclusive, royalty-free, irrevocable, transferable and sublicensable right and license throughout the world during the Term and such additional periods, if any, as Contractor is required to provide any Technology Platform, to: (i) access and use the Technology Platform, including in operation with other software, hardware, systems, networks, and Technology Platform, for TEA’s permitted uses; (ii) generate, print, copy, upload, download, store and otherwise process all graphical user interfaces, audio, visual, digital, and other output, displays, and content as may result from any access to or use of the Technology Platform; (iii) prepare, reproduce, print, download and use as many copies of the documentation as may be necessary or useful for any use of the Technology Platform under this Contract; (iv) access and use the Technology Platform mailto:HUBOffice@tea.texas.gov

B - 7 for all such non-production uses and applications as may be necessary or useful for the effective use of the Technology Platform as permitted hereunder, including for purposes of analysis, development, configuration, integration, testing, training, maintenance, support, and repair, which access and use will be without charge and shall not be included for any purpose in any calculation of TEA’s or its Authorized Users’ use of the Technology Platform, including for purposes of assessing any fees or other consideration payable to Contractor or determining any excess use of the Technology Platform as described in an order; and (v) perform, display, execute, reproduce, and modify (including to create improvements and derivative works of), and distribute and otherwise make available to Authorized Users, any Technology Platform solely to the extent necessary to access or use the Technology Platform in accordance with the terms and conditions of this Contract.

(b) Technology Platform Service Levels and Service Credits: Contractor shall make the Technology Platform, if any, available to Authorized Users in accordance with Attachment F to the Contract, if attached, and provide the Service Credits set forth in Attachment F to the Contract for any failure to meet the agreed upon service levels.

(c) Technical Support Service Levels: Contractor shall provide Authorized Users with technical support in accordance with

Attachment F to the Contract, if any.

(d) No Indemnities for Authorized Users: The Parties hereby acknowledge and agree that since Contractor controls the means of access to the Technology Platform and TEA is prohibited by law from indemnifying third parties, TEA shall have no responsibility or liability for: (1) verifying or enforcing whether an Authorized User is a bona fide Authorized User; (2) creating, distributing or enforcing login credentials; (3) controlling whether or not access to the Technology Platform is limited to Authorized Users; (4) enforcing or controlling Authorized Users’ use of the Contractor Materials; (5) limiting Authorized Users’ use of the Contractor Materials to Non-Commercial uses; (6) use of Contractor Materials by Authorized Users; (7) any other failures of, or actions by, any Authorized User in connection with this Contract, other than the willful actions of TEA or its employees; or (8) adherence to any Technology Platform user agreement provisions.

17. Intellectual Property

(a) Ownership and License to Works Components

Contractor agrees that all Works (as defined above) are intended to be and are, upon creation, works made for hire and the sole property of TEA. Contractor and its officers, directors, employees, agents, representatives and subcontractors shall have no rights therein. If the Works are, under applicable law, not considered works made for hire, Contractor hereby assigns to TEA all worldwide ownership of all rights in the Works, including, but not limited to, the Intellectual Property Rights, all works based upon, derived from or incorporating the Works, all income, royalties, damages, claims and payments now or hereafter due or payable with respect thereto, all causes of action, either in law or in equity for past, present, or future infringement based on the Intellectual Property Rights, and all rights corresponding to the foregoing. Contractor agrees to execute all papers and to perform such other actions, as TEA may deem necessary to secure for TEA or its designee the rights herein assigned, without the necessity of any further consideration, and TEA can obtain and hold in its own name all such rights to the Works. Contractor agrees to maintain written agreements with all officers, directors, employees, agents, representatives and subcontractors engaged by Contractor for the Contract Project, granting Contractor rights sufficient to support the performance and grant of rights to TEA by Contractor. Copies of such agreements shall be provided to TEA promptly upon request.

In the event that Contractor has any rights in and to the Works that cannot be assigned to TEA, Contractor hereby grants to TEA an exclusive, worldwide, royalty-free, irrevocable, and perpetual license to directly and indirectly reproduce, distribute, modify, publicly perform and publicly display the Works, prepare derivative works of the Works, and to make, have made, use, sell and offer for sale any products developed by practicing such license rights, and to otherwise use such license rights, with the right to sublicense such rights through multiple levels of sublicenses.

If any preexisting rights are embodied in the Works, Contractor grants to TEA the irrevocable, perpetual, non-exclusive, worldwide, royalty-free right and license to (a) use, execute, reproduce, display, perform, distribute copies of, and prepare derivative works based upon such preexisting rights and any derivative works thereof and (b) authorize others to do any or all of the foregoing. Contractor agrees to notify TEA on delivery of the Works if they include any such preexisting rights. On request, Contractor will provide TEA with documentation indicating a third party’s written approval for Contractor to use any preexisting rights that may be embodied or reflected in the Works.

Contractor represents and warrants that (i) it has the authority to grant the rights herein granted, (ii) it has not assigned or transferred any right, title, or interest in the Works or Intellectual Property Rights that would conflict with its obligations under the Contract, and Contractor will not enter into any such agreements, and (iii) the Works will be original and will not infringe any Intellectual Property Rights of any other person or entity. These representations and warranties will survive the termination of the Contract.

(b) License to Contractor Materials

Contractor hereby grants to TEA and Authorized Users a nonexclusive, worldwide, royalty-free, fully paid-up, irrevocable, perpetual, unlimited, assignable and transferable right and license to the Contractor Materials (except for any Contractor Materials that are a Technology Platform), and any updates, revisions, additions thereto, or derivative works thereof, to directly and indirectly: (i) use, access, execute, reproduce, copy, modify, adapt, publicly display, publicly perform, provide access

B - 8 to, distribute copies of, transmit and otherwise use and exploit; and (ii) authorize others to do any or all of the foregoing in a sublicense, subcontractor agreement, sub-grant or otherwise, for or on behalf of TEA, in order to further the purposes of TEA (collectively “Materials License”). The Materials License includes the right for TEA and Authorized Users to create derivative works of the Contractor Materials and authorize others to do so in order to further the purposes of TEA and/or Authorized Users.

The authors of such derivative works shall have and retain ownership of such derivative works.

For the avoidance of doubt, Technology Platforms are subject only to the license in Clause 16.

18. Social Security Numbers (SSNs) Withheld: TEA will not provide SSNs to any Contractor under this Contract unless specifically stated as part of the Contract Project requirements. TEA, its Contractors and their subcontractors, will not require or request school districts to provide SSNs under this Contract. Contractor agrees that in executing tasks on behalf of TEA, Contractor will not use any student-identifying information in any way that violates the provisions of FERPA and will destroy or return all student-identifying information in accordance with the terms in Clause 21 on Confidential Information, FERPA, and Information Security Requirements hereof.

19. Nondisclosure and Press Releases: Contractor shall not use TEA’s name, logo, or other likeness in any press release, marketing material, or other announcement without TEA’s prior written approval and in the event of such approval, Contractor shall comply with the TEA Trademarks License set forth below. TEA does not endorse any vendor, commodity, or service. Contractor is not authorized to make or participate in any media releases or public announcements pertaining to this procurement, the Response, the Contract, or the services to which any of the foregoing relate without TEA’s prior written consent, and then only in accordance with explicit written instructions from TEA. All information gathered, produced, derived, obtained, analyzed, controlled or accessed by Contractor in connection with this Contract shall be and remain confidential and shall not be released or disclosed by Contractor without the prior written consent of TEA, which consent must specifically identify the information, data, or materials requested and the audience for the release of information.

20. Trademark License for Contractor’s Use of TEA’s Logo and Other Trademarks

Contractor hereby acknowledges and agrees that all trademarks and service marks adopted, used, registered, and/or owned by TEA (“TEA Trademarks,” as shown in the TEA Brand Book, which is available upon request) remain the exclusive property of TEA, that all right, title and interest in and to the TEA Trademarks are exclusively held by TEA and all goodwill associated with such trademarks inures solely to TEA. TEA hereby grants to Contractor, and any approved subcontractors pursuant to Clause 10 hereof, for the Term, a limited, non-exclusive, non-assignable, non-transferable license to reproduce specific TEA Trademarks, which must be approved by the Contract Manager in each case, on published materials, in print and digital form, solely for purposes authorized under this Contract and only in furtherance of the Contract Project (“TEA Trademarks License”), provided that such TEA Trademarks License is expressly conditional upon and subject to, the following:

(a) Contractor is in compliance with all provisions of, and laws applicable to, this Contract;

(b) Contractor is in compliance with all rules, requirements, formats and depictions as set forth in the TEA Brand Book;

(c) Contractor’s use of the TEA Trademarks is strictly in accordance with the quality standards and in conformance with the reproduction requirements set forth in the TEA Brand Book or as otherwise communicated by TEA and used as directed by

TEA;

(d) Contractor takes no action to damage the goodwill associated with the TEA Trademarks, and does not directly or indirectly contest, attack, dispute, challenge, cancel and/or oppose TEA’s right, title and interest in the TEA Trademarks or their validity;

(e) Contractor makes no attempt to sublicense, assign or transfer any rights under this TEA Trademarks License;

(f) Contractor makes no use of the TEA Trademarks to advertise, market, or sell its goods or services to any third parties;

(g) Contractor complies with any marking requests TEA may make in relation to the TEA Trademarks, including without limitation to use the phrase “Registered Trademark,” the symbol “™”, and/or the registered trademark symbol “®”, as directed by TEA;

and

(h) Contractor shall provide examples of proposed usage of the TEA Trademarks for review and approval by TEA.

Contractor represents and warrants that all materials produced for and/or procured by TEA will align with the requirements and content expectations detailed in the TEA Brand Book. All materials delivered by Contractor that do not meet the requirements contained in the TEA Brand Book shall be deemed not accepted for purposes of Clause 55 (Payment) of these Standard TEA Terms and Conditions. To the extent that Contractor has any questions about content in the TEA Brand Book or TEA appearance and style guidelines, they should email Communications@tea.texas.gov.

If TEA discovers that Contractor’s uses of the TEA Trademarks are not of a high quality, as determined by TEA, TEA may give Contractor five working days’ written notice within which to change its operations to conform to TEA’s requirements. After the five working day period, should Contractor fail to meet the quality requirements of TEA, TEA, may at its sole discretion, terminate this Contract and/or Contractor’s license to use TEA Trademarks.

Contractor further agrees that it is critical that the goodwill associated with the TEA Trademarks is protected and enhanced and, toward this end, Contractor shall not during the Term or thereafter: (i) attack the title or any rights of TEA in or to the TEA Trademarks;

(ii) attack the validity of this Contract; (iii) do anything either by an act of omission or commission which might impair, violate or infringe the TEA Trademarks; (iv) claim (adversely to TEA or anyone claiming rights through TEA) any right, title or interest in or to the TEA Trademarks; (v) misuse or harm the TEA Trademarks or bring the TEA Trademarks into disrepute; (vi) for its benefit, directly or indirectly, register or apply for registration of the TEA Trademarks or any mark which is, in TEA’s reasonable opinion, the same as or confusingly similar to any of the TEA Trademarks; and/or (vii) for its benefit, directly or indirectly, register, maintain or apply for

B - 9 registration of a domain name which is, in TEA’s reasonable opinion, the same as, confusingly similar to or incorporates any of the TEA Trademarks.

21. Confidential Information, FERPA, and Information Security Requirements:

(a) TEA Confidential Information and Protected Data Contractor acknowledges and agrees that Contractor does not own any TEA Confidential Information, including any Protected Data, shall not acquire any ownership or other rights to such TEA Confidential Information as a result of performing this Contract, and has no right to use such TEA Confidential Information except as explicitly provided in this Contract for the purposes of performing this Contract Project as directed by TEA.

(b) Access to and Use of TEA Confidential Information

Contractor represents and warrants that it will take all necessary and appropriate action to safeguard TEA Confidential Information and to protect it from unauthorized disclosure. If Contractor discloses any TEA Confidential Information to a subcontractor or agent, Contractor will require the subcontractor or agent to comply with the same restrictions and obligations as are imposed on Contractor. Whenever communications with Contractor necessitate the release of TEA Confidential Information, additional TEA confidentiality forms will need to be signed by the Contractor who requires access to or may be exposed to that information. Contractor shall access TEA’s systems or TEA Confidential Information only for the purposes for which it is authorized under this Contract. Contractor shall have a policy and process in place that ensures the same level of protection of TEA Confidential Information by all employees and subcontractors who require access to or may be exposed to that information.

Contractor shall at all times cause an Authorized User’s Protected Data to be accessible solely by such Authorized User and its related or otherwise authorized persons and entities, including applicable teachers and tutors, and applicable school, school district and TEA personnel.