2-Attachment 1 - Terms and Conditions.pdf

Attachment 1 – OAG Terms and Conditions

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, all to the extent applicable to the particular solicitation, Contract, or Purchase Order at issue. Vendor understands and acknowledges that providing a false statement, or material misrepresentations made during the performance of the solicitation or resulting Contract or Purchase Order, is a material breach of the 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 Vendor’s documents, is shown to be false, then Vendor understands and acknowledges the Contract may be terminated, payment withheld, and 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. Throughout these Terms and Conditions, the terms Vendor and Contractor will both be used and will have the same meaning.

1. Vendor Eligibility

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

1.2. Financial Participation Prohibited: Texas Government Code § 2155.004 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 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 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. 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.

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 the Contract and has acquired all applicable licenses, certifications, and permits.

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. If Vendor or Officers have been the subject of allegations of Deceptive Trade Practices violations under Chapter 17 of the Texas Business and Commerce Code, Vendor will disclose any such allegations to Agency.

1.9. 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 the Vendor, a competitor of the Vendor or any other company, firm, corporation, partnership, individual, or related entities of the same engaged in the same line of business as the Vendor.

2. Financial Regulations

2.1. Child Support: Under § 231.006, Texas 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 certification 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 a 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 certifies that it 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.

2.4. Insurance: To the extent applicable, Contractor shall provide Agency with current certificates of insurance or other proof acceptable to Agency of the following insurance coverage:

• Standard Workers Compensation Insurance covering all personnel who will provide services under the Contract;

• Commercial General Liability Insurance, personal injury and advertising injury with, at a minimum, the following limits:

$1,000,000 minimum each occurrence; $2,000,000 per general aggregate.

All of the above coverage shall be with companies licensed in the state of Texas with “A” rating from the A.M. Best Company and authorized to provide the corresponding coverage. Contractor represents and warrants that it shall maintain the above insurance coverage during the term of the Contract and shall provide Agency with an executed copy of the policies immediately upon request. To the extent not specified in this section, Contractor shall acquire and maintain, for the duration of the Contract, insurance coverage necessary to ensure proper fulfillment of the Contract and potential liabilities thereunder with financially sound and reputable insurers in the type and amount customarily carried within the industry. Contractor shall provide evidence of insurance as required under this paragraph, upon request by the Agency. In the event that any policy is determined by the Agency to be deficient to comply with the terms of the Contract, Contractor shall secure such additional policies or coverage as the Agency may reasonably request or that are required by law or regulation. If coverage expires during the term of the Contract, Contractor must produce renewal certificates for each type of coverage.

2.5. Tax Waiver: Per § 151.309 of the Texas Tax Code, purchases made for Agency use are exempt from the State sales tax and federal excise tax. Agency shall not be liable for the payment of any sales, use, or other taxes incurred by Contractor in acquiring any goods or services as a part of any work called for in the Contract. Agency Tax Exemption Certifications are available upon request.

2.6. Recapture of Funds and Refund: The Agency may withhold all or part of any payments to Contractor to offset overpayments made to the Contractor. Overpayments include but are not limited to payments (i) made that exceed the maximum allowable rates; (ii) that are not allowed under applicable laws, rules, or regulations; (iii) that are otherwise inconsistent with the Contract, including without limitation any unapproved expenditures; (iv) that were paid for a deliverable for which latent defects have been discovered; or (v) that were based on fraudulent or inaccurate invoices. Vendor will promptly refund or credit within thirty (30) calendar days any funds erroneously paid by Agency which are not expressly authorized under the Contract.

2.7. Prompt Payment: Payment shall be made in accordance with Chapter 2251 of the Texas Government Code, commonly known as the Texas Prompt Payment Act. Chapter 2251 of the Texas Government Code shall govern remittance of payment and remedies for late payment and non-payment.

2.8. Termination for Non-Appropriation (Funding Out/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, and Vendor further acknowledges and agrees that nothing in the Contract will be interpreted to create a future obligation or liability in excess of the funds currently available or appropriated to the Agency during the current fiscal biennium or any future fiscal biennium of the State of Texas in which the Contract is in place.

3. State and Agency Laws, Rules and Regulations

3.1. 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.

3.2. 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 Vendor to perform work pursuant to the Contract within the United States of America.

3.3. Executive Head of a State Agency: Pursuant to § 669.003, Texas 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 (4) 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 : ____________________________

3.4. Former Agency Employees: To the extent applicable, pursuant to § 2252.901, 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 (1) 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.

3.5. Disclosure of Prior State Employment: To the extent applicable, pursuant to § 2254.033 of the Texas Government Code, relating to consulting services, Vendor certifies that either (a) it does not employ an individual who has been employed by Agency or another agency at any time during the two (2) years preceding the submission of the Response, or (b) Vendor has disclosed in its Response the following: (i) the nature of the previous employment with Agency or the other agency; (ii) the date the employment was terminated; and (iii) the annual rate of compensation for the employment at the time of its termination.

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 the Contract, if any, and that Vendor’s provision of the requested items under the solicitation and the Contract, if any, would not reasonably create an appearance of impropriety.

3.7. Buy Texas Affirmation: In accordance with § 2155.4441, 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 Texas.

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. Where 13 TAC § 6.94(a)(9) is not applicable, Agency reserves the right to require Vendor to provide business continuity and disaster recovery plans, or descriptions thereof, upon Agency's request.

4. Information Management

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 pursuant to Vendor’s Response, Vendor 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 Texas 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. Vendor will also be subject to other provisions of Chapter 552 of the Texas Government Code (the “Public Information Act”) by virtue of contracting with the Agency as noted elsewhere in the Contract.

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 Vendor’s Response and will maintain records and make them available to Agency as evidence of Vendor ’s compliance with the required controls.

4.5. Artificial Intelligence Disclosure: Unless otherwise addressed and defined in the Contract, the following shall govern the use of artificial intelligence: Vendor certifies that it will not use an artificial intelligence system(s) to perform the Contract without the prior written consent of the Agency. For the purposes of the Contract “artificial intelligence system” means a machine-based system that for explicit or implicit objectives infers from provided information a method to generate outputs, such as predictions, content, recommendations, or decisions, to influence a physical or virtual environment with varying levels of autonomy and adaptiveness after deployment.

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 § 2275.0102, 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 § 2275.0103, 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 § 2276.002 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 § 2274.002 of the Texas Government Code, 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 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 its 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.

5.9. Does not engage in Invidious Discrimination; No Quotas: Vendor certifies it does not, and will not for the duration of this Contract, invidiously or illegally discriminate on the basis of race, sex, or religious belief. Vendor further certifies it will not institute any quota system based on race or sex as a basis for assigning work or making staffing decisions, whether such assignments or staffing decisions are related to this Contract and notwithstanding that such assignments or staffing decisions may be made at the request of another client.

5.10. Hardening of State Government: Vendor certifies that neither it, nor its holding companies or subsidiaries, is:

a) Listed in Section 889 of the 2019 National Defense Authorization Act;

b) Listed in Section 1260H of the 2021 National Defense Authorization Act; or

c) Owned by the government of a country on the U.S. Department of Commerce’s foreign adversaries list under

15 C.F.R. Section 791.4; or

d) Controlled by any governing or regulatory body located in a country on the U.S. Department of Commerce’s foreign adversaries list under 15 C.F.R. Section 791.4.

5.11. Surveillance, Intimidation, and Related Acts: Vendor certifies that it (and its subcontractors) have not, and if awarded a contract, will not, either directly or indirectly through a third party, engage in surveillance targeting or engage in an act of intimidation, coercion, extortion, undue influence, or other similar conduct intended to influence, silence, or retaliate against:

a) a member of the state legislature or person employed to support the state legislature in any capacity;

b) a family member of a person described by (a);

c) a state agency employee; or

d) an individual making a complaint or raising concerns regarding state agency operations or contracting.

Vendor certifies that it and its subcontractors have not, and if awarded a contract will not, either directly or indirectly through a third party, use private or confidential information to manipulate or influence a state contracting decision or proceeding.

Vendor acknowledges that it, its executives and directors, and other associated entities and individuals could be terminated, barred from state contracts, and penalized up to $2 million for a violation of Texas Government Code § 2261.302.

6. Document Execution and Construction

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 Response, 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 Response.

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.

6.4. Amendment Procedure: Unless terminated earlier pursuant to the terms of this solicitation, the Contract may be amended only upon written agreement between Agency and Contractor.

6.5. Entire Agreement: The Contract, its attachments, exhibits, forms, and other supporting documents constitute the entire agreement between Agency and the Contractor. No statement, promise, condition, understanding, inducement, or representation, oral or written, expressed or implied, which is not contained in the Contract and its supporting documents shall be binding or valid.

6.6. Venue and Choice of Law: The Contract shall be governed by and construed in accordance with the laws of the State of Texas.

The venue of any suit arising under the Contract is fixed in any court of competent jurisdiction of Travis County, Texas.

6.7. Assignment: Vendor shall not assign its rights under the Contract or delegate the performance of its duties under the Contract without prior written approval from the Agency. Any attempted assignment in violation of this Section is void and without effect.

6.8. Severability: If any term or provision of the Contract is found to be illegal or unenforceable, such construction shall not affect the legality or validity of any of its other provisions. It is the intent and agreement of the Vendor and Agency that the Contract be deemed amended by modifying such provision to the extent necessary to render it valid, legal and enforceable while preserving its original intent or, if such modification is not possible, by substituting another provision that is valid, legal and enforceable and that achieves the same objective. All other provisions of the Contract will continue in full force and effect.

6.9. Sovereign Immunity; No Implied Waiver: No terms or provisions of the Contract, nor the Contract’s execution by Agency or any other conduct of any Agency employee, agent, or representative, shall be construed as, or deemed to be, a waiver of the sovereign immunity of Agency, the State of Texas, or any of its other agencies. The Contract shall not constitute or be construed as a waiver of any of the privileges, rights, defenses, remedies, or immunities available to the State of Texas. Agency does not waive any privileges, rights, defenses, or immunities by entering into the Contract or by its conduct prior or subsequent to entering into the Contract. The failure to enforce, or any delay in the enforcement, of any privileges, rights, defenses, remedies, or immunities available to the State of Texas under the Contract or otherwise available to Agency by law shall not constitute a waiver of such privileges, rights, defenses, remedies, or immunities or be considered as a basis for estoppel.

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, OTHER

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, ITS CONTRACTORS OR

SUBCONTRACTORS, ORDER FULFILLERS, AND/OR SUPPLIERS, 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 OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, OTHER 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 OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, OTHER 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.

7.3. Limitation of Liability: FOR ANY CLAIM OR CAUSE OF ACTION ARISING UNDER, IN CONNECTION WITH, OR RELATED TO THE CONTRACT, IN NO EVENT SHALL THE AGENCY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF REVENUE, LOSS OF PROFITS AND/OR FAILURE TO REALIZE BENEFITS, REGARDLESS

OF WHETHER EITHER OR BOTH PARTIES HAVE BEEN OR SUBSEQUENTLY ARE ADVISED OF THE

POSSIBILITY OF SUCH DAMAGES. LIMITATIONS OF LIABILITY DO NOT APPLY TO CONTRACTOR’S INDEMNIFICATION OBLIGATIONS TO AGENCY HEREUNDER AND ANY VIOLATIONS OF STATE OR FEDERAL

LAW BY CONTRACTOR.

8. Termination, Survival and Dispute Resolution

8.1. Termination for Convenience: Agency reserves the right to terminate the Contract at any time, in whole or in part, without penalty, by providing thirty (30) calendar days advance written notice to the Contractor, if Agency determines that such termination is in its best interest or the best interest of the State of Texas. In the event of such a notice of termination, Contractor shall, unless otherwise mutually agreed upon in writing, cease all work immediately. Agency shall be liable for payments limited only to the portion of work Agency authorized in writing and which the Contractor has completed, delivered to Agency per the Contract requirements, and which has been accepted by Agency as of the date of termination. Agency shall have no other liability or obligation to Contractor, including, without limitation, no liability for any costs of any kind associated with the termination.

8.2. Termination for Cause: If the Contractor fails to provide the contracted for work, deliverables and/or services according to the provisions of the Contract, or fails to comply with any of the terms or conditions of the Contract, Agency may, upon written notice of default to Contractor, immediately terminate all or any part of the Contract. Termination is not an exclusive remedy but shall be in addition to any other rights and remedies provided in equity, by law or under the Contract. The Contractor shall be liable for all costs and expenses, including court costs and attorney’s fees, incurred by Agency with respect to the enforcement of any of the remedies listed herein. In addition, Contractor’s misrepresentation and/or material omission with respect to any aspect of Contractor’s communications during the procurement process, if any, shall constitute a material breach of the Contract.

8.3. Rights upon Termination or Expiration: In the event that the Contract is terminated for any reason, or upon its expiration, the Agency shall retain ownership of all associated Work Product and Intellectual Property Rights (as defined below) obtained from Contractor. Upon the request of Agency, but in any event upon termination or expiration of the Contract, Contractor shall surrender to Agency all documents, materials and things pertaining to the Work Product, including but not limited to drafts, memoranda, notes, records, drawings, manuals, computer software, reports, data, and all other documents or materials (and copies of same) generated or developed by Contractor or furnished by Agency to Contractor, including any Agency confidential information and data, regardless of whether complete or incomplete, and all versions thereof.

8.4. Termination Not Exclusive Remedy; Survival: Termination is not an exclusive remedy but is in addition to any other rights and remedies provided in equity, by law, or under the Contract. Termination of the Contract for any reason, or expiration of the Contract shall not release the Vendor from any liability or obligation set forth in the Contract that is expressly stated to survive any such termination or expiration, or by its nature would be intended to be applicable following any such termination or expiration.

8.5. 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 that cannot be resolved in the ordinary course of business between the Vendor and the Agency.

9. Record Retention, Public Information and Audit

9.1. Public Information Act: Information, documentation, and other material in connection with the Contract may be subject to public disclosure pursuant to Chapter 552 of the Texas Government Code (the “Public Information Act”). In accordance with § 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.

9.2. Records Retention; Audit by Agency: Contractor shall maintain and retain supporting fiscal and any other documents relevant to showing that any payments under the Contract were expended in accordance with the laws and regulations of the State of Texas, including but not limited to, requirements of the Comptroller of the State of Texas and the State Auditor. Contractor shall maintain all such documents, Work Product related records and other supporting documents and records relating to the Contract and the State’s property for a period of seven (7) years after the date of submission of the final invoices or seven (7) years after resolution of all billing questions, whichever is later, for purposes of inspecting, monitoring, auditing, or evaluating by Agency and any authorized agency of the State of Texas, including an investigation or audit by the State Auditor. Contractor shall make available at reasonable times and upon reasonable notice, and for reasonable periods, all documents and other information related to the Work Product for Agency’s purposes of inspecting, monitoring, evaluating and registering to protect any applicable intellectual property rights.

9.3. State Auditor: The State Auditor may conduct an audit or investigation of any entity receiving funds from the State of Texas 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.

Contractor and any subcontractors shall cooperate with and provide the State Auditor with any information that the State Auditor deems relevant to any investigation or audit.

10. Additional Terms and Conditions and Definitions

10.1. Intellectual Property Related Definitions (To be applied wherever those terms are used in the solicitation, Contract, or Purchase

Order at issue):

10.1.1. “Work Product” means any and all deliverables produced by Contractor for Agency under the Contract, including any and all tangible or intangible items or things that have been or will be prepared, created, developed, invented or conceived at any time following the effective date of the Contract, including but not limited to any (i) works of authorship (including without limitation manuals, instructions, printed material, graphics, artwork, images, illustrations, photographs, computer programs, computer software, scripts, applications, object code, source code or other programming code, HTML code, flow charts, notes, plans, blueprints, reports, outlines, lists, compilations, manuscripts, writings, pictorial materials, schematics, formulae, processes, algorithms, data, derivations of data, information, photographs, videos, artwork, images, multimedia files, text web pages or web sites, other written or machine readable expression of such works fixed in any tangible media, and all other copyrightable works), (ii) trademarks, service marks, trade dress, trade names, logos, branding schemes, or other indicia of source or origin, (iii) ideas, designs, schemes, concepts, personality rights, methods, processes, techniques, apparatuses, inventions, formulas, discoveries, or improvements, including any patents, trade secrets and know-how, (iv) domain names, (v) any copies, portions, versions, and similar or derivative works to any of the foregoing, (vi) all documentation, instruction and materials related to any of the foregoing, (vii) all other goods, services or deliverables to be provided to Agency under the Contract, a Purchase Requisition, Purchase Order, or a statement of work, and (viii) all Intellectual Property Rights in any of the foregoing, and which are or were created, prepared, developed, invented or conceived for the use or benefit of Agency either (1) in connection with the Contract, a Purchase Requisition, Purchase Order, or a statement of work, or (2) with funds appropriated by or for Agency or Agency’s benefit by: (a) any Contractor personnel or Agency personnel, or combination of personnel, or (b) any Agency personnel who then became personnel of Contractor or any of its affiliates or subcontractors, where, although creation or reduction-to-practice is completed while the person is affiliated with Contractor or its affiliates or subcontractors, any portion of same was created, invented or conceived by such person while affiliated with Agency.

10.1.2. “Intellectual Property Rights” means the worldwide legal rights and/or interests evidenced by, or embedded or embodied in: (i) any idea, design, concept, personality right, 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, branding scheme, or other indicia of source or origin; (iv) domain name registrations and/or reservations of unique addresses on the Internet; and (v) any other proprietary, intangible or similar rights. The Intellectual Property Rights of a party include all worldwide legal rights and/or interests that the party may have acquired by assignment, transfer or license with the right to grant sublicenses, or otherwise by operation of law.

10.1.3. “Third Party IP” means the Intellectual Property Rights of any third party that is not a party to the Contract, and that is not directly or indirectly providing any goods or services to Agency under the Contract.

10.1.4. “Vendor IP” shall mean all tangible or intangible items or things, including the Intellectual Property Rights therein, created or developed by Contractor (a) prior to providing any services or Work Product to Agency and prior to receiving any documents, materials, information or funding from or on behalf of Agency relating to the services or Work Product, or (b) after the Effective Date of the Contract if such tangible or intangible items or things were independently developed by Contractor outside Contractor’s provision of services or Work Product for Agency hereunder and were not created, prepared, developed, invented or conceived by any Agency personnel who then became personnel of Contractor or any of its affiliates or subcontractors, where, although creation or reduction-to-practice is completed while the person is affiliated with Contractor or its affiliates or subcontractors, any portion of same was created, invented or conceived by such person while affiliated with Agency.

10.2. Independent Contractor; Subcontractors: Contractor and/or all Contractor’s employees, representatives, agents and any subcontractors shall serve as independent contractors in providing goods and/or services hereunder, and shall not be deemed employees of Agency for any purpose by virtue of the Contract. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. Contractor shall be responsible for all employment rights and benefits of Contractor’s employees. If Contractor subcontracts any of the services required in the Contract, Contractor shall hold harmless Agency and the State of Texas from any claim under such subcontract(s), and Contractor expressly understands and acknowledges that in entering into such subcontract(s), Agency 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 rendered under all subcontracts are rendered in compliance with the Contract.

10.3. Force Majeure: The Agency shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the Agency. The Contractor shall not be liable to Agency for non-performance or delay in performance of a requirement under the Contract if such non-performance or delay is due to one of the following occurrences, which occurrence must not be preventable through the exercise of reasonable diligence, be beyond the control of the Contractor, cannot be circumvented through the use of alternate sources, work-around plans, or other means and occur without its fault or negligence:

fire; earthquake; weather damage (including, flood; lightning strike; tornado; hurricane; snow or ice storms); irreparable critical equipment break down; acts of war, terrorism, riots, or civil disorder; epidemics or pandemics; strikes and disruption or outage of communications, power, or other utility. In the event of an occurrence under this section, the Contractor shall be excused from any further performance or observance of the requirements so affected for as long as such circumstances prevail, and the Contractor continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay. The Contractor shall immediately notify the Agency Contract Manager by telephone (to be confirmed in writing within five (5) calendar days of the inception of such occurrence) and describe at a reasonable level of detail the circumstances causing the non-performance or delay in performance.

10.4. Time is of the Essence: Time is of the essence in the performance of the Contract. Contractor shall strictly comply with all of the deadlines and requirements for the Contract.