2-B. TERMS AND CONDITIONS.docx

TERMS AND CONDITIONS

Federal Funds: All procurements of supplies, equipment, and services utilizing Federal Funds (e.g., Federal Grant or Contract) shall be made in accordance with all applicable federal rules and regulations: Federal Acquisition Regulations (FAR) https://www.acquisition.gov

Excluded Parties List http://www.epls.gov/ (Debarred Bidders List) By signing this document vendor certifies they are not on the Debarred Bidders List.

Option to Extend. N/A

Right to Cancel. UTD shall have the right to cancel this contract with cause with 30 days notice during the initial year and without cause on a month to month basis during the renewal option years.

HUB. If this order is expected to go over $100,000 HUB Subcontracting Plan (HSP) Documents are required by law to be supplied, available at this site: http://www.window.state.tx.us/procurement/prog/hub/hub-forms/

WE MAY HAVE TO DISQUALIFY ANY BID OVER $100,000 MISSING THE HSP DOCUMENTS!

https://mycpa.cpa.state.tx.us/tpasscmblsearch/index.jsp Hub vendors listed here.

“FOB Destination” for domestic shipments, and “Incoterm DDP” for int’l shipments. Or show exact delivery cost and terms.

Best Interest of UTD. The University reserves the right to accept or reject all or any part of any RFP, waive minor technicalities and award the RFP that best serves the interests of UTD.

Brand names, Catalogs, or manufacturer's references are descriptive only, and indicate type and quality desired. RFPs on brands of like nature and quality will be considered unless advertised as SOLE SOURCE If other than brand(s) specified is offered, illustrations and complete description of product offered are requested to be made part of the RFP.

Implied Use. All parts and work shall conform in strength, quality and workmanship to the accepted industry standards for the intended and implied use of a major University. Unless otherwise specified, items offered shall be new and unused and of current date codes. Proposer represents and warrants that all products and services offered to University in response to this RFP meet or exceed the safety standards established and promulgated under the Federal Occupational Safety and Health Law (Public Law 91-596) and the Texas Hazard Communication Act, Chapter 502, Health and Safety Code, and all related regulations in effect or proposed as of the date of this RFP.

Award of Contract - A response to an RFP is an offer to contract based upon the terms, conditions and specifications contained herein. The terms and conditions contained in Attachment A will become a part of and govern any agreement that results from this RFP. Contractor will be required to perform Work in accordance with (a) the terms and conditions of Attachment A, and (b) other terms and conditions acceptable to University in all respects. Proposer should, therefore, review Attachment A carefully.

Respondents must comply with the requirements and specifications contained in this solicitation, including the Terms and Conditions (ref. Attachment A). If there is a conflict among the provisions in this solicitation, the provision requiring Respondent to supply the better quality or greater quantity of services will prevail, or if such conflict does not involve quality or quantity, then interpretation will be in the following order of precedence: 1) University Terms and Conditions, 2) University referenced solicitation including all amendments issued by University, 3) the solicitation response as accepted and awarded by University.

Respondent may offer for University's consideration alternate provisions to the Terms and Conditions. Alternates proposed must refer to the specific article(s) or section(s) concerned. General exceptions such as “company standard sales terms apply" or "will negotiate" are not acceptable.

Respondent’s exceptions will be reviewed by University and may result in disqualification of Respondent’s response as non-responsive to this solicitation. If Respondent’s exceptions do not result in disqualification of Respondent’s response, then University may consider Respondent’s exceptions when University evaluates the Respondent’s responses.

Respondent’s silence as to the terms and conditions shall be construed as an Indication of complete acceptance of these conditions as written.

The University shall not agree to any exceptions taken to the following terms and conditions for use of a proposed solution under the resulting contract:

.The contract shall be governed, construed and interpreted under the laws of the State of Texas. Proposer acknowledges and agrees that (1) this RFP is a solicitation for a proposal and is not a contract or an offer to contract; (2) the submission of a proposal by Proposer in response to this RFP will not create a contract between University and Proposer; (3) University has made no representation or warranty, written or oral, that one or more contracts with University will be awarded under this RFP; and (4) Proposer will bear, as its sole risk and responsibility, any cost arising from Proposer’s preparation of a response to this RFP.

Gifts. The Contractor 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 bid, offer, proposal or contract.

Indemnify. The Contractor shall defend, indemnify, and hold harmless UTD, all of its officers, agents and employees from and against all claims, actions, suits, demands, proceedings costs, damages, and liabilities, arising out of, connected with, or resulting from any acts or omissions of Contractor or any agent, employee, subcontractor, or supplier of Contractor in the execution or performance of this bid, offer, proposal or contract.

Former State Executive. Contractor certifies that they are in compliance with section 618.003 of the Government Code, relating to contracting with the executive head of a state agency . If section 618.003, applies, Contractor will complete the following information in order for the bid to be evaluated: * Name of Former Executive: * Name of State Agency: * Date of separation from State Agency: * Date of Employment with Contractor:

Texas Prompt Payment Act. Terms Net 30 with a maximum past due interest of 4.25% per year, unless there is a bona fide dispute per the law. https://fmx.cpa.state.tx.us/fm/usas/prompay/rate/index.php

Sales/Property Taxes. Purchases made for UTD use are exempt from the State Sales tax and Federal Excise tax. http://www.cpa.state.tx.us/m23taxes.html

Certificates of Insurance. For any Contract which requires the Contractor to provide on-site services, the Contractor shall, prior to commencement of work, provide UTD with Certificates of Insurance in the below amounts and shall maintain such coverage in effect for the full duration of the Contract.

Contractor, consistent with its status as an independent Contractor, shall carry at least the following insurance in such form, with such companies and in such amounts (unless otherwise specified) as University may require:

· Workers’ Compensation Insurance with statutory limits, and Employer’s Liability Insurance with limit of not less than One Million Dollars ($1,000,000) per accident or disease. Policies must include All States Endorsement and a waiver of all rights of subrogation and other rights against the University;

· Commercial General Liability insurance, including Blanket Contractual Liability, Broad Form Property Damage, Personal and Advertising Injury, Completed Operations/Products Liability, Medical Expenses, Interest of Employees as additional insured and Broad Form General Liability Endorsements, for at least One Million Dollars ($1,000,000) per occurrence on an occurrence basis; and

· Comprehensive Automobile Liability insurance covering all owned, non owned or hired automobiles to be used by Contractor, with coverage for at least One Million Dollars ($1,000,000) Combined Single Limit Bodily Injury and Property Damage.

Construction Bonds: http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2253.htm#2253.021 GOVERNMENT CODE CHAPTER 2253. PUBLIC WORK PERFORMANCE AND PAYMENT BONDS

(4) "Public work contract" means a contract for constructing, altering, or repairing a public building or carrying out or completing any public work. § 2253.021. PERFORMANCE AND PAYMENT BONDS REQUIRED. (a) A governmental entity that makes a public work contract with a prime contractor shall require the contractor, before beginning the work, to execute to the governmental entity: (1) a performance bond if the contract is in excess of $100,000; and (2) a payment bond if the contract is in excess of $25,000.

UT Dallas Design Guidelines & Construction Standards http://www.utdallas.edu/facilities/ut-dallas-design-guidelines-construction-standards/

2013 Uniform General and Supplementary General Conditions

· For use on all UT System and Institutional Construction Projects with a value ≥$100,000 http://www.utsystem.edu/ogc/docs/constlaw/UGC-SGC.pdf

Representations and Warranties by Contractor. If Contractor is a corporation or a limited liability company, Contractor warrants, represents, covenants, and agrees that it is duly organized, validly existing and in good standing under the laws of the state of its incorporation or organization and is duly authorized and in good standing to conduct business in the State of Texas, that it has all necessary power and has received all necessary approvals to execute and deliver the Agreement, and the individual executing the Agreement on behalf of Contractor has been duly authorized to act for and bind Contractor.

Tax Certification. If Contractor is a taxable entity as defined by Chapter 171, Texas Tax Code (“Chapter 171”), then Contractor certifies that it is not currently delinquent in the payment of any taxes due under Chapter 171, or that Contractor is exempt from the payment of those taxes, or that Contractor is an out-of-state taxable entity that is not subject to those taxes, whichever is applicable. http://www.statutes.legis.state.tx.us/Docs/TX/htm/TX.171.htm Eligibility Certification. Pursuant to Section 2155.004, Texas Government Code, A state agency may not accept a bid or award a contract that includes proposed financial participation by a person who received compensation from the agency to participate in preparing the specifications or request for proposals on which the bid or contract is based.. http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2155.htm#2155.004 Payment of Debt or Delinquency to the State. Pursuant to Sections 2107.008 and 2252.903, Texas Government Code, Contractor agrees that any payments owing to Contractor under the Agreement may be applied directly toward any debt or delinquency that Contractor owes the State of Texas or any agency of the State of Texas regardless of when it arises, until such debt or delinquency is paid in full. http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2107.htm#2107.008 http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2252.htm#2252.903 Texas Family Code Child Support Certification. A child support obligor who is more than 30 days delinquent in paying child support and a business entity in which the obligor is a sole proprietor, partner, shareholder, or owner with an ownership interest of at least 25 percent is not eligible to receive payments from state funds http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.231.htm#231.006 Access by Individuals with Disabilities. UTS150 – Access by Persons with Disabilities to Electronic and Information Resources Procured by The University of Texas System Administration and The University Of Texas System Institutions http://www.utsystem.edu/board-of-regents/policylibrary/policies/uts150-access-persons-disabilities

Notices. Except as otherwise provided in this Section, all notices, consents, approvals, demands, requests or other communications provided for or permitted to be given under any of the provisions of the Agreement will be in writing.

Venue; Governing Law. Dallas County, Texas, will be the proper place of venue for suit on or in respect of the Agreement. The Agreement and all of the rights and obligations of the parties hereto and all of the terms and conditions hereof will be construed, interpreted and applied in accordance with and governed by and enforced under the laws of the State of Texas.

Breach of Contract Claims. To the extent that Chapter 2260, Texas Government Code, is applicable to the Agreement and is not preempted by other applicable law, the dispute resolution process provided for in Chapter 2260 and the related rules adopted by the Texas Attorney General pursuant to Chapter 2260, will be used by University and Contractor to attempt to resolve any claim for breach of contract made by Contractor that cannot be resolved in the ordinary course of business. http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2260.htm#2260.001

Entire Agreement; Modifications. The Agreement supersedes all prior agreements, written or oral, between Contractor and University and will constitute the entire Agreement and understanding between the parties with respect to the subject matter hereof. The Agreement and each of its provisions will be binding upon the parties and may not be waived, modified, amended or altered except by a writing signed by University and Contractor.

Loss of Funding. Performance by University under the Agreement may be dependent upon the appropriation and allotment of funds by the Texas State Legislature (the "Legislature") and/or allocation of funds by the Board of Regents of The University of Texas System (the "Board"). If the Legislature fails to appropriate or allot the necessary funds, or the Board fails to allocate the necessary funds, then University will issue written notice to Contractor and University may terminate the Agreement without further duty or obligation hereunder. Contractor acknowledges that appropriation, allotment, and allocation of funds are beyond the control of University. http://www.utsystem.edu/board-of-regents/rules/20501-accounting-operating-budgets-and-legislativeappropriation-requests

State Auditor’s Office. Contractor understands that acceptance of funds under the Agreement constitutes acceptance of the authority of the Texas State Auditor's Office, or any successor agency (collectively, “Auditor”), to conduct an audit or investigation in connection with those funds pursuant to Sections 51.9335(c), 73.115(c) and 74.008(c), Texas Education Code. Contractor agrees to cooperate with the Auditor in the conduct of the audit or investigation, including without limitation providing all records requested. Contractor will include this provision in all contracts with permitted subcontractors. http://www.statutes.legis.state.tx.us/Docs/ED/htm/ED.51.htm#51.9335

SAFEGUARDING OF Confidential Data: If the item(s) or service(s) specified on this order require Vendor access to Confidential Data (e.g., social security numbers, credit card numbers, FERPA protected data, HIPAA protected data), Vendor agrees it may (1) create, (2) receive from or on behalf of UTD, or (3) have access to records or systems containing Confidential Data. Vendor represents, warrants and agrees it will: (1) hold information in the strictest confidence and will not use or disclose information except as

(a) permitted or required by this order, (b) required by law, or (c) otherwise authorized by UTD in writing; (2) safeguard information according to commercially reasonable administrative, physical and technical standards (e.g., National Institute of Standards and Technology, Center for Internet Security, Gramm-Leach Bliley Act) ; and (3) continually monitor its operations and take any action necessary to assure the information is safeguarded in accordance with the terms of this order. Vendor represents warrants and agrees that it complies with University Vendor Access Requirement http://www.utsystem.edu/board-of-regents/policy-library/policies/uts165-information-resources-use-andsecurity-policy . At the request of UTD, Vendor agrees to provide UTD a written summary of the procedures the Vendor uses to safeguard this information. If an impermissible use or disclosure of any of the information occurs, Vendor will provide written notice to UTD within one (1) business day after Vendor’s discovery of use or disclosure. Vendor will promptly provide UTD all information requested by UTD regarding the impermissible use or disclosure. In addition to any other termination rights set forth in this order and any other rights at law or equity, if UTD reasonably determines that the Vendor has breached any restrictions or obligations set forth in this section, UTD may immediately cancel this order without notice or offer to cure.

Ethics Matters; No Financial Interest. Contractor and its employees, agents, representatives and subcontractors have read and understand University’s Conflicts of Interest Policy, University’s Standards of Conduct Guide, and applicable state ethics laws and rules available at www.utsystem.edu/ogc/ethics. Neither Contractor nor its employees, agents, representatives or subcontractors will assist or cause University employees to violate University’s Conflicts of Interest Policy, provisions described by University’s Standards of Conduct Guide, or applicable state ethics laws or rules. Contractor represents and warrants that no member of the Board has a direct or indirect financial interest in the transaction that is the subject of the Agreement. http://policy.utdallas.edu/utdpp1091 www.utsystem.edu/ogc/ethics

Antitrust laws. Proposer hereby certifies that neither Proposer nor any firm, corporation, partnership or institution represented by Proposer, or anyone acting for such firm, corporation or institution, has violated the antitrust laws of the State of Texas, codified in Section 15.01, et seq., Business and

Commerce Code, or the Federal antitrust laws, nor communicated directly or indirectly the proposal made to any competitor or any other person engaged in such line of business.

Compensation for Specifications. The vendor has not received compensation for the participation in the preparation of the specifications for this bid, offer, proposal or contract.

Public Information Act. Information, documentation, and other material in connection with this solicitation or any resulting contract may be subject to public disclosure pursuant to Chapter 552 of the Texas Government Code (the "Public Information Act"). Proposer is hereby notified that University strictly adheres to all statutes, court decisions and the opinions of the Texas Attorney General with respect to disclosure of public information. University may seek to protect from disclosure all information submitted in response to this RFP until such time as a final agreement is executed. Upon execution of a final agreement, University will consider all information, documentation, and other materials requested to be submitted in response to this RFP, to be of a nonconfidential and non-proprietary nature and, therefore, subject to public disclosure under the Texas Public Information Act (Texas Government Code, Chapter 552.001, et seq.). Proposer will be advised of a request for public information that implicates their materials and will have the opportunity to raise any objections to disclosure to the Texas Attorney General. Certain information may be protected from release under Sections 552.101, 552.110, 552.113, and 552.131, Texas Government Code http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.552.htm

Non-Disclosure. Contractor and UTD acknowledge that they or their employees may, in the performance of the resultant Contract, come into the possession of proprietary or confidential information owned by or in the possession of the other. Neither party shall use any such information for its own benefit or make such information available to any person, firm, corporation, or other organization, regardless of whether directly or indirectly affiliated with Contractor or UTD, unless (i) required by law, (ii) by order of any court or tribunal, (iii) such disclosure is necessary for the assertion of a right, or defense of an assertion of a right, by one party against the other party hereto, or (iv) such information has been acquired from other sources.

Publicity. Contractor agrees that it shall not publicize this Contract or disclose, confirm or deny any details thereof to third parties or use any photographs or video recordings of UTD’s employees or use UTD’s name in connection with any sales promotion or publicity event without the prior express written approval of UTD.

Freedom of Access and Use of Facilities. Contractor's employees shall have reasonable and free access to use only those facilities of UTD that are necessary to perform services under this Contract and shall have no right of access to any other facilities of UTD.

Observance of UTD Rules and Regulations. Contractor agrees that at all times its employees will observe and comply with all regulations of the facilities, including but not limited to, no smoking, and parking and security regulations.

Contractor Personnel. Contractor shall maintain a staff of properly trained and experienced personnel to ensure satisfactory performance under the Contract. Contractor shall assign a designated representative who will be responsible for the coordination and administration of UTD's requirements under the Contract.

Criminal Background Checks: We require all contractors to do criminal back ground checks on all your employees and sub-contractors. We have zero tolerance for any un-professional or un-safe or harassment issues.

Proposal Evaluation Process University will select the Contractor by using the competitive sealed proposal process described in this Section. After the opening of the proposals and upon completion of the initial review and evaluation of the proposals, University may invite one or more selected Proposers to participate in oral presentations. University will use commercially reasonable efforts to avoid public disclosure of the contents of a proposal prior to selection of the Contractor.

University may make the selection of the Contractor on the basis of the proposals initially submitted, without discussion, clarification or modification. In the alternative, University may make the selection of the Contractor on the basis of negotiation with any of the Proposers. In conducting such negotiations, University will avoid disclosing the contents of competing proposals.

At University's sole option and discretion, University may discuss and negotiate all elements of the proposals submitted by selected Proposers within a specified competitive range. For purposes of negotiation, University may establish, after an initial review of the proposals, a competitive range of acceptable or potentially acceptable proposals composed of the highest rated proposal(s). In that event, University will defer further action on proposals not included within the competitive range pending the selection of the Contractor; provided, however, University reserves the right to include additional proposals in the competitive range if deemed to be in the best interests of University.

After submission of a proposal but before final selection of the Contractor is made, University may permit a Proposer to revise its proposal in order to obtain the Proposer's best and final offer. In that event, representations made by Proposer in its revised proposal, including price and fee quotes, will be binding on Proposer. University will provide each Proposer within the competitive range with an equal opportunity for discussion and revision of its proposal. University is not obligated to select the Proposer offering the most attractive economic terms if that Proposer is not the most advantageous to University overall, as determined by University.

University reserves the right to (a) enter into an agreement for all or any portion of the requirements and specifications set forth in this RFP with one or more Proposers, (b) reject any and all proposals and resolicit proposals, or (c) reject any and all proposals and temporarily or permanently abandon this selection process, if deemed to be in the best interests of University. Proposer is hereby notified that University will maintain in its files concerning this RFP a written record of the basis upon which a selection, if any, is made by University.

Proposer's Acceptance of Evaluation Methodology. By submitting a proposal, Proposer acknowledges (1) Proposer's acceptance of [a] the Proposal Evaluation Process, [b] the Criteria for Selection, [c] the Specifications and Additional Questions, [d] the terms and conditions of the Agreement, and [e] all other requirements and specifications set forth in this RFP; and (2) Proposer's recognition that some subjective judgments must be made by University during this RFP process.

Solicitation for Proposal and Proposal Preparation Costs. Proposer understands and agrees that (1) this RFP is a solicitation for proposals and University has made no representation written or oral that one or more agreements with University will be awarded under this RFP; (2) University issues this RFP predicated on University’s anticipated requirements for the Services, and University has made no representation, written or oral, that any particular scope of services will actually be required by University; and (3) Proposer will bear, as its sole risk and responsibility, any cost that arises from Proposer’s preparation of a proposal in response to this RFP.

Approach to Project Services Proposer will provide a statement of the Proposer’s service approach and will describe any unique benefits to University from doing business with Proposer. Proposer will briefly describe its approach for each of the required products and services of this RFP.

Piggybacking. Texas law authorizes institutions of higher education (defined by Section 61.003, Education Code) to use the group purchasing procurement method (ref. Sections 51.9335, 73.115, and 74.008, Education Code).

Additional Texas institutions of higher education may therefore elect to enter into a contract with the successful Proposer under this RFP. In particular, Proposer should note that University is part of The University of Texas System (UT System), which is comprised of fourteen institutions described at http://www.utsystem.edu/institutions. UT System institutions routinely evaluate whether a contract resulting from a procurement conducted by one of the institutions might be suitable for use by another, and if so, this could give rise to additional purchase volumes. As a result, in submitting its proposal, Proposer should consider proposing a pricing model and other commercial terms that take into account the higher volumes and other expanded opportunities that could result from the eventual inclusion of other institutions in the purchase contemplated by this RFP. Any purchases made by other institutions based on this RFP will be the sole responsibility of those institutions.

Academic Environment. Contractor must be aware the work described in the solicitation will be performed at an academic institution. The progress of work will be occasionally impacted by the demands of an academic calendar such as exam schedules, campus events, housing moves, etc. The project schedule and cost must be reflective of these impacts without the need for an adjustment to the contract price.

Limitations. THE PARTIES ARE AWARE THAT THERE ARE CONSTITUTIONAL AND STATUTORY LIMITATIONS ON THE AUTHORITY OF UNIVERSITY (A STATE AGENCY) TO ENTER INTO CERTAIN TERMS AND CONDITIONS OF THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THOSE TERMS AND CONDITIONS RELATING TO LIENS ON UNIVERSITY’S PROPERTY;

DISCLAIMERS AND LIMITATIONS OF WARRANTIES; DISCLAIMERS AND LIMITATIONS OF LIABILITY FOR DAMAGES; WAIVERS, DISCLAIMERS AND LIMITATIONS OF LEGAL RIGHTS, REMEDIES, REQUIREMENTS AND PROCESSES; LIMITATIONS OF PERIODS TO BRING LEGAL ACTION; GRANTING CONTROL OF LITIGATION OR SETTLEMENT TO ANOTHER PARTY; LIABILITY FOR ACTS OR OMISSIONS OF THIRD PARTIES; PAYMENT OF ATTORNEYS’ FEES; DISPUTE RESOLUTION; INDEMNITIES; AND CONFIDENTIALITY (COLLECTIVELY, THE “LIMITATIONS”), AND TERMS AND CONDITIONS RELATED TO THE LIMITATIONS WILL NOT BE BINDING ON UNIVERSITY EXCEPT TO THE EXTENT AUTHORIZED BY THE LAWS AND CONSTITUTION OF THE STATE OF TEXAS. http://www.statutes.legis.state.tx.us/

Who can sign contracts http://www.utsystem.edu/ogc/docs/delegation/utd.pdf UT Board of Regents rules on Procurement http://www.utsystem.edu/board-of-regents/rules/20901procurement-certain-goods-and-services Statutes and rules of Texas related to expenditures https://fmx.cpa.state.tx.us/fm/pubs/purchase/index.php State Law for University Purchasing http://www.statutes.legis.state.tx.us/Docs/ED/htm/ED.51.htm#51.9335 Board of Regents Policy Library http://www.utsystem.edu/board-of-regents/policy-library Board of Regents Rules http://www.utsystem.edu/board-of-regents/rules UT Office of General Counsel http://www.utsystem.edu/ogc/

I read and agree to the above Terms and Conditions

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