2-UCA Standard Terms and Conditions.docx

Exhibit A

UTAH COMMUNICATIONS AUTHORITY’S STANDARD TERMS AND CONDITIONS FOR GOODS AND SERVICES

1. DEFINITIONS: The following terms shall have the meanings set forth below:

a) “Access to Secure State Facilities, Data, and Technology” means Contractor will (A) enter upon secure premises controlled, held, leased, or occupied by the State of Utah; (B) maintain, develop, or have access to any deployed hardware, software, firmware, or any other technology, that is in use by the State of Utah; or (C) have access to or receive any State Data or Confidential Information during the course of performing this Contract.

b) “Authorized Persons” means the Contractor’s employees, officers, partners, Subcontractors or other agents of Contractor who need to access State Data to enable the Contractor to perform its responsibilities under this Contract.

c) “Confidential Information” means information that is deemed as confidential under applicable state and federal laws, including personal information. The State Entity reserves the right to identify, during and after this Contract, additional reasonable types of categories of information that must be kept confidential under federal and state laws.

d) “Contract” means the Contract Signature Page(s), including all referenced attachments and documents incorporated by reference. The term “Contract” shall include any purchase orders that result from this Contract.

e) “Contract Signature Page(s)” means the State of Utah cover page(s) that the State Entity and Contractor signed.

f) “Contractor” means the individual or entity delivering the Procurement Item identified in this Contract. The term “Contractor” shall include Contractor’s agents, officers, employees, and partners.

g) “Custom Deliverable” means the Work Product that Contractor is required to deliver to State Entity under this Contract.

h) “Data Breach” means the unauthorized access by a non-authorized person(s) which results in unauthorized acquisition of State Data and compromises the security, confidentiality, or integrity of State Data. It is within State Entity’s sole discretion to determine whether the unauthorized access is a Security Incident or a Data Breach.

i) “Federal Criminal Background Check” means an in-depth background check conducted and processed by the FBI that covers all states. Federal Criminal Background Check reports will show if applicant has had any criminal cases filed against them that violated federal criminal law.

j) “Non-Public Data” means data, other than personal data, that is not subject to distribution to the public as public information. It is deemed to be sensitive and confidential by the State of Utah and the federal government because it contains information that is exempt by state, federal and local statutes, ordinances, or administrative rules from access by the general public as public information.

k) “Personal Data” means data that includes information relating to a person that identifies the person by a person’s first name or first initial and last name and has any of the following personally identifiable information (PII): government-issued identification numbers (e.g., Social Security, driver’s license, passport); financial account information; including account number, credit or debit card numbers; or protected health information (PHI) relating to a person.

l) “Protected Health Information” (PHI) means individually identifiable health information transmitted by electronic media, maintained in electronic media, or transmitted or maintained in any other form or medium. PHI excludes education records covered by the Family Educational Rights and Privacy Act (FERPA), as amended, 20 U.S.C. 1232g, records described at 20 U.S.C. 1232g(a)(4)(B)(iv) and employment records held by a covered entity in its role as employer.

m) "Procurement Item" means a supply, a service, Custom Deliverable, construction, and/or technology that Contractor is required to deliver to the State Entity under this Contract.

n) “Response” means the Contractor’s bid, proposals, quote, or any other document used by the Contractor to respond to the State Entity’s Solicitation.

o) “Security Incident” means the potentially unauthorized access by non-authorized persons to State Data that Contractor believes could reasonably result in the use, disclosure or theft of State Data within the possession or control of the Contractor. A Security Incident may or may not turn into a Data Breach. It is within the State Entity’s sole discretion to determine whether the unauthorized access is a Security Incident or a Data Breach.

p) “Solicitation” means an invitation for bids, request for proposals, notice of a sole source procurement, request for statement of qualifications, request for information, or any document used to obtain bids, proposals, pricing, qualifications, or information for the purpose of entering into this Contract.

q) “State Data” means all Confidential Information, Non-Public Data, Personal Data, and Protected Health Information that is created or in any way originating with the State of Utah whether such data or output is stored on the State of Utah’s hardware, Contractor’s hardware, or exists in any system owned, maintained or otherwise controlled by the State of Utah or by the Contractor. State Data also includes any federal data that the State of Utah controls or maintains that is protected under federal laws, statutes, and regulations.

r) “State Entity” means the Utah Communications Authority, an independent agency of the State of Utah.

s) “State of Utah” means the State of Utah, in its entirety, including its institutions, agencies, departments, divisions, authorities, instrumentalities, boards, commissions, elected or appointed officers, employees, agents, and authorized volunteers.

t) “Subcontractors” means a person under contract with a contractor or another subcontractor to provide services or labor for design or construction, including a trade contractor or specialty contractor.

u) “Work Product” means every invention, modification, discovery, design, development, customization, configuration, improvement, process, software program, work of authorship, documentation, formula, datum, technique, know how, secret, or intellectual property right whatsoever or any interest therein (whether patentable or not patentable or registerable under copyright or similar statutes or subject to analogous protection) that is specifically made, conceived, discovered, or reduced to practice by Contractor or Contractor’s Subcontractors (either alone or with others) pursuant to this Contract. Work Product shall be considered a work made for hire under federal, state, and local laws; and all interest and title shall be transferred to and owned by State Entity. Notwithstanding anything in the immediately preceding sentence to the contrary, Work Product does not include any State Entity intellectual property, Contractor’s intellectual property (that it owned or licensed prior to this Contract) or Third Party intellectual property.

On termination of this Contract, all accounts and payments will be processed according to the financial arrangements set forth herein for approved and conforming Procurement Items received prior to date of termination. In no event shall the State Entity be liable to the Contractor for compensation for any Good neither requested nor accepted by the State Entity. In no event shall the State Entity’s exercise of its right to terminate this Contract for convenience relieve the Contractor of any liability to the State Entity for any damages or claims arising under this Contract.

15. NONAPPROPRIATION OF FUNDS, REDUCTION OF FUNDS, OR CHANGES IN LAW: Upon thirty (30) days written notice delivered to the Contractor, this Contract may be terminated in whole or in part at the sole discretion of the State Entity, if the State Entity reasonably determines that: (i) a change in Federal or State legislation or applicable laws materially affects the ability of either party to perform under the terms of this Contract; or (ii) that a change in available funds affects the State Entity’s ability to pay under this Contract. A change of available funds as used in this paragraph includes, but is not limited to a change in Federal or State funding, whether as a result of a legislative act or by order of the President or the Governor.

If a written notice is delivered under this section, the State Entity will reimburse Contractor for the Procurement Item(s) properly ordered and/or Services properly performed until the effective date of said notice. The State Entity will not be liable for any performance, commitments, penalties, or liquidated damages that accrue after the effective date of said written notice.

16. SALES TAX EXEMPTION: The Procurement Item(s) under this Contract will be paid for from the State Entity’s funds and used in the exercise of the State Entity’s essential functions as a State of Utah entity. Upon request, the State Entity will provide Contractor with its sales tax exemption number. It is Contractor’s responsibility to request the State Entity’s sales tax exemption number. It also is Contractor’s sole responsibility to ascertain whether any tax deduction or benefits apply to any aspect of this Contract.

17. WARRANTY OF PROCUREMENT ITEM(S): Contractor warrants, represents and conveys full ownership and clear title, free of all liens and encumbrances, to the Procurement Item(s) delivered to the State Entity under this Contract. Contractor warrants for a period of one (1) year that: (i) the Procurement Item(s) perform according to all specific claims that Contractor made in its Response; (ii) the Procurement Item(s) are suitable for the ordinary purposes for which such Procurement Item(s) are used; (iii) the Procurement Item(s) are suitable for any special purposes identified in the Contractor’s Response; (iv) the Procurement Item(s) are designed and manufactured in a commercially reasonable manner; (v) the Procurement Item(s) are manufactured and in all other respects create no harm to persons or property; and (vi) the Procurement Item(s) are free of defects. Unless otherwise specified, all Procurement Item(s) provided shall be new and unused of the latest model or design.

Remedies available to the State Entity under this section include, but are not limited to, the following: Contractor will repair or replace Procurement Item(s) at no charge to the State Entity within ten (10) days of any written notification informing Contractor of the Goods not performing as required under this Contract. If the repaired and/or replaced Procurement Item(s) prove to be inadequate, or fail its essential purpose, Contractor will refund the full amount of any payments that have been made. Nothing in this warranty will be construed to limit any rights or remedies the State Entity may otherwise have under this Contract.

18. HARDWARE WARRANTY: Contractor agrees to warrant and assume responsibility for all hardware portions of any Good or Custom Deliverable, that it licenses, contracts, or sells to the State Entity under this Contract, for a period of one (1) year. Contractor acknowledges that all warranties granted to the State Entity by the Uniform Commercial Code of the State of Utah apply to this Contract. Product liability disclaimers and/or warranty disclaimers from Contractor are not applicable to this Contract. In general, the Contractor warrants that the hardware: (a) will perform as specified in the Proposal; (b) will live up to all specific claims listed in the Proposal; (c) will be suitable for the ordinary purposes for which the hardware is used; (d) will be suitable for any special purposes that the State Entity has/have relied on Contractor’s skill or judgment to consider when it advised the State Entity about the hardware in the Proposal; (e) the hardware has been properly designed and manufactured; and (f) is free of significant defects or unusual problems about which the State Entity has not been warned.

19. SOFTWARE WARRANTY: Contractor warrants that for a period of ninety (90) days from the date of Acceptance that the software portions of the Procurements Items, that Contractor licenses, contracts, or sells to the State Entity under this Contract, will: (a) perform in accordance with the specific claims provided in the Response and any specifications agreed to in writing between the State Entity and Contractor; (b) be suitable for the ordinary purposes for which such software is used; (c) be suitable for any special purposes that the State Entity has relied on Contractor’s skill or judgment to consider when it advised the State Entity about the software in its Response; (d) have been properly designed and manufactured; and (e) be free of significant defects or unusual problems about which the State Entity has not been warned. Contractor shall use commercially reasonable efforts to provide work-around solutions or patches to reported software problems.

20. UPDATES AND UPGRADES: Contractor grants to the State Entity a non-exclusive, non-transferable license to use upgrades and updates provided by Contractor during the term of this Contract. Such upgrades and updates are subject to the terms of this Contract. The State Entity shall download, distribute, and install all updates as released by Contractor during the Contract Period.

21. TECHNICAL SUPPORT AND MAINTENANCE: Contractor acknowledges and understands that the State Entity is a public safety agency tasked with maintaining emergency communications throughout the State of Utah. As such, Contractor commits to perform technical support and maintenance in a manner that is commensurate with this public safety standard and to employ best efforts to maintain the products and services provided under this Contract. Contractor shall, within one hour of discovering or receiving any notice of any diminution in performance, failure, or other decrease in services provided by the Procurement Item(s) under this Agreement, or within one hour of when the Contractor should have known of any diminution in performance, failure, or other decrease in services provided by the Procurement Item(s), dispatch appropriate personnel, equipment, and resources to fully restore the Procurement Item(s) utilizing Contractor’s best efforts to do so. In the event the Contractor fails to dispatch appropriate personnel, equipment, and resources within the afore-mentioned one hour period, Contractor shall pay to the State Entity a penalty equal to six (6) months of revenue the Contractor would otherwise receive under this Contract. Furthermore, in the event that the Contractor fails to dispatch appropriate personnel, equipment, and resources within the afore-mentioned one hour period, Contractor hereby grants to the State Entity all rights and authority to access Contractor’s property, equipment, networks, etc. necessary or convenient to correct any diminution in performance, failure, or other decrease in services provided by the Procurement Item(s) and releases the State Entity from any and all liability associated with such access or actions.

Within twenty four (24) after the Contractor knew, should have known, or was notified of any diminution in performance, failure, or other decrease in services provided by the Procurement Item(s), Contractor shall correct any diminution in performance, failure, or other decrease in services provided by the Procurement Item(s). In the event any diminution in performance, failure, or other decrease in services provided by the Procurement Item(s) continues for more than twenty four (24) hours after Contractor knew, should have known, or was notified of any diminution in performance, failure, or other decrease in services provided by the Procurement Item(s), Contractor shall pay to the State Entity a penalty equal to one (1) month of revenue the Contractor would otherwise receive under this Contract for each additional hour that the diminution in the Procurement Item(s) continues to exist or persist. In addition, in the event any diminution in performance, failure, or other decrease in services provided by the Procurement Item(s) continues for more than twenty four (24) hours after Contractor knew, should have known, or was notified of any diminution in performance, failure, or other decrease in services provided by the Procurement Item(s), the Contractor hereby grants to the State Entity all rights and authority to access Contractor’s property, equipment, networks, etc. necessary or convenient to correct any diminution in performance, failure, or other decrease in services provided by the Procurement Item(s) and releases the State Entity from any and all liability associated with such access or actions.

22. SECURE PROTECTION AND HANDLING OF STATE DATA: If Contractor is given State Data as part of this Contract, the protection of State Data shall be an integral part of the business activities of Contractor to ensure that there is no inappropriate or unauthorized use of State Data. To the extent that Contractor is given State Data, Contractor shall safeguard the confidentiality, integrity, and availability of the State Data and comply with the conditions outlined below. The State Entity reserves the right to verify Contractor’s adherence to the following conditions to ensure they are met during the life of the Contract:

a. Network Security: Contractor agrees at all times to maintain network security that - at a minimum - includes: network firewall provisioning, intrusion detection, and regular third party penetration testing. Contractor also agrees to maintain network security that conforms to one of the following:

(1) Those standards the State of Utah applies to its own network, found outlined in DTS Policy 5000-0002 Enterprise Information Security Policy (copy available upon request);

(2) Current standards set forth and maintained by the National Institute of Standards and Technology, including those at: http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf; or

(3) Any generally recognized comparable standard that Contractor then applies to its own network and is approved by the State Entity in writing.

28. CONTRACTOR’S INSURANCE RESPONSIBILITY. The Contractor shall maintain the following insurance coverage:

a. Workers’ compensation insurance during the term of this Contract for all its employees and any Subcontractor employees related to this Contract. Workers’ compensation insurance shall cover full liability under the workers’ compensation laws of the jurisdiction in which the work is performed at the statutory limits required by said jurisdiction.

b. Commercial general liability [CGL] insurance (including Products/Competed Operations coverage) from an insurance company authorized to do business in the State of Utah. The limits of the CGL insurance policy will be no less than one million dollars ($1,000,000.00) per person per occurrence and three million dollars ($3,000,000.00) aggregate per occurrence.

c. Commercial automobile liability [CAL] insurance from an insurance company authorized to do business in the State of Utah. The CAL insurance policy must cover bodily injury and property damage liability and be applicable to all vehicles used in your performance of Services under this Agreement whether owned, non-owned, leased, or hired. The minimum liability limit must be $1 million per occurrence, combined single limit. The CAL insurance policy is required if Contractor will use a vehicle in the performance of this Contract.

d. Other insurance policies required in the Solicitation.

Certificate of Insurance, showing up-to-date coverage, shall be on file with the State Entity before the Contract may commence. The CGL and CAL policies shall name the State Entity and the State of Utah as additional insureds.

The State reserves the right to require higher or lower insurance limits where warranted. Failure to provide proof of insurance as required will be deemed a material breach of this Contract. Contractor’s failure to maintain this insurance requirement for the term of this Contract will be grounds for immediate termination of this Contract.

29. ADDITIONAL TERMS APPLICABLE TO PROCUREMENT ITEMS INVOLVING CONSTRUCTION. The following provisions shall apply to Procurement Items involving construction and/or installation work.

1. Contractor has received payment for the Custom Deliverables,

2. Each party will retain all rights to patents, utility models, mask works, copyrights, trademarks, trade secrets, and any other form of protection afforded by law to inventions, models, designs, technical information, and applications (“Intellectual Property Rights”) that it owned or controlled prior to the effective date of this contract or that it develops or acquires from activities independent of the services performed under this contract (“Background IP”), and

3. Contractor will retain all right, title, and interest in and to all Intellectual Property Rights in or related to the services, or tangible components thereof, including but not limited to (a) all know-how, intellectual property, methodologies, processes, technologies, algorithms, software, or development tools used in performing the Services (collectively, the “Utilities”), and (b) such ideas, concepts, know-how, processes and reusable reports, designs, charts, plans, specifications, documentation, forms, templates, or output which are supplied or otherwise used by or on behalf of Contractor in the course of performing the Services or creating the Custom Deliverables, other than portions that specifically incorporate proprietary or Confidential Information or Custom Deliverables of State Entity (collectively, the “Residual IP”), even if embedded in the Custom Deliverables.

4. Custom Deliverables, not including Contractor’s Intellectual Property Rights, Background IP, and Residual IP, may not be marketed or distributed without written approval by State Entity.

Contractor agrees to grant to State Entity a perpetual, irrevocable, royalty-free license to use Contractor’s Background IP, Utilities, and Residual IP, as defined above, solely for State Entity and the State of Utah to use the Custom Deliverables. State Entity reserves a royalty-free, nonexclusive, and irrevocable license to reproduce, publish, or otherwise use and to authorize others to use, for State Entity’s and the State of Utah’s internal purposes, such Custom Deliverables. For the Goods delivered that consist of Contractor’s scripts and code and are not considered Custom Deliverables or Work Product, for any reason whatsoever, Contractor grants State Entity a non-exclusive, non-transferable, irrevocable, perpetual right to use, copy, and create derivative works from such, without the right to sublicense, for State Entity’s and the State of Utah’s internal business operation under this Contract. State Entity and the State of Utah may not participate in the transfer or sale of, create derivative works from, or in any way exploit Contractor’s Intellectual Property Rights, in whole or in part.

38. PROTECTION AND USE OF RECORDS: The State Entity shall own exclusive title to all information gathered, reports developed, and conclusions reached in performance of this Contract. Contractor may not use, except in meeting its obligations under this Contract, information gathered, reports developed, or conclusions reached in performance of this Contract without the express written consent of the State Entity.

39. RETURN OF DOCUMENTS AND DATA: All documents and data pertaining to work required by this Contract will be the property of the State Entity, and must be delivered to State Entity within thirty (30) working days after termination or expiration of this Contract, regardless of the reason for contract termination, and without restriction or limitation to their future use. Any documents and data that may be returned under provisions of this Section must either be in the format as originally provided, or in a format that is readily usable by the State Entity or that can be formatted in a way that it can be used. The costs for returning documents and data to the State Entity are included in this Contract.

40. ASSIGNMENT: Contractor may not assign, sell, transfer, subcontract or sublet rights, or delegate any right or obligation under this Contract, in whole or in part, without the prior written approval of the State Entity.

41. REMEDIES: Any of the following events will constitute cause for the State Entity to declare Contractor in default of this Contract: (i) Contractor’s non-performance of its contractual requirements and obligations under this Contract; or (ii) Contractor’s material breach of any term or condition of this Contract. The State Entity may issue a written notice of default providing a ten (10) day period in which Contractor will have an opportunity to cure. Time allowed for cure will not diminish or eliminate Contractor's liability for damages. If the default remains after Contractor has been provided the opportunity to cure, the State Entity may do one or more of the following: (i) exercise any remedy provided by law or equity; (ii) terminate this Contract; (iii) impose liquidated damages, if liquidated damages are listed in this Contract; (iv) debar/suspend Contractor from receiving future contracts from the State Entity or the State of Utah; or (v) demand a full refund of any payment that the State Entity has made to Contractor under this Contract for Procurement Item(s) that do not conform to this Contract.

42. FORCE MAJEURE: Neither party to this Contract will be held responsible for delay or default caused by fire, riot, act of God, and/or war which is beyond that party's reasonable control.