201-26-045 Administrative Appendix E VDOE Virginia Statewide K-12 Student Assessment Program (SOL) Contract.docx

101 NORTH 14TH STREET

RICHMOND, VIRGINIA 23219

Information Technology Solution Contract

Virginia Statewide K-12 Student Assessment Program (SOL) between

Virginia Department of Education (VDOE) and

Supplier

Note: This public body does not discriminate against faith-based organizations in accordance with the Code of Virginia, § 2.2-4343.1.

201-26-045 VDOE’s Virginia Statewide K-12 Student Assessment Program (SOL) Contract INFORMATION TECHNOLOGY Solution Contract Virginia Statewide K-12 Student Assessment Program (SOL) Table of Contents

Page i 201-26-045 VDOE’s Virginia Statewide K-12 Student Assessment Program (SOL) Contract

INFORMATION TECHNOLOGY Solution Contract

THIS INFORMATION TECHNOLOGY Solution CONTRACT (“Contract”) is entered into by and between Virginia Department of Education (“VDOE” or “Agency”), pursuant to §§ 22.1 of the Code of Virginia, and Supplier Corporation (“Supplier”), a __________ headquartered at __________, to be effective as of Contract Award Date (“Effective Date”).

1. PURPOSE AND SCOPE

The Implementation work authorized in this SOW will include a comprehensive, supplier‑hosted cloud solution that supports the full lifecycle of Virginia’s statewide K‑12 summative assessment program, including test development, dual‑mode (online and paper) delivery, scoring, administration, reporting, and associated psychometric and project management services. The scope encompasses maintaining and enhancing Virginia’s modernized assessment system in alignment with updated Standards of Learning, legislative mandates, accessibility requirements, security standards, and statewide accountability needs, while ensuring continuity of core operations during a multi‑month transition from the incumbent vendor. The project aims to provide a scalable, reliable, and secure assessment platform that delivers timely, accurate results; supports instructional improvement; incorporates appropriate innovations such as technology‑enhanced and constructed‑response items; and meets all functional, technical, and implementation requirements outlined in Exhibit A: Requirements.

DEFINITIONS

Capitalized terms used in this Contract have the meaning as provided (i) where each term is used in the Contract unless the term is (ii) set forth in this “Definitions” section below which lists the capitalized terms used in this Contract and provides a definition for the term.

Acceptance The written acknowledgement by Agency of successful delivery and performance by the Supplier of its contractual commitments at the location(s) designated in the applicable order or Statement of Work (“SOW”), including completed and successful acceptance testing in conformance with the Requirements as determined by Agency and set forth in the applicable order or SOW.

Agency The Virginia Department of Education, of the Commonwealth of Virginia pursuant to Title 22.1 Chapter 3 (§§ 22.1 et seq.) of the Code, or any successor agency.

Aggregated Data Data combined with other data, presented in summary form, which cannot be used to identify VDOE, any individual, or any specific transaction.

Anonymized Data Data that has been processed to remove personal identifiers and is not linkable to an identified or identifiable natural person, and that, when combined with other data, cannot be reconstituted to identify any individual, consistent with the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, Family Educational Rights and Privacy Act (FERPA), and applicable Virginia law and Commonwealth data security policy.

Claim Any and all losses, damages, claims, demands, proceedings, suits and actions, including any related liabilities, obligations, losses, damages, assessments, fines, penalties (whether criminal or civil), judgments, settlements, expenses (including attorneys’ and accountants’ fees and disbursements), and costs. Collectively, “Claims”.

Code The Code of Virginia, as in effect and amended from time-to-time.

Commercial Off-The-Shelf (“COTS”) Software Software that is general in nature, not broad enterprise applications, which can be purchased and used immediately “as is,” without modification, in the same form in which it was sold in the commercial marketplace. Standard options are not considered modifications.

Commonwealth The Commonwealth of Virginia.

Commonwealth Indemnified Parties The Commonwealth and Agency, together with their respective officers, directors, agents, and employees.

Component Any part or service of the Solution, Software, or Deliverable delivered by Supplier under this Contract, including under all orders or SOWs.

Computer Virus Any malicious code, program, malware, or other internal component (e.g., computer virus, computer worm, computer time bomb, or similar component), which could damage, destroy, alter or disrupt any computer program, firmware, or hardware or which could, in any manner, reveal, damage, destroy, alter or disrupt any data or other information accessed through or processed by such software in any manner.

Concurrent Users The maximum number of concurrent active users utilizing the Software at a given point in time.

Confidential Information Non-public proprietary or trade secret information of Supplier or Agency, whether the information is in written, graphic, machine readable or other tangible form, and which at the time of disclosure to any other Party is either (i) marked as being “Confidential” or “Proprietary”; (ii) Health Records; (iii) Personally identifiable information, including information about Agency’s employees, contractors, and customers, or Sensitive Data, including PHI; or (iv) information that is protected by statute or other applicable law. “Confidential Information” also includes any (a) information to which the Supplier has access in Agency facilities or Agency’s systems, (b) Work Product and information pertaining to the Work Product, (c) Agency data, Agency software, and systems access codes, and (d) information concerning Agency’s operations, plans, employees, contractors or third party suppliers.

The term “Confidential Information” does not include information that is:

i. in the public domain through no fault of the receiving Party or of any other person or entity that is similarly contractually or otherwise obligated;

ii. obtained independently from a third-party without an obligation of confidentiality to the disclosing Party and without breach of this Contract;

iii. developed independently by the receiving Party without reference to the Confidential Information of the other Party; or

iv. required to be disclosed under The Virginia Freedom of Information Act (§§2.2-3700 et seq. of the Code of Virginia) or similar laws or pursuant to a court order.

Contract This agreement, including all exhibits, schedules, and attachments, including any modifications or amendments thereto, entered into by Agency and Supplier.

Contractor The use of the term “Contractor” in any of the following terms, conditions, links, or IRS Publication 1075 means the same as the term “Supplier” as defined and used in this Contract.

Deliverable Software, Documentation, Components, plans, reports, data, Work Product, and any other materials, items or events, in each case described or itemized as something that is developed, prepared or created and delivered or required to be developed, prepared or created and delivered or made available to Agency or other Agency as part of the Services, Maintenance Services, Licensed Services, Application, Solution, Product, Software, System Software, Supplier Product, or Updates, including the development or creation of Work Product.

Documentation Those materials (including user manuals, training materials, guides, product descriptions, technical manuals, product specifications, supporting materials and Updates) detailing the information and instructions needed in order to allow Agency and its agents to make productive use of the Application, Software, Solution, Product, Service, Licensed Services or Deliverable, including any and all Components, and to implement and develop self-sufficiency with regard to the Application, Software, Solution, Product, Service, Licensed Services or Deliverable, including any and all components, provided by Supplier in fulfilling its obligations under the Contract or as may be specified in any order or SOW issued pursuant to this Contract.

Education Record Records that are directly related to a student and that are maintained by an educational agency or institution or a party acting for or on behalf of the agency or institution. These records include but are not limited to grades, transcripts, class lists, student course schedules, health records (at the K-12 level), and student discipline files. The information may be recorded in any way, including, but not limited to, handwriting, print, computer media, videotape, audiotape, film, microfilm, microfiche, and e-mail.

Effective Date The date this Contract goes into full force and effect as set forth in the preamble of this Contract above.

Escrow Agent The person or entity that holds and maintains all Software source code and related technical and user Documentation, along with a signed copy of the Escrow Agreement attached to this Contract as Exhibit J [Supplier to provide as applicable], in trust for the Parties as set forth in the “Escrow Agreement” section of this Contract below.

Federal Tax Information (“FTI”) FTI consists of federal tax returns and return information (and information derived from it) that is in the possession or control of Agency, which is covered by the confidentiality protections of the Internal Revenue Code (“IRC”) and subject to the IRC § 6103(p)(4) safeguarding requirements including IRS oversight. FTI is categorized as “Sensitive” but “Unclassified” information and may contain personally identifiable information.

Health Record Any written, printed or electronically recorded material maintained by a health care entity in the course of providing health services to an individual concerning the individual and the services provided. "Health Record" also includes the substance of any communication made by an individual to a health care entity in confidence during or in connection with the provision of health services or information otherwise acquired by the health care entity about an individual in confidence and in connection with the provision of health services to the individual. (Code § 32.1-127.1:03).

Inventory Record A record of all units of Product covered under warranty or maintenance by type, quantity, and location, including the end date for each unit’s warranty period or maintenance term, as applicable.

Maintenance Coverage Period (“MCP”) The period of time during which Supplier is obligated to provide Maintenance Services for a unit of Software or Product.

Maintenance Level The defined parameters of Maintenance Services, including the times during which, and time-frames in which, Supplier shall respond to a request for Maintenance Services. The available Maintenance Levels are defined in Exhibit I to this Contract or as defined in any Statement of Work or order issued pursuant to this Contract. The actual Maintenance Level for a unit of Software or Product will be set forth in the signed order or Statement of Work for Maintenance Services of that Software or Product referencing this Contract.

Maintenance Services Services, preventive and remedial, provided or performed by Supplier under the Contract in order to ensure continued operation of the Product, Hardware, or Software, including Software Updates. Maintenance Services include support services. Maintenance Services for Software may include the development of Work Product, if so authorized in the Contract.

Open Source Computer software provided by a creator or community for users of the software to freely inspect, modify, enhance, and distribute the software and its source code. Open Source software operates under a licensing model whereby the copyright holder confers obligations to a user using that work, and all subsequent derivative works.

Original Equipment Manufacturer (“OEM”) The original equipment manufacturer, or in the case of software, the software publisher/licensor of, Maintenance Services, Licensed Services, Application, Solution, Solution Component, Software, System Software, plans, reports, data, Product, and Updates.

Party Supplier, Agency.

Personally Identifiable Information (“PII”) Individually identifiable student information that is maintained in education records and includes direct identifiers, such as a student’s name or identification number, indirect identifiers, such as a student’s date of birth, or other information which can be used to distinguish or trace an individual’s identity either directly or indirectly through linkages with other information. The term includes, but is not limited to—

(a) The student's name;

(b) The name of the student's parent or other family members;

(c) The address of the student or student's family;

(d) A personal identifier, such as the student's social security number, student number, or biometric record;

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

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

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

Product Hardware, peripherals, and any other equipment, including the System Software, all upgrades, all applicable user documentation, and related accessories as set forth on Exhibit A or as specified in any Statement of Work or order provided pursuant to the Contract.

Protected Health Information (“PHI”) Individually identifiable health information that is (i) transmitted in electronic media, (ii) maintained in electronic media, or (iii) transmitted or maintained in any other form or medium. PHI excludes individually identifiable health information in (a) education records covered by the Family Educational Rights and Privacy Act (20 U.S.C.§ 1232g); (b) records of any student who is 18 years of age or older, or is attending a postsecondary school, that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his professional or paraprofessional capacity, or assisting in that capacity, and that are made, maintained, or used only in connection with the provision of treatment to the student and are not available to anyone other than persons providing such treatment, except that such records may be personally reviewed by a physician or other appropriate professional of the student's choice; and (c) employment records held, in its role as employer, by a health plan, health care clearinghouse, or health care provider that transmits health information in electronic form. (§ 64.2-2100 of the Code) Receipt Agency has physically received or has unfettered access to any Deliverable at the correct “ship-to” location.

Requirements The functional, performance, operational, compatibility, Acceptance testing criteria, and other parameters and characteristics of the Product, Software, Solution, Service(s), Application and Licensed Services and Deliverables, including any and all components, as authorized by any combination of the Contract, as set forth in Exhibit A or the applicable order or SOW, and such other parameters, characteristics, or performance standards that may be agreed upon in writing by the Parties.

Safety Changes Any engineering changes that affect the safety of the Product(s) provided pursuant to this Contract.

Services Any work performed or service provided by Supplier – including the design and development of software and modifications, software updates, solution, products, implementation, installation, maintenance, support, testing, training, or other provision of service – in meeting the Requirements and fulfilling Supplier's obligations under the Contract or, as applicable, under any order or SOW authorized by the scope of the Contract. “Services” includes all functions, responsibilities, activities, and tasks of the Supplier that are an inherent, necessary, or customary part of the Services, or are required for the proper performance or provision of the Services. As permitted by the scope of the Contract, “Services” may include the discovery, creation, or development of Work Product.

Software Any form of data, image, sound and instructions, that include source code and object code, which are stored in a machine-readable format provided by Supplier for on-premises use by an Authorized User pursuant to an order or SOW and any subsequent modification of such programs and code. For COTS Software, “Software” means the programs and code, and any subsequent releases, provided by Supplier under this Contract as set forth in Exhibit B or as described on Supplier's US and International price lists in effect at time of Authorized User's placement of order or SOW.

Software Publisher The third-party licensor of the Software, other than the Supplier, provided by Supplier under this Contract.

Solution The Supplier’s contractually committed technical approach for solving an information technology business objective and associated Requirements as defined and authorized by the scope of the Contract or any order or Statement of Work issued under the Contract. Solution means all Supplier and Supplier’s third-party providers’ components making up the Solution, including but not limited to Software, Product, configuration design, implementation, Supplier-developed interfaces, Services and Work Product.

Statement of Work (“SOW”) Any document in substantially the form of Exhibit C (describing the deliverables, due dates, assignment duration, Acceptance criteria, and payment obligations for a specific project, engagement, or assignment that Supplier commits to provide to Agency), which, upon signing by both Parties, is made a part of the Contract.

Subcontractor Any entity to which Supplier (or other Subcontractor of any tier) has subcontracted for performance of, or delegated any of its responsibilities under the Contract, including an affiliate of the Supplier.

Supplier The entity set forth in the preamble of this Contract and any entity that controls, is controlled by, or is under common control with Supplier.

Supplier Personnel Any and all of Supplier’s employees, agents, contractors, or Subcontractors performing under this Contract.

SWaM Any entity certified by the Commonwealth’s Department of Small Business and Supplier Diversity as a small, women-owned, minority-owned, or service disabled veteran-owned business, as defined in Code §§ 2.2-2000.1 and 2.2-4310, or a certified micro business as defined in Executive Order Number 35 (2019).

Transition Out Plan The written plan developed by Supplier addressing the transition of Supplier’s contractual obligations, in whole or in part, away from the Supplier and to Agency, or its designee, after the expiration or termination of the Contract.

Transition Period The period of time after the expiration or termination of the Contract that Supplier is obligated to continue providing assistance to Agency so as to transition the Supplier’s contractual obligations, or any portion thereof, to any other supplier.

Update Any update, modification, or new release of the Software, System Software, Application, Documentation, or Supplier Product that Supplier makes generally available to its customers at no additional cost. Software Updates include patches, fixes, upgrades, enhancements, improvements, or access mode, including without limitation additional capabilities to or otherwise improve the functionality, increase the speed, efficiency, or base operation of the Software.

VDOE Data VDOE data, records, content, files, documents, text, images, audio, video, software code, metadata, logs, identifiers, and any other information provided to, made available to, collected by, or generated for VDOE under the Contract, including data received from VDOE systems, end users, devices, or third parties on VDOE’s behalf. VDOE data includes SOL assessment content including but not limited to items and metadata, blueprints, scoring materials, and psychometric analyses. VDOE Data also includes Personally Identifiable Information (PII), Confidential Information, and operational/telemetry data arising from VDOE’s use of the Solution.

VITA

The Virginia Information Technologies Agency, Agency of the Commonwealth of Virginia pursuant to Chapter 20.1 (§§ 2.2-2005 et seq.) of the Code, or any successor agency.

Warranty Period The period of time during which Supplier is obligated to provide corrections, free of charge, for a unit of Software or Product.

Web Site The Internet site operated by Supplier to provide access to the Application, with the Uniform Resource Locator ("URL") specified in the applicable order or SOW (or any successor URL(s)).

Work Product Inventions, combinations, machines, methods, formulae, techniques, processes, improvements, software designs, computer programs, strategies, specific computer-related know-how, data and original works of authorship discovered, created, or developed by Supplier, or jointly by Supplier and Agency(s) in the performance of this Contract. Work Product does not include configuration of software, nor does it include anything developed by Supplier prior to, or outside of, this Contract.

TERM AND TERMINATION

Contract Term This Contract is effective and legally binding as of the Effective Date and, unless terminated as provided for in this section, will be effective and legally binding for a period of five (5) years (“Initial Term”). Agency, in its sole discretion, may renew this Contract for up to five (5) additional one (1) year renewal periods after the expiration of the Initial Term (collectively with the Initial Term, the “Contract Term”). Agency will issue a written notification to the Supplier stating Agency’s intention to exercise a renewal period no less than 30 calendar days prior to the expiration of any current term. In addition, performance of an order or SOW issued during the Contract Term may survive the expiration of the Contract Term, in which case all contractual terms and conditions required for the operation of such order or SOW will remain in full force and effect until all of Supplier's obligations pursuant to such order or SOW have met the final Acceptance criteria of Agency.

Termination for Convenience Agency may terminate this Contract, in whole or in part, at any time and for any reason upon not less than 30 calendar days prior written notice to Supplier. Agency may terminate an order or SOW, in whole or in part, at any time and for any reason upon not less than 30 calendar days prior written notice to Supplier. Any termination under this provision will not affect the rights and obligations attending any order or SOW outstanding at the termination date.

Termination for Breach In the event of breach by the Supplier, Agency will have the right to terminate this Contract, in whole or in part, and Agency may terminate an order or SOW issued hereunder, in whole or in part. Supplier will be deemed in breach in the event that Supplier fails to meet any material obligation set forth in this Contract or in any order or SOW issued hereunder. Any termination under the provisions of this section will be deemed a “Termination for Breach”.

If Agency deems the Supplier to be in breach, Agency shall provide Supplier with notice of breach and allow Supplier 15 business days to cure the breach. If Supplier fails to cure the breach as noted, Agency may immediately terminate this Contract or any order or SOW issued pursuant to this Contract, in whole or in part. If Agency deems the Supplier to be in breach of an order or SOW, that Agency shall provide Supplier with notice of breach and allow Supplier 15 business days to cure the breach. If Supplier fails to cure the breach as noted, Agency may immediately terminate its order or SOW, in whole or in part. In addition, if Supplier is found by a court of competent jurisdiction to be in violation of or to have violated 31 U.S.C. § 1352, or if Supplier becomes a party excluded from Federal Procurement and Nonprocurement Programs, Agency may immediately terminate this Contract, in whole or in part, for breach, and Agency shall provide written notice to Supplier of such termination. Supplier shall provide prompt written notice to Agency if Supplier is charged with violation of 31 U.S.C. § 1352, or if federal debarment proceedings are instituted against Supplier.

Termination for Non-Appropriation of Funds All payment obligations from Agency under this Contract are subject to the availability of legislative appropriations at the federal, state, or local level for this purpose. In the event of non-appropriation of funds, irrespective of the source of funds, for the items under this Contract, Agency may terminate this Contract, in whole or in part, or any order or SOW, in whole or in part, or Agency may terminate an order or SOW, in whole or in part, for those goods or services for which funds have not been appropriated. Written notice will be provided to the Supplier as soon as possible after legislative action is completed.

Effect of Termination Upon termination, neither the Commonwealth, nor Agency, will have any future liability except for Deliverables accepted by Agency or Services (including any applicable Licensed Services and Maintenance Services) rendered by Supplier and accepted by Agency prior to the termination date.

In the event of a Termination for Breach, Supplier shall accept return of any Deliverable that was not accepted by Agency, and Supplier shall refund any monies paid by Agency for the unaccepted Deliverable. The Agency will also have the right, in its sole discretion, to return any accepted Deliverable and Supplier shall refund any monies paid for the accepted Deliverable, less a reasonable value for the use of those components Supplier will bear all costs of de-installation and return of Deliverables.

Termination by Supplier In no instance will termination by Supplier be considered. Failure by an Authorized User to make timely payments owed to Supplier for its performance under this Contract may constitute a breach by that Authorized User. Supplier’s remedies for an alleged breach by a Commonwealth Authorized User are limited to the remedies set forth in Code § 2.2-4363 and the “Remedies” section of this Contract below.

Transition of Services At the request of Agency prior to or upon expiration or termination of this Contract, Supplier shall provide all assistance as Agency may reasonably require to transition the Supplier’s contractual obligations, or any portion thereof, to any other supplier with whom Agency contracts for provision of same. This Transition Period obligation may extend beyond expiration or termination of the Contract for a period of twelve (12) months. If this Contract includes Supplier's provision of licensed products, Supplier shall take no action to restrict or terminate the use of such licensed products after the date of expiration or termination of the Contract or during any Transition Period, or both. Agency shall pay for any additional maintenance or licensing fees during any Transition Period at the hourly rate or at a fee agreed upon by Supplier and the applicable Agency. Supplier shall provide all reasonable transition assistance requested by the applicable Agency to allow for the expired or terminated portion of the Services to continue without interruption or adverse effect, and to facilitate the orderly transfer of such Services to Agency. The transition assistance will be deemed by the parties to be governed by the terms and conditions of this Contract, except for those terms or conditions that do not reasonably apply to transition assistance. Further, any Transition Period will not affect Agency's rights in regards to any purchased Software perpetual licenses which are paid in full.

Contract Kick-Off Meeting Within 30 calendar days of the Effective Date, Supplier may be required to attend a contract orientation meeting, along with Agency contract manager/administrator, Agency project manager(s) or authorized representative(s), and any other significant stakeholders who have a part in the successful performance of this Contract. The purpose of this meeting will be to review all contractual obligations for both parties, all administrative and reporting requirements, and to discuss any other relationship, responsibility, communication and performance criteria set forth in the Contract.

Transition Out Plan Within three (3) months of the Effective Date, Supplier will develop and distribute to the applicable Agency a Transition Out Plan. The Supplier will maintain the Transition Out Plan throughout the Term, and update the Transition Out Plan as needed and subject to Agency’s approval.

Contract Closeout Prior to the Contract’s expiration date, Supplier may be provided contract closeout documentation by Agency. If contract closeout documentation is provided, then Supplier shall complete, sign, and return to Agency Supply Chain Management any required documentation within 30 calendar days of receipt to ensure completion of closeout administration and to maintain a positive performance reputation with the Commonwealth. Any required closeout documentation not received within 30 calendar days of Supplier’s receipt of the Commonwealth's request will be documented in the contract file as Supplier non-compliance. Supplier’s non-compliance may affect any pending payments due to the Supplier, including final payment, until the documentation is returned to Agency.

SUPPLIER PERSONNEL

Selection and Management of Supplier Personnel Supplier shall ensure that all Supplier Personnel performing under this Contract are competent and knowledgeable of the contractual arrangements and the applicable order or SOW between Agency and Supplier. Supplier acknowledges that Supplier is the employer of all Supplier employees and shall have the sole responsibility to supervise, counsel, discipline, review, evaluate, set the pay rates of, provide (to the extent required by law) health care and other benefits for, and terminate the employment of Supplier employees. Supplier shall be solely responsible for the supervision and conduct of Supplier Personnel, including all acts, omissions, gross negligence, and willful misconduct of Supplier Personnel. Additionally, Supplier shall ensure that Supplier Personnel comply with the appropriate Agency’s site security, information security and personnel conduct rules, as well as applicable federal, state and local laws, including export regulations. Agency reserves the right to require the immediate removal from such Agency’s premises of any Supplier Personnel whom such Agency believes has failed to comply with the above or whose conduct or behavior is unacceptable or unprofessional or results in a security or safety breach.

Key Personnel An order or SOW may designate certain of Supplier’s personnel as “Key Personnel” or “Project Managers”. Supplier’s obligations with respect to Key Personnel and Project Managers will be described in the applicable order or SOW. Any changes to Key Personnel must be mutually agreed to in writing by Supplier and Agency. Failure of Supplier to perform in accordance with such obligations may be deemed a breach of this Contract or of the applicable order or SOW.

Subcontractors Supplier shall not use Subcontractors to perform its contractual obligations or any order or SOW issued pursuant to the Contract unless specifically authorized in writing to do so by Agency. If an order or SOW issued pursuant to this Contract is supported in whole or in part with federal funds, Supplier may not subcontract to any Subcontractor that is a party excluded from Federal Procurement and Nonprocurement Programs. In no event may Supplier subcontract to any Subcontractor that is debarred by the Commonwealth or that owes back taxes to the Commonwealth and has not made arrangements with the Commonwealth for payment of such back taxes.

If Supplier subcontracts the provision of any performance obligation under this Contract to any other party, Supplier shall (i) act as prime contractor and will be the sole point of contact with regard to all obligations under this Contract; and (ii) represent and warrant that any authorized Subcontractors shall perform in accordance with the terms and conditions, including warranties, set forth in this Contract.

NEW TECHNOLOGY

Access to New Technology Supplier will bring to Agency’s attention any new products or services within the scope of the Contract that Supplier believes will be of interest to Agency and will work to develop proposals for the provision of any such products or services as Agency requests.

New Services Offerings Not Available from Supplier If new or replacement product or service offerings become available and cannot be competitively provided by the Supplier under the scope of this Contract, Agency will have the right to purchase the new or replacement products or services from a third party. If Agency elects to use such new or replacement product or service offerings, Supplier will reasonably assist Agency to migrate to such products or services.

If Agency elects to acquire new products or services as described in the paragraph above and such services replace existing Supplier-provided services, discount tiers and any commitments (as applicable per the Contract) will be reduced to reflect reductions in purchases of the replaced products or services.

GENERAL WARRANTY

Supplier warrants and represents to Agency that Supplier will fulfill its contractual obligations and meet all Requirements as described in Exhibit A. Other than the obligations set forth in this section below, Supplier makes no other warranties, express or implied, concerning merchantability or fitness for any other particular purpose.

Supplier warrants and represents to Agency that:

Ownership Supplier has the right to perform and provide all contractual obligations and provide all needed services or products without violating or infringing any law, rule, regulation, copyright, patent, trade secret, or other proprietary right of any third party.

Coverage Requirements During the Warranty Period of five (5) years, or as specified in the applicable order or SOW, Supplier warrants that any Deliverables provided by Supplier under this Contract will meet or exceed the Requirements. Supplier shall correct, at no additional cost to Agency, all errors identified during the Warranty Period that result in supplier’s failure to meet the Requirement, or its contractual obligations.

The Warranty Period will begin at the Acceptance date of the final Deliverable.

Performance Warranty With respect to Supplier’s performance under this Contract:

i. Supplier shall perform all contractual obligations with the care, skill and diligence, consistent with or above applicable professional standards currently recognized in Supplier's profession, and Supplier shall be responsible for the professional quality, technical accuracy, completeness, and coordination of all plans, information, specifications, Deliverables, and Services furnished under this Contract; and

ii. Supplier shall ensure that any contractually-obligated Services or Deliverables, or both, meet or exceed the Requirements and that any Services and Deliverables will function in conformance with the Requirements.

Documentation and Deliverables

i. Any required Documentation Supplier is obligated to provide under this Contract will be sufficient in detail and content to allow an appropriately trained user/programmer to understand and fully utilize, as applicable, the Deliverables without reference to any other materials or information.

ii. All Deliverables provided or delivered pursuant to this Contract are at the current release level unless Agency specifies an older version in its order or SOW.

iii. No Update, engineering change, or revision made to any Supplier-provided Deliverables will (a) degrade the performance of any Deliverable or its components to a level below that defined in the Requirements or the Product manufacturer's or Software Publisher's published specifications, as applicable; (b) cause any other warranty to be breached; or (c) require Agency to acquire additional hardware equipment or software.

Interoperability Warranty Supplier warrants that each Component, regardless of the origin of the Component, delivered under this Contract or pursuant to an order or SOW shall be interoperable with other Components so as to meet or exceed the performance specified in the Requirements and the applicable order or SOW.

Malicious Code Supplier has used commercially reasonable efforts through quality assurance procedures to verify that there are no Computer Viruses or undocumented features in any of the Deliverables, as obligated and provided by Supplier under the order or SOW, at the time of delivery to Agency. Supplier has used the best available means to scan any media provided to Agency. Supplier warrants that the Deliverables, as obligated and provided by Supplier under the order or SOW, do not contain any embedded device or code (e.g., time bomb) that is intended to obstruct or prevent Agency’s use of the Deliverables.

Notwithstanding any rights granted under this Contract or at law, Supplier waives, under any and all circumstances, any right it has or may have in the future to exercise its license termination rights by electronic means. Supplier agrees that Agency may pursue all remedies provided under law in the event of a breach or threatened breach of this section, including injunctive or other equitable relief.

Open Source Supplier will notify all Agency if any Deliverables, as obligated and provided by Supplier, contain any Open Source code and identify the specific Open Source License that applies to any embedded code dependent on Open Source code, provided by Supplier under this Contract.

Supplier Viability Supplier has the financial capacity to perform and continue to perform its obligations under this Contract. Supplier has no constructive or actual knowledge of a potential legal proceeding being brought against Supplier that could materially adversely affect performance of this Contract. Further, Supplier is not prohibited by any contract, or order by any court of competent jurisdiction from entering into this Contract.

Supplier’s Past Experience Supplier has successfully completed the implementation of products/solutions substantially similar to what is proposed in RFP 201-26-045—i.e., a statewide K-12 summative assessment system delivered online and on paper—with at least two state clients, at least one of which has a total K-12 student enrollment of at least 400,000 students, as of the date of the RFP posting without significant problems due to Supplier’s performance and without causing a contractual breach or default claim by any customer.

SOFTWARE LICENSE

and all license rights granted pursuant to this Contract will be held pursuant to the terms of the “Licensing Within the Commonwealth” section of this Contract below.

License Grant Supplier grants to the Commonwealth and Agency a fully paid, perpetual, worldwide, nonexclusive, transferable, irrevocable object code license to use, copy, modify, transmit, and distribute the Software and Documentation, including any subsequent revisions, in accordance with the terms and conditions set forth herein and subject only to the limitations, restrictions, or both explicitly set forth in this Contract. It is expressly understood that “perpetual” license rights commence upon delivery of the Software to Agency and exist in perpetuity unless otherwise terminated in accordance with the applicable provisions of this Contract. The Software is the property of Supplier, and no title or ownership of the Software or any of its parts, including Documentation, is or will be transferred to the Commonwealth or Agency by this license grant.

Agency will have the right to use, copy, modify, transmit, and distribute the Software for their benefit, for government use and purposes, and for the benefit of their agents, including internal and third-party information processing. Except as expressly authorized, Agency may not distribute the Software to any third party without Supplier’s prior written consent.

Agency may allow access to the Software by third party vendors who are under contract with Agency to provide services to or on behalf of Agency, or by other entities as required for conducting the business of government. Access includes loading or executing the Software on behalf of Agency or its agents.

The license fee includes a test system copy, which consists of the right to use the Software for non-production test purposes, including but not limited to, problem/defect identification, remediation, resolution, debugging, new version evaluation, Software interface testing, and disaster recovery technique analysis and implementation.

Supplier shall provide replacement copies of the Software and Documentation in the event that all of Agency’s copies of the Software, including all backup copies, are destroyed, irreparably damaged, or otherwise lost due to disaster or other event beyond Agency’s reasonable control, Supplier shall provide to such Agency replacement copies of the Software and Documentation. These replacement copies will be provided to Agency at no additional cost. Nothing contained in this section will obligate Supplier to replace or assist in the recovery of data lost concurrent with the loss of the Software.

Agency may make a reasonable number of copies of the Software and Documentation for use in training, support, demonstrations, backup, archiving, disaster recovery, and development, and may run the Software concurrently at a back-up site, for no additional license fees or costs. Any copies of the Software or Documentation that Agency makes under this Contract must bear all copyright, trademark, and other proprietary notices included by Supplier. Agency may add its own copyright or other proprietary notice of the Commonwealth to any copy of the Software or Documentation that is modified by Agency and to which the Commonwealth or such Agency has ownership rights pursuant to this Contract.

Except as expressly authorized, Agency may not distribute the Software to any third party without Supplier’s prior written consent.

Except as provided or allowed by law, no Party shall reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from any Software or other intellectual property of any other Party.

License Type The “Enterprise Wide License” authorizes use of the Software on any CPU, on any system, and by any user within the “Enterprise”, as such term is defined in the applicable order or SOW, without limitation as to the quantity, location, or project.

No Subsequent, Unilateral Modification of Terms by Supplier (“Shrink Wrap”) The terms and conditions set forth in this section supersede and govern the licensing and delivery of all Products and Services in this Contract. The terms and conditions of this Contract will supersede any other provision or other unilateral license terms that may be issued by Supplier after the Effective Date, regardless of when those provisions were proposed or the fact that another agreement may be affixed to, or accompany, Software upon delivery (“shrink wrap”).

Reservation of Rights Nothing contained in this section will be construed to restrict or limit the rights of the Commonwealth or Agency to use any technical data that the Commonwealth or Agency may already possess or acquire under proper authorization from other sources.

RIGHTS TO WORK PRODUCT

Any license to pre-existing work will be held, and all rights in, title to, and ownership of Work Product will vest, pursuant to the terms of the “Licensing Within the Commonwealth” section of this Contract below.

Work Product Agency and Supplier mutually acknowledge that performance of this Contract may result in Work Product. The Parties shall document all Work Product specifications and these specifications will be set forth in Exhibit A and incorporated into this Contract. Supplier shall promptly and fully disclose to the Commonwealth or Agency any and all Work Product generated, conceived, reduced to practice, or learned by Supplier or any Supplier Personnel, either solely or jointly with others, during the term or performance of this Contract, which in any way relates to the business of the Commonwealth or Agency.