24-0005 Exhibit D Contract.docx

CONTRACT

NO. ____

FOR

FACILITY TECHNOLOGY MODERNIZATION

By and Between

STATE OF WASHINGTON

DEPARTMENT OF ENTERPRISE SERVICES

and

Dated _____________________, 20__

CONTRACT NO. K ____ 25

(Rev. 2024-07-05)

CONTRACT

NO. K ____

FOR

FACILITY TECHNOLOGY MODERNIZATION

This Contract (“Contract”) is made and entered into by and between the Washington Department of Enterprise Services, a Washington State governmental agency (“Enterprise Services”) and ____________________, a ________________ (“Contractor”) and is dated and effective as of _______________ __, 20__.

R E C I T A L S A. Pursuant to Legislative direction codified in RCW 39.26, Enterprise Services is authorized to solicit and award contracts, through a competitive procurement process, to obtain goods and/or services for use by Enterprise Services, including ________________ (Goods and/or Services”).

B. Enterprise Services, as part of a competitive governmental procurement, issued Competitive Solicitation No. K ____ dated ___________, 20__.

C. Enterprise Services evaluated all responses to the Competitive Solicitation and identified Contractor as the apparent successful bidder.

D. The purpose of this Contract is to enable Enterprise Services to purchase the Goods and/or Services as set forth herein.

A G R E E M E N T NOW THEREFORE, in consideration of the mutual promises, covenants, and conditions set forth herein, the parties hereto hereby agree as follows:

1. TERM. The term of this Contract is three (3) years, commencing _____________, 2024 and ending _____________, 20__; Provided, however, in Enterprise Services’ reasonable judgment, Enterprise Services may extend the term of this Contract, by written amendment, for up to seven (7) additional years. Such extension amendment shall be on the same terms and conditions as set forth in this Contract.

2. SCOPE: INCLUDED GOODS AND/OR SERVICES & PRICES.

2.1. CONTRACT SCOPE. Pursuant to this Contract, Contractor is authorized to sell and provide only those Goods and/or Services set forth in Exhibit A – Statement of Work for the prices set forth in Exhibit E – Prices for Goods/Services.

(a) Goods. For purposes of this Contract, “Goods” means all equipment, materials, supplies, ancillary parts, accessories, components and other items purchased by Enterprise Services pursuant to this Contract and, as applicable, as identified in a Purchase Order.

(b) Services. For purposes of this Contract, “Services” means all services of any nature ordered by Enterprise Services pursuant to this Contract and, as applicable, as identified in a Purchase Order.

(c) Specifications. Where applicable, specifications for Goods and/or Services are detailed in this Contract and, as applicable, a Purchase Order. Unless otherwise specified in a Purchase Order, all Goods and/or Services provided shall be new and unused of the latest model or design.

2.2. ENTERPRISE SERVICES’ ABILITY TO MODIFY SCOPE OF CONTRACT. Subject to mutual agreement between the parties, Enterprise Services reserves the right to modify the Goods and/or Services included in this Contract; Provided, however, that any such modification shall be effective only upon ten (10) days advance written notice; and Provided further, that any such modification must be within the scope of the Competitive Solicitation for this Contract.

2.3. ECONOMIC ADJUSTMENT. Beginning three (3) years after the effective date of this Contract and for every executed term extension thereafter, Contractor may propose price increases for the term extension by written notice to the Contract Administrator. Price increases are to be on a pass-through basis only and must not produce a higher profit margin for Contractor than that established by the original Contract pricing. Requests must include supporting documentation such as price increases at the manufacturer's level and/or other documentation of cost increases. Consideration of price increases will be at the sole discretion of the Contract Administrator. If a price increase is approved in part or in full, the resulting new Contract pricing will be implemented through a Contract Amendment.

2.4. PRICE CEILING. Although Contractor may offer lower prices to Enterprise Services, during the term of this Contract, Contractor guarantees to provide the Goods and/or Services at no greater than the prices set forth in Exhibit E – Prices for Goods/Services (subject to economic or other adjustment as set forth herein).

3. CONTRACTOR REPRESENTATIONS AND WARRANTIES. Contractor makes each of the following representations and warranties as of the effective date of this Contract and at the time of performance pursuant to this Contract. If, at the time of performance, Contractor cannot make such representations and warranties, Contractor shall not perform and shall, within three (3) business days notify Enterprise Services, in writing, of such breach.

3.1. QUALIFIED TO DO BUSINESS. Contractor represents and warrants that Contractor is (a) in good standing; (b) qualified to do business in the State of Washington; and (c) registered with the Washington State Department of Revenue and the Washington Secretary of State.

3.2. TAXES. Contractor represents and warrants that Contractor is current, in full compliance, and has paid all applicable taxes owed to the State of Washington.

3.3. LICENSES; CERTIFICATIONS; AUTHORIZATIONS; & APPROVALS. Contractor represents and warrants that Contractor possesses and shall keep current during the term of this Contract all required licenses, certifications, permits, authorizations, and approvals necessary for Contractor’s proper performance of this Contract.

3.4. SUSPENSION & DEBARMENT. Contractor represents and warrants as previously certified in Contractor’s Bidder’s Certification, that neither Contractor nor its principals or affiliates presently are nor have ever been debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in any governmental contract by any governmental department or agency within the United States.

3.5. WAGE VIOLATIONS. Contractor represents and warrants as previously certified in Contractor’s Bidder’s Certification, that during the term of this Contract and the three (3) year period immediately preceding the award of the Contract, Contractor has not been determined, by a final and binding citation and notice of assessment issued by the Washington Department of Labor and Industries or through a civil judgement entered by a court of limited or general jurisdiction, to be in willful violation of any provision of Washington state wage laws set forth in RCW 49.46, 49.48, or 49.52.

3.6. CIVIL RIGHTS. Contractor represents and warrants that Contractor complies with all applicable requirements regarding civil rights. Such requirements prohibit discrimination against individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin.

3.7. EXECUTIVE ORDER 18-03 – WORKERS’ RIGHTS. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor does NOT require its employees, as a condition of employment, to sign or agree to mandatory individual arbitration clauses or class or collective action waivers. Contractor further represents and warrants that, during the term of this Contract, Contractor shall not, as a condition of employment, require its employees to sign or agree to mandatory individual arbitration clauses or class or collective action waivers.

3.8. WASHINGTON SMALL BUSINESS. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor qualifies as a Washington Small Business as defined and set forth in Contractor’s Bidder’s Certification.

3.9. CERTIFIED VETERAN-OWNED BUSINESS. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor qualifies as a Certified Veteran-Owned Business as defined and set forth in Contractor’s Bidder’s Certification.

3.10. PUBLIC CONTRACTS AND PROCUREMENT FRAUD. Contractor represents and warrants that, within the three (3) year period prior to this Contract, neither Contractor nor its principals or affiliates: (a) have been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offence in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) contract or Purchase Order under a public contract; (b) have been in violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements or receiving stolen property; (c) are presently indicted for or otherwise criminally or civilly charged by a government entity (federal, state or local) with commission of any of the offense enumerated in subsection (b) of this provision; or (d) had one or more public contracts (federal, state or local) terminated for cause or default.

3.11. PROCUREMENT ETHICS & PROHIBITION ON GIFTS. Contractor represents and warrants that Contractor complies fully with all applicable procurement ethics restrictions including, but not limited to, restrictions against Contractor providing gifts or anything of economic value, directly or indirectly, to Enterprise Services’ employees.

3.12. WASHINGTON’S ELECTRONIC BUSINESS SOLUTION (WEBS). Contractor represents and warrants that Contractor is registered in Washington’s Electronic Business Solution (WEBS), Washington’s contract registration system and that, all of Contractor’s information therein is current and accurate and that throughout the term of this Contract, Contractor shall maintain an accurate profile in WEBS.

3.13. WASHINGTON’S STATEWIDE PAYEE DESK. Contractor represents and warrants that Contractor is registered with Washington’s Statewide Payee Desk, which registration is a condition to payment.

3.14. CONTRACT PROMOTION; ADVERTISING AND ENDORSEMENT. Contractor represents and warrants that Contractor shall use commercially reasonable efforts both to promote and market the use of this Contract with eligible Purchasers and to ensure that those entities that utilize this Contract are eligible Purchasers; provided, however, that Contractor may rely on the representations of any Purchaser and Enterprise Services regarding such eligibility. Contractor understands and acknowledges that neither Enterprise Services nor the State of Washington are endorsing Contractor’s Goods and/or Services or suggesting that such Goods and/or Services are the best or only solution to their needs. Accordingly, Contractor further represents and warrants that Contractor shall make no reference to Enterprise Services or the State of Washington in any promotional material without the prior written consent of Enterprise Services.

3.15. CONTINGENT FEES. Contractor represents and warrants that no person or selling agent has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established agents as defined in the Federal Acquisition Regulations.

3.16. FINANCIALLY SOLVENT. Contractor represents and warrants that Contractor has not commenced bankruptcy proceedings and that there are no judgment, liens, or encumbrances of any kind affecting title to any Goods and/or Services that are the subject of this Contract.

3.17. OPERATIONAL CAPABILITY. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor has the operational and financial capability to perform the Contract.

3.18. ACCESS EQUITY – CONTRACT REPORTING (if utilizing subcontractors). Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor, if utilizing subcontractors to perform this Contract, shall register and report monthly, as Contractor, through Access Equity, Washington’s secure online business diversity vendor management system (B2Gnow), which is managed by Washington’s Office of Minority and Women’s Business Enterprises (OMWBE), any payments to subcontractors pertaining to the Contract. Contractor further represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor shall use commercially reasonable efforts to ensure that such subcontractors also utilize Access Equity to verify such payment information as reported by Contractor.

4. QUALITY; WARRANTY; REMEDIES.

4.1. GOODS WARRANTY. Contractor warrants that, for a period of twelve (12) months from the date when the Goods are put into use, or eighteen (18) months after delivery of the Goods, whichever is later (“Goods Warranty Period”), the Goods: (a) are free from defects in design, material, and workmanship; (b) are fit and safe for the intended purposes and appropriate for the specified application(s) (if any); (c) are consistent with recognized industry quality standards; (d) comply with the requirements, specifications, drawings, standards, and descriptions included in this Contract; and (e) are produced and delivered in full compliance with applicable law (“Goods Warranty”). Contractor further warrants that it has good and marketable title to the Goods and shall keep Enterprise Services’property free of liens. If Enterprise Services receives notice of a lien caused by Contractor, Enterprise Services may withhold any payment otherwise due Contractor until Contractor submits proof, in a form satisfactory to Enterprise Services, that all lienable claims have been fully paid or waived.

4.2. GOODS REMEDY. If Goods do not comply with the Goods Warranty or any defects develop during the Goods Warranty Period under normal use, at Enterprise Services’ election, Contractor promptly shall remedy the defect by removing, repairing, correcting, or replacing, and/or reinstalling any defective Goods. Contractor’s Goods Warranty support shall include, at Contractor’s sole expense, all technical support, parts, materials and equipment, and labor, including freight and “in/out” costs required to address the defect. If, in Enterprise Services’ judgment, repair or replacement is inadequate, or fails of its essential purpose, Contractor shall refund the full amount of any payments that have been made. The rights and remedies of the parties under this warranty are in addition to any other rights and remedies of the parties provided by law or equity, including, without limitation, actual damages, and, as applicable and awarded under the law, to a prevailing party, reasonable attorneys’ fees and costs.

4.3. SERVICES WARRANTY. Contractor warrants that: (a) Services shall be performed in a timely, efficient, professional, and workmanlike manner; (b) all Contractor personnel assigned to perform Services shall have the necessary skill and training; and (c) Services shall be performed in a manner consistent with the standard of care in the industry (“Services Warranty”). The Services Warranty shall survive for a period of twelve (12) months after the date when Services are completed (“Services Warranty Period”).

4.4. SERVICES REMEDY. If Services do not comply with the Services Warranty or are in any manner found to be nonconforming during the Services Warranty Period, Contractor promptly shall remedy the non-conformance, or at Enterprise Services’ election, Contractor shall re-perform or correct the nonconforming Services at no additional cost to Enterprise Services or refund the amounts paid for the Services.

4.5. IT WARRANTY. Contractor warrants, that all hardware, software, and firmware associated with Goods or Services (“IT Goods” and “IT Services”, respectively) shall not: (a) contain any viruses, malicious code, Trojan horse, worm, time bomb, self-help code, back door, or other software code or routine designed to: (i) damage, destroy, or alter any software or hardware; (ii) reveal, damage, destroy, or alter any data; (iii) disable any computer program automatically; or (d) permit unauthorized access to any software or hardware; (b) contain any third party software (including software that may be considered free software or open source software) that (i) may require any software to be published, accessed, or otherwise made available without the consent of Enterprise Services, or (ii) may require distribution, copying, or modification of any software free of charge; and (c) infringe on any patent, copyright, trademark, or other proprietary or intellectual property right of any third party or misappropriate any trade secret of any third party (“IT Warranty”). The IT Warranty shall expire twelve (12) months after the date IT Goods are delivered or IT Services are complete, as applicable.

4.6. IT REMEDY. If IT Goods or IT Services do not comply with the IT Warranty, or if any defect or non-conformance develops during the IT Warranty Period, Contractor, at Enterprise Services’ election, promptly shall: (a) remedy the defect by removing, repairing, correcting or replacing, and/or reinstalling any defective IT Goods; (b) re-perform or correct the non-conforming IT Services at no additional cost to Enterprise Services; or (c) refund the amounts paid for IT Services and IT Goods.

4.7. FAILURE TO REMEDY. If Contractor does not remedy a defect or nonconformity within ten (10) calendar days after receipt of written notice from Enterprise Services, or if an emergency exists rendering it impossible or impractical for Enterprise Services to have Contractor provide a remedy, Enterprise Services may, without prejudice to any other rights or remedies available to it, make or cause to be made required modifications, adjustments, or repairs, or may replace Goods, Services, IT Goods, or IT Services, in which case Contractor shall reimburse Enterprise Services for its actual costs or, at Enterprise Services’ option, Enterprise Services shall offset the costs incurred from amounts owing to Contractor.

4.8. TECHNICAL SUPPORT. During any applicable warranty period, Contractor shall provide all warranty service and telephone support, including after-hour technical support, at its own cost. Contractor shall maintain a technical support hotline to address breakdowns and safety incidents.

5. SAFETY; SECURITY; CONTRACTOR REQUIREMENTS WHILE ON PREMISES. Contractor’s failure to comply with any of the requirements in this Section shall be cause for termination.

5.1. REGULATORY REQUIREMENTS/SAFETY. Goods and/or Services supplied by Contractor shall meet all applicable health, safety, and other federal, state, and/or local regulatory agency requirements applicable to the Goods and/or Services.

5.2. MATERIAL SAFETY DATA SHEETS. As applicable, Contractor shall provide Enterprise Services with all appropriate current Safety Data Sheets (“MSDS”) at the time of delivery of each shipment of Goods which requires such compliance and/or and for materials used by Contractor while performing Services pursuant to this Contract.

5.3. CLEAN-UP. If Contractor, its agents, employees, or subcontractors perform onsite Services, Contractor, at its cost, shall remove all excess materials, equipment, packaging, and garbage within the scope of its performance of Services and leave that portion of the premises in which the work was performed in a clean condition. Should Contractor fail to clean up a site after completion of work, Enterprise Services shall have the right to remove the materials and set off the cost of clean up against amounts owed to Contractor.

5.4. ACCIDENT AND INJURY REPORTING. If Contractor, its agents, employees, or subcontractors are present at Enterprise Services’ premises, Contractor promptly shall report in writing all injuries, accidents, property damage, near-miss incidents, or any claims regarding damages or injury involving Contractor, its agents, employees, or subcontractors occurring at such premises. Contractor agrees to cooperate and assist Enterprise Services in any investigation of incidents.

5.5. ON SITE REQUIREMENTS. As applicable, while on Enterprise Services’ premises or while interacting with Enterprise Services’ personnel, Contractor, its agents, employees, or subcontractors shall comply, in all respects, with Enterprise Services’ physical, fire, access, safety, health, and security requirements and not interfere with Enterprise Services’ operations. Contractor represents and warrants that Contractor, its agents, employees, or subcontractors who access Enterprise Services’ premises shall be adequately trained and at all times comply with Enterprise Services’ requirements.

5.6. IT SECURITY POLICIES. Contractor, its agents, employees, or subcontractors shall comply with all Washington State IT security policies and standards which shall be made available to Contractor upon request.

6. SUBCONTRACTORS.

6.1. CONTRACTOR RESPONSIBILITY. Notwithstanding any provision to the contrary, in the event Contractor elects to utilize subcontractors to perform this Contract, Contractor shall:

(a) Incorporate Contractor’s responsibilities under this Contract into its subcontracts;

(b) Be fully responsible for the performance of any such subcontractors (regardless of tier) and ensure that subcontractors comply with each and every Contractor obligation set forth in this Contract;

(c) Be the sole point of contact for Enterprise Services regarding all contractual matters;

(d) Ensure that such subcontractors are registered in WEBS;

(e) Ensure that such subcontractors comply with the Access Equity requirements applicable to subcontractors as set forth in this Contract; and

(f) Defend, indemnify, and hold Enterprise Services harmless in case of negligence, other tortious fault, or intentional misconduct by any such subcontractors (regardless of tier).

Prior to utilizing any subcontractor to perform this Contract, Contractor shall provide written notice to Enterprise Services’ contract administrator. For each such subcontractor, such notice shall confirm that such subcontractor is:

· Registered in WEBS; and

· Identified by Contractor in Access Equity.

6.2. ACCESS EQUITY. If Contractor utilizes subcontractors to perform this Contract, this section applies. In such circumstances, this Contract is subject to compliance tracking using Access Equity, Washington’s online business diversity vendor management system (B2Gnow), which is managed by Washington’s Office of Minority and Women’s Business Enterprises (OMWBE). Access Equity is web-based and can be accessed at https://omwbe.diversitycompliance.com/. User guides and documentation related to Contractor and subcontractor access to and use of Access Equity are available online at https://omwbe.wa.gov/access-equity-help-center. Contractor may contact the Contract Administrator for technical assistance in using the Access Equity system.

(a) Contract Payment Reporting & Verification. Contractor and any subcontractors utilized by Contractor to perform this Contract shall utilize Access Equity to report and confirm receipt of payments made to Contractor by Enterprise Services and to each subcontractor.

(b) Contractor Requirements.

1. Registration. Contractor, within fifteen (15) calendar days of the effective date of this Contract, shall register in Access Equity and enter all required subcontractor information. In the event Contractor subcontracts to perform this Contract after the effective date of this Contract, Contractor shall update Access Equity within fifteen (15) calendar days of such subcontract.

2. Training. Contractor, within twenty (20) calendar days of the effective date of this Contract (or later engagement of a subcontractor), shall complete the required Access Equity user training (two (2) one-hour online sessions).

3. Subcontractors. Contractor shall require any subcontractor(s) utilized by Contractor to perform this Contract to:

· Register in Access Equity;

· Complete the required Access Equity user training;

· Use Access Equity to verify the amount and date of receipt of each payment from Contractor or, if applicable, a higher tier subcontractor;

· Use Access Equity to report payments made by subcontractor to any lower tier subcontractor(s), if any, in the same manner as specified herein;

· Promptly respond to any requests or instructions from Contractor or system-generated messages to check or provide information in Access Equity; and

· When necessary, promptly coordinate with Contractor and/or Enterprise Services to resolve any discrepancies between reported and received payments.

4. Reporting. Contractor, quarterly shall report the amount and date of:

· All payments received from Enterprise Services; and

· All payments paid to subcontractor(s);

Provided, however, that Contractor shall mark as “final” and report final subcontractor payments no later than thirty (30) calendar days after final payment is due to subcontractor(s).

5. Monitor & Respond. Contractor shall monitor contract payments and respond promptly to any requests or instructions from Enterprise Services or system-generated messages to check or provide information in Access Equity.

6. Resolve Discrepancies. When necessary, promptly coordinate with subcontractor(s) and/or Enterprise Services to resolve any discrepancies between reported and received payments.

(c) Right to withhold Payment for Noncompliance. In the event Contractor or subcontractors, if any, fails to comply with this section, Enterprise Services may, in addition to any other lawful remedy, upon written notice of such noncompliance, withhold payment to Contractor until such time as such noncompliance is cured.

6.3. REPORTING. If Contractor is required to report to Enterprise Services, such report(s) shall include subcontractor data, by subcontractor, for any data that Contractor is required to report as well as a consolidated ‘rollup’ report combining Contractor and subcontractor data.

6.4. SUBCONTRACTOR REPRESENTATIONS AND CERTIFICATIONS. Any Contractor representations or certifications set forth in this Contract shall apply to subcontractors (at any tier) and Contractor shall not utilize any subcontractors (at any tier) who cannot provide such representations or certifications, excepting the certification to be registered with Washington’s Statewide Payee Desk, unless Enterprise Services shall pay such subcontractor directly.

7. SOFTWARE AND SUPPORT.

7.1. AUTHORIZED USERS. Subject to the terms of this Contract, Contractor grants Enterprise Services a renewable, irrevocable, nonexclusive, royalty-free, worldwide right for Enterprise Services and its employees, contractors, agents, or any other individuals or entities authorized by Enterprise Services (each an “Authorized User”) to access and use the solution. For the purposes of 11 U.S.C. § 365(n), the Contractor and Enterprise Services agree that this Contract constitutes a license grant of intellectual property in software form to Enterprise Services from Contractor. Enterprise Services agrees to license an initial number of Authorized Users as described in Exhibit A – Statement of Work. Enterprise Services is entitled to increase or decrease the number of Authorized Users on an as-requested basis at the license prices in accordance with Exhibit E - Prices for Goods/Services.

7.2. CHANGES IN FUNCTIONALITY. During the term of the Contract, Contractor shall not reduce or eliminate functionality in the Goods or Services. Where Contractor has reduced or eliminated functionality in the Goods or Services, Enterprise Services, at Enterprise Services’ sole election and in Enterprise Services’ sole determination, shall: (a) have, in addition to any other rights and remedies under this Contract or at law, the right to immediately terminate this Contract and be entitled to a return of any prepaid fees; or, (b) determine the value of the reduced or eliminated functionality and Contractor will immediately adjust the Goods or Services fees accordingly on a prospective basis. If improved features or versions (e.g., patches, bug fixes, updates or releases) are made available to other Goods and Services users at no additional cost, Contractor also shall make such improved features or versions available to Enterprise Services at no additional cost and with the same rights, obligations and limitations.

7.3. DOCUMENTATION. Contractor shall provide the documentation for the Goods and Services (“Documentation”) that accurately and completely describes the functions and features, including all subsequent revisions thereto. The Documentation shall be understandable by a typical end user and shall provide Authorized Users with sufficient instructions such that an Authorized User can become self-reliant with respect to access and use of the Goods and Services. Enterprise Services shall have the right to make any number of additional copies of the Documentation at no additional charge.

7.4. DATA OWNERSHIP AND USE. Enterprise Services’ data (“Data”) shall include data collected, used, processed, stored, or generate as the result of the use of the Goods and Services. Data is and shall remain the sole and exclusive property of Enterprise Services. Contractor is provided a limited, non-exclusive license to access and use Data solely for performing its obligations under the Contract. Contractor shall: (a) keep and maintain Data in strict confidence and as further described in this Contract and applicable law to avoid unauthorized access, use, disclosure, or loss; and, (b) not use, sell, rent, transfer, distribute, or otherwise disclose or make available Data for Contractor’s own purposes or for the benefit of anyone other than Enterprise Services without Enterprise Services’ prior written consent.

7.5. DATA BACKUP. As part of the Goods and Services, Contractor is responsible for maintaining a backup of Data and for an orderly and timely recovery of such Data in the event that the services may be interrupted. Contractor shall maintain a contemporaneous backup of Data that can be recovered within two (2) hours at any point in time.

7.6. EXTRACTION OF DATA. Contractor shall, within one (1) business day of Enterprise Services’ request, provide Enterprise Services, without charge and without any conditions or contingencies whatsoever (including but not limited to the payment of any fees due to Contractor), an extract of the Data in the format specified by Enterprise Services.

7.7. RETURN OF DATA. Sixty (60) days prior to the expiration date of this Contract, or upon notice of termination of this Contract, Contractor, without charges and without any conditions or contingencies, shall assist Enterprise Services in extracting and/or transitioning all Data in the format specified by Enterprise Services. After all Data is returned to Enterprise Services, Contractor shall within sixty (60) days delete all Data from all Contractor’s systems in compliance with procedures established by the National Institute of Standards and Technology (NIST). Within the same time period, Contractor shall certify to Enterprise Services that Contractor has destroyed all Enterprise Services’ Data disclosed to it under this Contract.

7.8. SECURITY COMPLIANCE. Contractor is responsible for establishing an information security program and maintaining physical, technical, administrative, and organizational safeguards, that comply with: (a) applicable industry standards and guidelines; (b) American Institute of Certified Public Accountants (AICPA) System and Organization Controls (SOC) 1 [to be finalized based on bid response]; (c) SOC 2 Type I report in accordance with AICPA AT 101; and (d) Washington State IT security policies and standards: https://watech.wa.gov/policies.

7.9. ANNUAL SECURITY CERTIFICATIONS. Contractor will, at the commencement of this Contract and annually thereafter provide Enterprise Services the following reports and certifications: (a) AICPA Statement of Standards for Attestation Engagement (SSAE) No. 18 System and Organization Controls (SOC) 1 Type II fiscal year cycle audit report [to be finalized based on bid response]; (b) SOC 2 Type I report in accordance with AICPA AT 101; and (c) attestation that Contractor’s Goods and Services are in compliance with Washington State IT policies and standards as previously asserted during the Competitive Solicitation. Enterprise Services may accept, at its sole discretion, alterative reports, audits or reporting formats which Enterprise services determines to be equivalent or better to the reports and certifications described herein.

7.10. DATA BREACH. Contractor must have an incident response process that follows National Institute of Standards and Technology (NIST) standards and includes breach detection, breach notification and breach response. Upon discovery or reasonable belief of any access, destruction, loss, theft, use or disclosure of Enterprise Services’ Data by an unauthorized party (“Data Breach”), Contractor shall notify Enterprise Services by the fastest means available and also in writing. Contractor shall provide such notification within forty-eight (48) hours after Contractor reasonably believes there has been such a Data Breach. Contractor’s notification shall identify:

(a) The nature of the Data Breach;

(b) The Data accessed, used or disclosed;

(c) The person(s) who accessed, used, disclosed and/or received Data (if known);

(d) What Contractor has done or will do to quarantine and mitigate the Data Breach; and

(e) What corrective action Contractor has taken or will take to prevent future Data Breaches.

Contractor shall quarantine the Data Breach, ensure secure access to Data, and restore Services as needed to comply with terms and conditions of this Contract. Contractor shall conduct an investigation of the Data Breach and shall share the report of the investigation with Enterprise Services. In the event of the Data Breach, Contractor agrees to comply with all applicable state and federal statutory provisions, including but not limited to Revised Code of Washington (RCW) 19.255.010 and RCW 42.56.590. Where notifications are required to the public or regulators, Contractor shall coordinate and cooperate with Enterprise Services in the development of a communication plan, and promptly and at no cost, provide advance copies of any notifications for Enterprise Services review before disseminating. If a Data Breach occurs and is found to be the result of Contractor’s acts, omissions or negligence, Contractor shall assume complete responsibility for notification of affected parties, and be liable for all associated costs incurred by Enterprise Services in responding to or recovering from the Data Breach.

7.11. TECHNICAL AUDIT. Upon advance written request, Contractor agrees that Enterprise Services or its designated representative shall have reasonable access to the Goods and Services’ operational documentation, records and databases, including online inspections. Contractor shall allow Enterprise Services reasonable access to Goods and Services’ security logs, latency statistics, and other related operational data related to this Contract, at no cost to Enterprise Services. After any significant Data loss, Contractor will at its expense have an independent, industry-recognized third party perform an information security audit. This does not apply to data loss resulting from interruptions in the Services stemming from Enterprise Services’ computers, network hardware, internet connectivity, or other elements owned or controlled by Enterprise Services that are reasonably required to use Services. The audit results shall be shared with Enterprise Services within seven (7) days of Contractor’s receipt of such results. Upon Contractor receiving the results of the audit, Contractor will provide Enterprise Services with written evidence of planned remediation within thirty (30) days and promptly modify its security measures in order to meet its obligations under this Contract.

7.12. NO EFFECT OF CLICK-THROUGH TERMS AND CONDITIONS. Where an Authorized User is required to “click through” or otherwise accept or made subject to any online terms and conditions in using the Services, such terms and conditions are not binding and shall have no force or effect as to the Services or this Contract.

[Sections 7.13 to 7.17 will be finalized based on the information submitted by the bidder during the Competitive Solicitation.]

7.13. AVAILABILITY SERVICE LEVEL STANDARD. Services shall be available as specified in Exhibit D – Service Level Agreement.

(a) If Services’ monthly availability averages less than 99.999% for the above time period (excluding agreed-upon maintenance downtime), Enterprise Services shall be entitled to apply Performance Credit equivalent to ten percent (10%) of Services fees (as calculated on an annual basis) for each one (1) percent under 99.999% availability average.

(b) If Services monthly availability averages less than 99.999% (excluding agreed-upon maintenance downtime), for three (3) or more months in a rolling twelve-month period, Enterprise Services may terminate the Contract for material breach subject to Section 12 of this Contract.

7.14. FAILURE TO MEET SERVICE LEVEL STANDARDS. In the event Contractor does not meet the expected standard of performance for Services measurement (“Service Level Standard”), Contractor shall: (a) owe to Enterprise Services any applicable portion of the Services fees, in the form of liquidated damages, and not as a penalty, that is due to Enterprise Services as a result of a Service Level Standard not being achieved (“Performance Credit”); and (b) use its best efforts to ensure that any unmet Service Level Standard is subsequently met and impact and duration of any outage, interruption, or degradation of Services are minimized.

7.15. TECHNICAL SUPPORT SERVICE LEVEL STANDARD.

(a) Technical Support. Contractor will provide to Enterprise Services telephone and email support (“Technical Support”) from 6:00 AM to 6:00 PM PST Monday through Friday. Authorized Users will make Technical Support requests by calling, emailing Contractor’s Technical Support staff or by submitting a request via Contractor’s customer services web portal. The Technical Support staff shall assign to the request the Problem Severity Level indicated by the requestor. Contractor must respond to a Technical Support request made by an Authorized User within the indicated Request Response Time and must resolve a Technical Support request made by an Authorized User within the indicated Request Resolution Time.

Problem Severity Level 1:

(a) Services, as a whole, are non-functional or are not accessible;

(b) unauthorized exposure or corruption of all or part of Enterprise Services’ Data.

Request Response: 30 minute Request Resolution: 2 hours

Problem Severity Level 2:

Significant and/or ongoing interruption of an Authorized User’s use of a critical function (as determined by the Authorized User).

Request Response: 1 hour Request Resolution: 4 hours

Problem Severity Level 3:

(a) minor and/or limited interruption of an Authorized User’s use of non-critical function (as determined by the Authorized User) of the Service; or

(b) problems which are not included in Problem Severity Level 1 or 2.

Request Response: 8 hour Request Resolution: 24 hours

Problem Severity Level 4:

(a) general questions pertaining to the Service; or

(b) problems which are not included in Problem Severity Level 1, 2 or 3.

Request Response: 8 hour Request Resolution: 48 hours

(b) If a Problem Severity Level 1 or 2 request cannot be corrected to the reasonable satisfaction of the requestor within the Request Resolution Time after the requestor makes the initial request for Technical Support, Contractor will: (a) immediately escalate the request to Contractor’s management; (b) take and continue to take the actions which will most expeditiously resolve the request; (c) provide a hourly report to the requestor of the steps taken and to be taken to resolve the request, the progress to correct, and the estimated time of correction until the request is resolved; and (d) provide increasing levels of technical expertise and Contractor management involvement in finding a solution to the request until it has been resolved. If percentage of requests that meet the Request Resolution Time Service Level Standard is less than 99.0% of total number of requests, Enterprise Services shall be entitled to apply Performance Credit equivalent to five percent (5%) of Services fees (as calculated on a quarterly basis for the reporting quarter) for each full one (1) percent under 99.0% standard.

(c) If a Problem Severity Level 3 or 4 request cannot be corrected to the reasonable satisfaction of the requestor within the Request Resolution Time after the requestor makes the initial request for Technical Support, at the sole election of the requestor: (a) Contractor will work continuously to resolve the request; or (b) requestor and Contractor will mutually agree upon a schedule within which to resolve the request. If percentage of requests that meet the Request Resolution Time Service Level Standard is less than 99.0% of total number of requests, Enterprise Services shall be entitled to apply Performance Credit equivalent to one percent (1%) of Services fees (as calculated on a quarterly basis for the reporting quarter) for each full one (1) percent under 99.0% standard.

7.16. SERVICE LEVEL STANDARDS REPORTING AND AUDIT. On an annual basis, at least thirty days prior to the Contract anniversary dates, Contractor shall provide reports to Enterprise Services describing the performance of the Services and of the Contractor as compared to the Service Level Standards as set forth herein. The reports shall be in a form agreed-to by Enterprise Services, and contain no less than the following information: (a) actual performance compared to the Service Level Standards; (b) time, severity level, description, response and resolution time for each incident logged during the year; (c) the cause or basis for not meeting the Service Level Standard; (d) specific remedial actions Contractor has undertaken or will undertake to ensure that the Service Level Standard will be achieved; and (e) any Performance Credit due to Enterprise Services. Where Contractor fails to provide a report for a service level in the applicable timeframe, the Service Level shall be deemed to be completely failed for the purposes of calculating Performance Credits.

7.17. MAINTENANCE. Contractor shall provide bug fixes, corrections, modifications, enhancements, upgrades and new releases to the Services to ensure: (a) the functionality of the Services available to Authorized Users is in accordance with this Contract, the Documentation and Exhibit B_– Performance Requirements and Exhibit A_ – Statement of Work; and (b) the Services comply with the most current industry, security and accessibility standards.

(a) Required Notice of Maintenance. Unless otherwise agreed to by Enterprise Services on a case-by-case basis, Contractor shall provide no less than thirty (30) calendar days’ prior written notice to Enterprise Services of all non-emergency maintenance to be performed on the Services, such written notice shall include a detailed description of maintenance to be performed and impact of the maintenance to Enterprise Services. For emergency maintenance, Contractor shall provide as much prior notice to Enterprise Services as commercially practicable and shall provide a detailed description of all maintenance performed and impact to Enterprise Services no greater than one (1) calendar day following the implementation of emergency maintenance.

(b) Acceptance of Non-Emergency Maintenance. Unless as otherwise agreed to by Enterprise Services on a case-by-case basis, for non-emergency maintenance, Enterprise Services shall have a ten (10) business day period to test any maintenance changes prior to Contractor introducing such maintenance changes into production (the “Maintenance Acceptance Period”). In the event that Enterprise Services rejects, for good cause, any maintenance changes during the Maintenance Acceptance Period, Contractor shall not introduce such rejected maintenance changes into production.

8. DELIVERY & INSTALLATION.

8.1. DELIVERY REQUIREMENTS. Contractor must ensure that the Goods and/or Services are delivered or provided as required by this Contract, or as otherwise mutually agreed in writing between Enterprise Services and Contractor. The following apply to all deliveries:

(a) Contractor shall make all deliveries to the applicable delivery location specified herein. Such delivers shall occur during Enterprise Services’ normal work hours and within the time period mutually agreed in writing between Contractor and Enterprise Services.

(b) Contractor shall ship all Goods and/or Services purchased pursuant to this Contract, freight charges prepaid by Contractor, FOB Enterprise Services’ specified destination with all transportation and handling charges included. Contractor shall bear all risk of loss, damage, or destruction of the Goods and/or Services ordered hereunder that occurs prior to delivery and installation, except loss or damage attributable solely to Enterprise Services’ fault or negligence.

(c) All packing lists, packages, instruction manuals, correspondence, shipping notices, shipping containers, and other written materials associated with this Contract shall be identified by the Contract number set forth on the cover of this Contract.

8.2. RECEIPT AND INSPECTION OF GOODS AND/OR SERVICES. Goods and/or Services purchased under this Contract are subject to Enterprise Services’ reasonable inspection, testing, and approval at Enterprise Services’ destination. Enterprise Services reserves the right to reject and refuse acceptance of Goods and/or Services that are not in accordance with this Contract. If there are any apparent defects in the Goods and/or Services at the time of delivery, Enterprise Services promptly shall notify Contractor. At Enterprise Services’ option, and without limiting any other rights, Enterprise Services may require Contractor to repair or replace, at Contractor’s expense, any or all of the damaged Goods and/or Services or, at Enterprise Services’ option, Enterprise Services may note any damage to the Goods and/or Services on the receiving report, decline acceptance, and deduct the cost of rejected Goods and/or Services from final payment.

9. INVOICING & PAYMENT.

9.1. CONTRACTOR INVOICE. Contractor shall submit properly itemized invoices to Enterprise Services’ designated invoicing contact for Goods and/or Services delivered under this Contract. Such invoices shall itemize the following:

(a) Contract No. K ____;

(b) Contractor name, address, telephone number, and email address for billing issues (i.e., Contractor Customer Service Representative);

(c) Contractor’s Federal Tax Identification Number;

(d) Date(s) of delivery;

(e) Applicable Goods and/or Services;

(f) Invoice amount; and

(g) Payment terms, including any available prompt payment discounts.

Contractor’s invoices for payment shall reflect accurate Contract prices. Invoices shall not be processed for payment until receipt of a complete invoice as specified herein.

9.2. PAYMENT. Enterprise Services’ obligation to pay invoices is subject to receipt of a timely and accurate invoice and conforming Goods and/or Services. Unless Contractor has provided a prompt payment discount set forth in Exhibit E – Prices for Goods/Services, Enterprise Services’ payment is due within thirty (30) days of invoice. Enterprise Services retains the right of setoff for any amount due or owing to Enterprise Services. Enterprise Services may make payments electronically (e.g., ACH payments). Contractor shall provide information necessary to facilitate electronic payments. If Enterprise Services fails to make timely payment(s), Contractor may invoice Enterprise Services in the amount of one percent (1%) per month on the amount overdue or a minimum of $1. Payment shall not be considered late if a check or warrant is mailed within the time specified.

9.3. PROJECT IMPLEMENTATION FEES. Enterprise Services shall pay to Contractor the project implementation fees as set forth in Exhibit E - Prices for Goods/Services pursuant to the payment milestones set forth therein. Notwithstanding any provision to the contrary, Contractor’s compensation to implement the Services is contingent upon Enterprise Services’ approval of Contractor’s satisfactory completion of the deliverables and milestones set forth in Exhibit A - Statement of Work. The parties understand and agree that this is a performance-based contract. Accordingly, in regard to implementation of the Services, Contractor shall be paid pursuant to the milestone schedule set forth in Exhibit A - Statement of Work; Provided, however that Enterprise Services shall retain ten percent (10%) of the total project implementation fees until sixty (60) days after the final written acceptance by Enterprise Services of the successful launch of the Services.

9.4. ANNUAL SUBSCRIPTION FEES. Upon final written acceptance by Enterprise Services of Contractor’s successful launch of the Services, and annually thereafter during the term of this Contract, Enterprise Services shall pay to Contractor the subscription fees for the solution as set forth in Exhibit E - Prices for Goods/Services. Contractor shall not include or impose any additional fees or charges for the solution.

9.5. OVERPAYMENTS. Contractor promptly shall refund to Enterprise Services the full amount of any erroneous payment or overpayment. Such refunds shall occur within thirty (30) calendar days of written notice to Contractor; Provided, however, that Enterprise Services shall have the right to elect to have either direct payments or written credit memos issued.