24.1 IT Specific Supplemental Terms and Conditions Template.doc

STATE OF ILLINOIS

it specific supplemental terms and conditions

Illinois Department of Children and Family Services

Title of Contract DCFS PO#XX – BidBuy # B-XX

INFORMATION TECHNOLOGY SPECIFIC SUPPLEMENTAL TERMS AND CONDITIONS

Table of Contents

INFORMATION TECHNOLOGY

I {Insert Business Name} have read, understand, and agree to all terms and conditions presented in this document, or have provided all exceptions and/or additional provisions in Packet 6 of my Offer using the Form found in Section 3 G. of the RFP, and agree to negotiate the Contract within 90 days of receiving written notification from the Department. Failure to sign and return this document shall result in the Offer being found non-responsive and rejected.

Signature of Authorized Representative:

Date:

Written Name:

Title:

H 41.

Purpose and Scope

42.

Definitions

4A.

Acceptance

4B.

Agent

4C.

Application

4D.

Application User(s)

4E.

Component

4F.

Computer Virus

4G.

Confidential Information

4H.

Content

5I.

Deliverable

5J.

Documentation

5K.

Licensed Services

5L.

Maintenance Period

5M.

Maintenance Services (or “Maintenance” or “Software Maintenance”)

5N.

Party

5O.

Requirements

5P.

Service(s)

5Q.

Service Level Agreements (SLAs)

5R.

Software

6S.

Software Publisher

6T.

Solution

6U.

Supplier

6V.

Update

6W.

Warranty Period

6X.

Work Product

63.

Term and termination

6A.

Contract Kick-Off Meeting

6B.

Contract Closeout

74.

Federal Funds

75.

supplier responsibilities

7A.

Standard Application Responsibilities

76.

State responsibilities

77.

SOFTWARE LICENSE/Licensed services

8A.

License Grant

8B.

License Type

9C.

No Subsequent, Unilateral Modification of Terms by Supplier (“Shrink Wrap”)

9D.

Description of Licensed Services

98.

RIGHTS TO WORK PRODUCT

9A.

Work Product

10B.

Ownership

10C.

Pre-existing Work

10D.

Return of Materials

109.

Proprietary Rights

10A.

Supplier’s Proprietary Rights

10B.

The State Requirements and License Restrictions

11C.

The State Proprietary Rights

1110.

GENERAL Warranty

11A.

Interoperability Warranty

11B.

Documentation and Deliverables

12C.

Malicious Code

12D.

Open Source

12E.

Degradation and Security Vulnerabilities

12F.

Operating System and Software Supportability

12G.

Access to product and Passwords

1311.

DELIVERY AND INSTALLATION

13A.

Scheduling

13B.

Deployment of Solution

13C.

Documentation of Software Configuration

13D.

Data Backup

1312.

acceptance

13A.

Software and Deliverable Acceptance Criteria

14B.

Software and Deliverable Cure Period

14C.

Complete Solution Acceptance Criteria

14D.

Complete Solution Cure Period

14E.

Federal Review

1413.

WARRANTY AND MAINTENANCE SERVICES

14A.

Known Defects

15B.

New Releases

15C.

Coverage

15D.

Solution Evolution

15E.

Escalation and De-escalation Procedures

15F.

Remedies

1514.

OrderING PROCEDURE

1515.

DOCUMENTATION

1616.

THE STATE self-sufficiency

1617.

Transition Assistance

1618.

ESCROW AgreeMENT

16A.

Escrow Account

17B.

Materials

17C.

Verification

17D.

Escrow Warranty

1819.

CYBER SECURITY LIABILITY INSURANCE

1820.

Indemnification and LIABILITY

18A.

Indemnification of Data Breach

18B.

Claim Resolution

18C.

Liability (if applicable)

1921.

SECURITY COMPliance

19A.

Risk Assessment, Data Classification, System Categorization Process, and System Security Plan

19B.

State and Federal Laws

20C.

Safeguards

20D.

DoIT Security Requirements

2322.

Data Access

2323.

BANKRUPTCY

2324.

GenerAL provisions

23A.

Advertising and Use of Proprietary Marks

23B.

Captions/Headings

2325.

acceptable use policy (if aPPLICABLE)

2426.

Third-Party Terms and Conditions

1. Purpose and Scope

The following clauses are added to the State of Illinois – Contract Number . In the event of conflict between these supplemental terms and the State’s standard terms and conditions these supplemental terms and conditions shall control. In the event of a conflict between these supplemental terms and conditions and the Vendor’s or Vendor’s subcontractors’ terms and conditions these supplemental terms and conditions shall control.

2. Definitions

A. Acceptance

Successful delivery and performance by the Supplier of its contractual commitments to implement the solution for the State, including completed and successful Acceptance testing and quality control in conformance with the Requirements. The State reserves the right to contract with a third-party for Acceptance testing and quality control, and the State reserves right for final determination of Acceptance. The Supplier agrees to cooperate and provide complete transparency to any third-party of the State’s choosing.

B. Agent

Any independent third-party or unit of government under contract or agreement with the State.

C. Application

Applications is software or the combination of multiple software as defined in this Contract, and intellectual data, proprietary information and Documentation contained and applicable to Licensed Services hosted and supported by Supplier under the Contract, as described in the IT Specific Supplemental Terms and Conditions, including any Updates, enhancements, and replacements to the Application.

D. Application User(s) Application Users shall include employees of the State, independent contractors engaged by the State, or entities contracting with the State for services, as well as suppliers, members of the general public, and other entities with whom the State may find it necessary or desirable to process or communicate electronically in pursuit of its business.

E. Component

Software or Deliverable delivered by Supplier under this Contract.

F. Computer Virus

Any malicious code, program, 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.

G. Confidential Information

Any confidential or proprietary information of a Party that is disclosed in any manner, including oral or written, graphic, machine readable or other tangible form, to any other Party in connection with or as a result of discussions related to this Contract, and which at the time of disclosure either (i) is marked “Confidential” or “Proprietary”; (ii) is otherwise reasonably identifiable as the confidential or proprietary information of the disclosing Party; (iii) under the circumstances of disclosure should reasonably be considered as confidential or proprietary information of the disclosing Party; (iv) is identifiable or should be reasonably considered as protected health information; or (v) any personally identifiable information, including information about the State, its employees, contractors, and customers, that is protected by statute or other applicable law. A request for confidential treatment will not supersede the State’s legal obligations under Illinois Freedom of Information Act (FOIA) (5 ILCS 140).

H. Content

Any data, including the selection, arrangement and organization of such data, entered, uploaded to the Application, or otherwise provided to Supplier by the State or by any Application User, and any Software and related Documentation, from whatever source, provided by the State or Application User to Supplier in connection with this Contract.

I. Deliverable

The tangible embodiment of the work performed or Services, Maintenance Services, Licensed Services, Solution, Component, Software, Application, plans, reports, data, product, Supplier product and Updates provided by the Supplier in fulfilling its obligations under the Contract, including the development or creation of Work Product, if Work Product is authorized under the Contract.

J. 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 the State and its Agents to make productive use of the Application, Software, Solution, Component, product, Service, Licensed Services or Deliverable, and to implement and develop self-sufficiency with regard to the Application, Software, Solution, Component, product, Service, Licensed Services or Deliverable, provided by Supplier in fulfilling its obligations under the Contract.

K. Licensed Services

The operation of the Application and the necessary operating system software, hardware and utilities on Supplier’s host computer system, furnishing Supplier product to Application Users, storing Content and making the Application, Content, and Supplier product available to Application User(s).

L. Maintenance Period

The time period in which Maintenance Services shall be provided.

M. Maintenance Services (or “Maintenance” or “Software Maintenance”)

If authorized by the Contract, means those services, preventive and remedial, provided or performed by Supplier under the Contract to ensure continued operation of the Solution, Software or product, including Software Updates. Maintenance Services shall include support services. Software Maintenance Services may include the development of Work Product, if so, authorized in the Contract. Maintenance Services may be further defined in Service Level Agreements and incorporated into this Contract.

N. Party

The State or Supplier.

O. Requirements

The functional, performance, operational, compatibility, Acceptance testing criteria and other parameters and characteristics of the product, Software, Solution, Component, Service(s), Application and Licensed Services and Deliverables, as authorized by the Contract and/or as set forth in Attachment(s), Exhibit(s), Statements of Work (SOW), and/or Appendices and/or such other parameters, characteristics, or performance standards that may be agreed upon in writing by the Parties.

P. Service(s) Means the furnishing of labor, time, or effort by a contractor, not involving the delivery of a specific product other than reports or supplies that are incidental to the required performance.

Q. Service Level Agreements (SLAs) 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 shall be defined and attached to this Contract.

R. Software

Software is programs, code, object code, and configuration files, other asset files, and other related data provided by Supplier under the Contract as a component(s) of any Deliverable or Component of any Solution, or Component of any Application and any subsequent modification of such programs, code, object code, and configuration files, other asset files, and other related data, excluding Work Product. For COTS (boxed) software, means the programs, code, object code, and configuration files, and other asset files, and any subsequent releases, provided by Supplier under this Contract. For Software Maintenance Contracts Software also includes the programs, code, object code, and configuration files, other asset files, and other related data provided by Supplier under the Contract in the form of Software Updates.

S. Software Publisher

Means the licensor of the Software provided by Supplier under this Contract, if Software is authorized under the Contract.

T. Solution

The Supplier’s contractually committed technical approach for solving a technology business objective and associated Requirements as defined and authorized by the scope of the Contract. Solution means all Supplier and Supplier’s third-party providers’ Components making up the Solution, including but not limited to Software, Application, configuration, design, implementation, Supplier-developed interfaces, Services, documentation, and Work Product.

U. Supplier

Means the Vendor(s) and any of its Affiliates (i.e., an entity that controls, is controlled by, or is under common control with Vendor).

V. Update

As applicable, any update, modification, new release or new version of the Software, System Software, Application, Solution, Documentation or Supplier product that Supplier makes generally available to its customers at no additional cost. Software Updates include, but are not limited to, patches, fixes, upgrades, enhancements, improvements, or access mode, including without limitation additional capabilities to or otherwise improve the functionality or security, increase the speed, efficiency, or base operation of the Software.

W. Warranty Period

The period, post acceptance, during which the Vendor shall provide all necessary resources to fix problems, defects and complaints regarding inferior product quality (work, service), which are due to a production fault. During the warranty period the Vendor must fix all software defects within the agreed time limit. The warranty period shall be 30 days for Statement of Work(s), 60 days for Release(s), and 90 days for the Solution.

X. Work Product

Inventions, combinations, machines, methods, formula, techniques, processes, improvements, software designs, computer programs, strategies, specific computer-related know-how, data and original works of authorship (collectively, the "Work Product") discovered, created, or developed by Supplier, or jointly by Supplier and the State in the performance of this Contract. Work Product shall not include configuration of software.

3. Term and termination

A. Contract Kick-Off Meeting

Within 31 days of Contract execution, Supplier may be required to attend a contract orientation meeting, along with the State contract manager/administrator, the State and/or other agency project manager(s) or authorized representative(s), technical leads, the State representatives, as applicable, 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. The Supplier is required to have its assigned engagement manager and a representative from its contracts department in attendance. The time and location of this meeting will be coordinated with Supplier and other meeting participants by State personnel.

B. Contract Closeout

Prior to the contract’s expiration date, Supplier shall provide State contract close out documentation and shall complete, sign and return to the appropriate State personnel within 90 days of receipt. This documentation includes but is not limited to: Patent/Royalty Certificate, Tangible Property/Asset Certificate, Escrow Certificate, BEP compliance, Completion Certificate, and Final Payment Certificate. Supplier is required to process these as requested to ensure completion of close-out administration and to maintain a positive performance reputation with the State. Any closeout documentation not received within 30 days of Supplier’s receipt of the State’ request will be documented in the contract file as Supplier non-compliance. Supplier’s non-compliance may affect any pending payments due the Supplier, including final payment, until the documentation is returned.

4. Federal Funds This Contract is supported in part with federal funds. No federal funds received under this contract shall be paid to any party that is a party excluded from Federal Procurement and Non-procurement Programs. A SAM.Gov check will be conducted on Vendor and all identified subcontractors prior to allowing Party to begin billable work.

5. supplier responsibilities

Y. Standard Application Responsibilities

Unless otherwise indicated in the requirements section of the Contract, Supplier shall acquire and maintain, at no charge to the State, the hardware and software required to host the Application(s). The hardware and software on which the Application(s) is hosted will be maintained in good operating condition, consistent with or exceeding generally accepted industry practices and procedures. In addition:

Supplier may collect user-specific data only as necessary to provide the services authorized under the Contract. No information regarding the State or any Application User shall be disclosed, provided, rented or sold to any third-party for any reason unless required by law or regulation or by an order of a court of competent jurisdiction. This obligation shall extend beyond the term of the Contract.

6. State responsibilities

Unless otherwise agreed and as applicable, the State or its Agent, or an Application User, will be responsible for input of Content into Supplier’s Application and the State or its Agent will be responsible for keeping said Content current and accurate. Supplier will have no responsibility for assisting the State in creating, modifying or inputting the Content, unless specified in this Contract.

If Supplier issues unique USERIDs and passwords to an Application User:

1. The State is responsible for protecting said passwords and for any authorized and unauthorized use made of the passwords. The State will fully cooperate with law enforcement authorities in the detection and prosecution of illegal activity related to unauthorized use of the Licensed Services.

2. The State shall have the right to add, activate, change access for, or disable USERIDs at its sole discretion. The State shall designate administrators who will be authorized to add, activate, change access for or disable USERIDs.

3. The State and Application Users of this Contract agree to notify Supplier of any degradation, potential breach, or breach of the Content and Application privacy or security as soon as possible after discovery. The State agrees to provide Supplier the opportunity to participate in the investigation of the reported situation. However, the State reserves all rights to direct the investigation, and determine final action.

7. SOFTWARE LICENSE/Licensed services The State will consider Supplier-provided language ONLY when Supplier is a reseller of the Software and the Software Publisher requires an End User License Agreement (EULA) or similar documents. In such case, Supplier is advised that the State may require an addendum to such EULA to address terms and conditions in such EULA with which the State, as a government entity, by law or by policy, cannot agree, the license shall be held by the State.

4. In the event of a conflict between this Contract and the EULA, this Contract shall control;

5. In the event of a material, unilateral revision to the EULA by Supplier that substantially impairs the ability of the State from its lawful use of the Service, the State shall have the option to;

a. request that the revision be rescinded;

b. request that the revision be waived as to the State receiving Services under this EULA;

If Supplier fails to a grant a request by the State per a. or b. above, within thirty (30) days of receiving the request, then the State may, at its option, terminate this Contract, in whole or in part, without termination liability and shall receive refund of any paid but unused portion of the license fees.

Z. License Grant

Supplier grants to the State 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 or new versions, in accordance with the terms and conditions set forth herein and subject only to the limitations and/or restrictions explicitly set forth in this Contract. It is expressly understood that “perpetual” license rights shall commence upon delivery of the Software to the State and shall exist in perpetuity unless otherwise terminated in accordance with the applicable provisions of the Contract. The Software is the property of Software Publisher, and no title or ownership of the Software or any of its parts, including Documentation, shall transfer to the State.

The State shall 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.

The State may allow access to the Software by third-party Suppliers/Purchase of Service (POS) agencies who are under contract with the State to provide services to or on behalf of the State, or by other entities as required for conducting the business of government. Access includes loading or executing the Software on behalf of the State.

The license fee includes all environments developed for this Contract, which consists of the right to use the Software for non-production and production purposes.

In the event that all the State’s copies of the Software, including all backup copies, are destroyed, irreparably damaged or otherwise lost due to fire, explosion, sabotage, flood or other disaster, Supplier shall provide to the State, at no additional cost, replacement copies of the Software and Documentation. Nothing contained in this Section shall oblige Supplier to replace or assist in the recovery of data under the sole control of the State lost concurrent with the loss of the Software.

The State 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. The State agrees that any copies of the Software or Documentation that it makes under this Contract shall bear all copyright, trademark and other proprietary notices included therein by Supplier. The State may add its own copyright or other proprietary notice, or copyright or other proprietary notice of the State, to any copy of the Software or Documentation, which contains modifications to which the State has ownership rights pursuant to this Contract.

Except as expressly authorized, the State shall not distribute the Software to any third-party not under contract with the State 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.

AA. License Type

All licenses granted, regardless of the type, include all uses set forth above. License type may vary by Software product and shall be set forth in this Contract. The license types may include but are not limited to those defined herein.

1. Designated Central Processing Unit (CPU) License

The license(s) granted under this Section authorizes use of the Software only on the number of CPU(s) identified by the State. The State may transfer the Software to a different machine to the extent that the license price for such new CPU(s) is equivalent to the CPU(s) initially licensed. If the licensed CPU is inoperative because of (i) malfunction, (ii) performance of maintenance, or (iii) modification to the licensed CPU, or (iv) because the Software is being transferred to another CPU, the State may use the Software on a replacement CPU as long as required by the mentioned conditions.

2. Concurrent User License The license(s) granted under this Section authorizes use of the Software on any system based on the total number of Concurrent Users. The number of “Concurrent Users” is defined as the maximum number of concurrent Sessions connected at a given point in time. A “Session” is defined as an active user executing the Software. The State will specify an initial number of Concurrent User licenses in the Contract. The State may increase the number of Concurrent User licenses by means of a written contract modification to the Contract using current contract pricing.

3. Site License The license(s) granted under this Section authorizes use of the Software on any system located at the “Site” as such term is defined in the Contract.

4. Enterprise Wide License 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 Contract, without limitation as to the quantity or location or project.

C. No Subsequent, Unilateral Modification of Terms by Supplier (“Shrink Wrap”)

Notwithstanding any other provision or other unilateral license terms which may be issued by Supplier after the Effective Date of this Contract, and irrespective of whether any such provisions have been proposed prior to or after the issuance of an order for a Solution, the components of which are licensed under this Contract, or the fact that such other agreement may be affixed to or accompany Software upon delivery (“shrink wrap”), the terms and conditions set forth herein shall supersede and govern licensing and delivery of all products and services hereunder.

D. Description of Licensed Services During the term of this Contract, Supplier hereby agrees to host the Application(s) listed and described and specified in the Contract on servers owned, operated, housed, and maintained by Supplier and shall make such Application(s) available to the State designated Application Users through the Internet. Supplier has acquired any and all license rights in the Application(s) necessary and appropriate for Supplier to provide the Licensed Services as obligated by the Contract.

Supplier hereby grants to the State and its Application Users a non-exclusive, transferable, worldwide license to access and use by any method the Application during the term of the Contract. The license fee for the rights shall be as set forth in the Pricing Schedule of the Contract and shall apply regardless of access mode.

Notwithstanding any other provision or other unilateral license terms which may be issued by Supplier after the Effective Date of the Contract, and irrespective of whether any such provisions have been proposed prior to or after the issuance of this Contract for Licensed Services, including access to the Application(s), or the fact that such other agreement may be presented to the State or its Application Users at the time of accessing the Application(s) (“click wrap”), the terms and conditions set forth in this Contract and any amendments or modifications thereto shall supersede and govern licensing and use of all products and services hereunder.

8. RIGHTS TO WORK PRODUCT

Any license to pre-existing work shall be held by, and all rights in, title to, and ownership of Work Product shall vest with the State.

AB. Work Product The State and Supplier each acknowledge that performance of this Contract may result in Work Product. The Parties shall document all Work Product specifications and such specifications shall be made an incorporated exhibit to this Contract. Supplier agrees that it shall promptly and fully disclose to the State any and all Work Product generated, conceived, reduced to practice or learned by Supplier or any of its employees, either solely or jointly with others, during the term or performance of this Contract, which in any way relates to the business of the State. Supplier further agrees that neither Supplier nor Supplier's employees, contractors, agents or subcontractors, nor any party claiming through Supplier or Supplier's employees, shall, other than in the performance of this Contract, make use of or disclose to others any proprietary information relating to the Work Product. All Services performed hereunder shall include delivery of all source and object code and all executables and documentation for all Work Product. Supplier shall at no time deny access to the Work Product, regardless of form, by the State.

AC. Ownership

Supplier agrees that, whether or not the Services are considered “works made for hire” or an employment to invent, all Work Product discovered, created or developed under this Contract shall be and remain the sole property of the State. Except as specifically set forth in writing and signed by the State and Supplier, the Supplier agrees that the State shall have all rights with respect to any Work Product discovered, created, or developed under this Contract without regard to the origin of the Work Product.

If and to the extent that Supplier may, under applicable law, be entitled to claim any ownership interest in the Work Product, Supplier hereby irrevocably transfers, grants, conveys, assigns and relinquishes exclusively to the State any and all right, title and interest it now has or may hereafter acquire in and to the Work Product under patent, copyright, trade secret, and trademark law in perpetuity or for the longest period otherwise permitted by law. If any moral rights are created, Supplier waives such rights in the Work Product. Supplier further agrees as to the Work Product to assist the State in every reasonable way to obtain and, from time to time, enforce patents, copyrights, trade secrets and other rights and protection relating to the Work Product, and to that end, Supplier and its employees shall execute all documents for use in applying for and obtaining such patents, copyrights, and other rights and protection, and in protecting trade secrets, with respect to such Work Product, as the State may reasonably request, together with any assignments thereof to the State.

AD. Pre-existing Work

If and to the extent that any pre-existing rights are embodied or reflected in the Work Product, Supplier hereby grants to the State the irrevocable, perpetual, non-exclusive, worldwide, royalty-free right, and license to (i) use, execute, reproduce, display, perform, distribute copies of and prepare derivative works based upon such pre-existing rights and any derivative works thereof and (ii) authorize others to do any or all of the foregoing.

AE. Return of Materials

Upon termination of this Contract, Supplier shall immediately return to the State all copies in whatever form, of any and all Confidential Information, Work Product, and other properties provided by the State which are in Supplier's possession, custody, or control.

9. Proprietary Rights

A. Supplier’s Proprietary Rights

Except as otherwise stated herein, the Licensed Services (including without limitation, the Application and Updates, and Supplier product, except to the extent that Supplier product contains Content) and Documentation are the sole and exclusive property of Supplier and its licensors. All modifications, enhancements, Updates, and translations of the Licensed Services shall be deemed a part thereof.

B. The State Requirements and License Restrictions

Except as otherwise provided in this Contract or as provided by law:

a) The State will use commercially reasonable efforts to ensure that Application Users comply with all the terms and conditions hereof;

b) The State shall not reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from any of the software comprising or in any way making up a part of the Application;

c) The State shall not directly or indirectly copy or reproduce all or any part of the Application, whether electronically, mechanically or otherwise, in any form including, but not limited to, the copying of presentation, style or organization, without prior written permission from Supplier; provided, however, the State retains ownership of and may reproduce, distribute, and manipulate any Application output generated from the State Content, and an Application User may reproduce, distribute, and manipulate any Application output generated pursuant to the permissions set forth in the Contract;

d) The State shall not rent, lease, sublicense, resell for profit, loan, distribute, network or modify the Application or Supplier product or any component thereof, provided as part of the Licensed Services, except as otherwise authorized by Supplier. However, the State retains ownership of and may reproduce, distribute, and manipulate any Application output (e.g., reports, extracts, dashboard, etc.) generated by the State using the Application, and an Application User may reproduce, distribute, and manipulate any reports or output generated by the Application User using the Application and pursuant to the permissions in the Contract;

e) The State shall only use the Application and Supplier product in the normal course of business, in connection with, and as part of, the Licensed Services;

f) The State shall not attempt to gain unauthorized access to the Application or Licensed Services, other user accounts, computer systems or networks connected to the Licensed Services;

g) The State shall not remove, obscure or alter Supplier’s proprietary notices, disclaimers, trademarks, or other proprietary rights notices of any kind affixed or contained in the Application or Licensed Services;

h) The State shall take reasonable care not to, and shall not intentionally or knowingly, use the Application to post, transmit, distribute, store or destroy any information: (i) in violation of any applicable law, statute, ordinance or regulation; (ii) in a manner that shall infringe the intellectual property rights of others; (iii) that is defamatory or trade libelous, or (iv) that contains any Computer Viruses;

i) The State shall not use the Application or Licensed Services for any illegal purpose.

C. The State Proprietary Rights

Except as otherwise stated herein and with the exception of any applicable third-party rights, Content and any customizations made for the State’ operation of the Application or for interoperability with other the State’ systems or applications paid for by the State, are and shall remain the sole and exclusive property of the State, including all applicable rights to patents, copyrights, trademarks, trade secrets or other proprietary property rights thereto. Additionally, all right, title and interest in and to any Content or customizations relating to the State’ business shall remain the property of the State, whether or not supplied to Supplier or uploaded into the Application. Nothing in this Contract shall be construed as conveying any rights or interest in Content or customizations to Supplier. Upon termination of the Contract, Supplier agrees to provide the Content and customizations to the State, and, at the State’ request, certify in writing that said Content and customizations in all formats, have been destroyed.

10. GENERAL Warranty

Supplier warrants that the Services, Solution, Components, Deliverables, product, Software, Updates, as authorized and provided by Supplier under this Contract, shall meet or exceed the Requirements. Supplier shall correct, at no additional cost to the State, all errors identified during the Contract Term that result in Supplier’s failure to meet the Requirement or its contractual obligations.

Further, Supplier warrants and represents to the State that Supplier will fulfill its contractual obligations and meet all Requirements.

AF. Interoperability Warranty

Supplier warrants that each Component, regardless of the origin of the Component, delivered under this Contract shall be interoperable with other Components so as to meet or exceed the performance specified in the Requirements.

AG. Documentation and Deliverables

Supplier warrants the following as applicable to the Contract:

1. The Solution is pursuant to this Contract and therefore such Solution shall be fit for the particular purposes specified by the State in the RFP and in this Contract. Further, Supplier is possessed of superior knowledge with respect to the Solution and is aware that the State is relying on Supplier's skill and judgment in providing the Solution;

2. The Solution provided hereunder includes Component Software at the current release level unless the State specifies an older version.

3. No corrections, work arounds or future Software or Solution Component Software releases provided by Supplier under the warranty provisions or under maintenance shall degrade the Solution, cause any other warranty to be breached, or require the State to acquire additional hardware equipment or software.

4. Supplier warrants that the Documentation and all modifications or amendments thereto which Supplier is required to provide under this Contract shall be sufficient in detail and content to allow a user/programmer to understand fully the Solution or Solution Component or to load/use/operate the Software without reference to any other materials or information.

AH. Malicious Code

Supplier has used its best efforts through quality assurance procedures to ensure that there are no Computer Viruses or undocumented features in any Solution, Solution Component, Deliverables, product, Software, System Software, Update, Application and/or Licensed Service, as obligated and provided by Supplier at the time of delivery to the State. Supplier warrants that the Solution, Solution Components, Deliverables, product, Software, System Software, Update, Application, and/or Licensed Services, as obligated and provided by Supplier does not contain any embedded device or code (e.g., time bomb) that is intended to obstruct or prevent the State’ use of the Solution, Solution Components, Deliverables, product, Software, System Software, Application, and/or Licensed Service.

Notwithstanding any rights granted under this Contract or at law, Supplier hereby waives under any and all circumstances any right it may have or may hereafter have to exercise Electronic Self-Help. Supplier agrees that the State 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.

AI. Open Source

Supplier will notify the State if the Solution, Solution Components, Deliverables, product, Software, Updates, Application, and/or Licensed Services, as obligated and provided by Supplier, contains 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.

THE OBLIGATIONS OF SUPPLIER UNDER THIS GENERAL WARRANTY SECTION ARE MATERIAL. SUPPLIER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY CONCERNING MERCHANTABILITY OR FITNESS FOR ANY OTHER PARTICULAR PURPOSE.

AJ. Degradation and Security Vulnerabilities Supplier warrants that Supplier and its employees, subcontractors, partners and third-party providers have taken all necessary and reasonable measures to ensure that the Solution, Application, Software, Licensed Services, Supplier product, and any related deliverables do not include any degradation, known security vulnerabilities, or breach of privacy or security. Supplier agrees to notify the State of any occurrence of such as soon as possible after discovery and provide the State with fixes or upgrades for security vulnerabilities within ninety (90) days of discovery.

AK. Operating System and Software Supportability

Supplier warrants that Supplier and its employees, subcontractors, partners and third-party providers have taken all necessary and reasonable measures to ensure that the Solution, Application, Software, Licensed Services, Supplier product, and any deliverables do not have dependencies on other operating systems or software that are no longer supported by Supplier, or its Subcontractors, partners and third-party providers.

AL. Access to product and Passwords

Supplier warrants that the Solution, Application, Software and Licensed Services do not contain disabling code or any program device or other undisclosed feature, including but not limited to, viruses, worms, trojan horses, or other code which is designed to permit unauthorized access, delete, disable, deactivate, interfere with or otherwise harm the Solution, Application, Software, Licensed Services or the hardware or software of the State or its Application Users. In addition, Supplier warrants that the State and its Application Users will be provided commercially reasonable uninterrupted access to the Application. Supplier also warrants that it will not cancel or otherwise terminate access to the Application by disabling passwords, keys or tokens that enable continuous use of the Application by the State and its Application Users during the term of this Contract. Supplier further warrants that the Solution, Application, Software and Licensed Services are compatible with and will operate successfully on the equipment.

11. DELIVERY AND INSTALLATION

AM. Scheduling

Supplier shall deliver the Solution, including any Component parts, and complete performance of Services according to the delivery dates set forth in the Contract.

Supplier shall make available all appropriate and/or related Documentation at the time of delivery of the relevant Component of the Solution. Any Solution Component delivered without the appropriate and required Documentation shall be considered "shipped short" until the applicable documentation has been received.

AN. Deployment of Solution

1. Supplier Deployment of Solution

The Solution fee includes initial deployment of the complete Solution. Supplier is required to deploy the Solution in accordance with the deployment schedule set forth in the Contract. Deployment shall include the installation of any Software Component and, if agreed, any hardware Component, of the Solution. Supplier shall conduct its appropriate diagnostic evaluation to determine that the Solution is properly deployed and fully ready for productive use and shall supply the State with a copy of the results of the diagnostic evaluation promptly after completion of deployment.

Supplier agrees that failure to deploy the Solution in accordance with the delivery schedule in the Contract shall constitute a material breach of this Contract. State reserves any and all other remedies available at law or in equity for delivery schedule delays or non-deployment.

2. The State Installation of Software

If the Solution includes Software which may be installed by the State and the State elects to install the Software itself, the Software shall be deemed to be installed when all programs, program libraries and user interfaces are copied to and initialized on the appropriate equipment as executable by having the State invoke the primary function of each major Component of the Software or when Acceptance criteria as specified in the Contract have been met. The State shall provide to Supplier written notice of Acceptance upon completion of installation and successful Acceptance testing. Supplier shall proceed with full deployment of the Solution concurrently with or after the State’s installation of the Software.

AO. Documentation of Software Configuration

If the Solution includes configuration of Software by Supplier, Supplier shall provide to the State documentation containing a description of the configuration. Such documentation shall be sufficiently detailed such that any appropriately trained employee or Agent of the State may reconstruct the configuration of the Software.

AP. Data Backup

Supplier must maintain a robust and reliable data backup system. Supplier must perform a daily backup of the data and systems. Supplier must maintain a minimum sixty (60) days of data backups. At least two weekly copies of the data and systems backups shall be archived and securely transported to a secure external site. Daily backup reports of all successful/failed systems backups/archives must be provided to the State. Data recovery must be accomplished with a minimum slowdown of system functions. Supplier must provide a copy of all data to the State without delay upon request by the State. Vendor will notify the State’s Chief Information Security Officer within 24 hours of any identified information breach or other security incident which impacts the State’s data or application.

12. acceptance

AQ. Software and Deliverable Acceptance Criteria

Software and Deliverables shall be deemed accepted when the State determines that such Software and Deliverables successfully operate in accordance with the Requirements of the Contract. At a minimum, Acceptance Criteria for Software and Deliverables, and for the Solution as a whole, shall meet all the functionality described in the Requirements set forth in the Contract. Acceptance of any one Deliverable shall not imply the State’ concurrence that the Deliverable will function properly with or within the Solution. Supplier shall be responsible for ensuring that all Deliverables function properly within the Solution. Should a previously Accepted Deliverable require further modification in order to work properly with or within the Solution, Supplier shall be responsible for all costs associated with such modification. The State agrees to commence Acceptance testing as mutually agreed by all parties. Supplier agrees to provide to the State and any third-party the State is contracted with, such assistance and advice as the State may reasonably require, at no additional cost, during such Acceptance testing.

AR. Software and Deliverable Cure Period

Supplier shall correct any non-conformities identified during Acceptance testing and re-submit such non-conforming Software or Deliverable for re-testing within a reasonable time as mutually agreed to by the parties upon written notice of non-conformance. Should Supplier fail to cure the non-conformity or deliver Software or a Deliverable which meets the Requirements, the State may, in its sole discretion: (i) reject the Software or Deliverable in its entirety and recover amounts previously paid hereunder; (ii) issue a “partial Acceptance” of the Software or Deliverable with an equitable adjustment, as determined by the State, in the price to account for such deficiency; or (iii) conditionally accept the applicable Software or Deliverable while reserving its right to revoke Acceptance if timely correction is not forthcoming. Failure of the Software or a Deliverable to meet, in all material respects, the Requirements after a reasonable amount of acceptance tests as defined by the State shall constitute a default by Supplier. In the event of such default, the State may, at its sole discretion, terminate the Contract, in whole or in part, for the Solution to be provided thereunder by Supplier with a refund of any amounts previously paid hereunder for work that has not been Accepted. The State retains its rights to seek any available legal or equitable remedies, including but not limited to monetary damages and reasonable attorney fees and costs.

AS. Complete Solution Acceptance Criteria

Solution shall be deemed accepted when the State determines that such Solution successfully operates in accordance with the Requirements. The State agrees to commence Acceptance testing as mutually agreed by all parties after deployment of the Solution. Acceptance testing will be completed as agreed in writing between the State and Supplier, after deployment of the Solution. Supplier agrees to provide to the State and any third-party the State is contracted with such assistance and advice as the State may reasonably require, at no additional cost, during such Acceptance testing.

AT. Complete Solution Cure Period

Supplier shall correct any non-conformities identified hereunder and shall thereafter re-submit such previously non-conforming Solution or Component products or Services for re-testing within a reasonable time as mutually agreed to by the parties following written notice of non-conformance to Supplier. Should Supplier fail to deliver a Solution which meets the Requirements, the State may, in its sole discretion: (i) reject the Solution in its entirety and recover amounts previously paid hereunder; (ii) issue a "partial Acceptance" of the Solution with an equitable adjustment, as determined by the State, in the price to account for such deficiency; or (iii) conditionally accept the applicable Solution while reserving its right to revoke Acceptance if timely correction is not forthcoming. Failure of the Solution to meet, in all material respects, the specifications and performance standards after a reasonable amount of acceptance tests as defined by the State shall constitute a default by Supplier. In the event of such default, the State may, at its sole discretion, terminate the Contract, in whole or in part, for the Solution to be provided hereunder by Supplier, with a refund of any amounts previously paid hereunder. The State retains its rights to seek any available legal or equitable remedies, including but not limited to monetary damages and reasonable attorney fees and costs.

AU. Federal Review

All Deliverables and Work Products shall be retained by the State and the Supplier for review by Federal authorities for the duration of the project. All deliverables and Work Product will become property of the State.

13. WARRANTY AND MAINTENANCE SERVICES

The following warranty or maintenance services shall supplement any warranties or SLAs outlined in the Contract. Supplier shall provide the following warranty or maintenance services (including unlimited telephonic support and all necessary travel and labor) to maintain the Solution in accordance with the Requirements.

AV. Known Defects

Promptly notify the State in writing of any defects or malfunctions in the Solution or Documentation of which it learns from any source, correct any such defects or malfunctions or provide a work around until corrected, within 1 (one) day of Supplier's knowledge of such defect or malfunction and provide the State with corrected copies of same.

AW. New Releases

Provide to the State no later than the first day of general release, copies of the Software and Documentation revised to reflect any enhancements, including all new releases, versions, Updates, upgrades, and access modes, to the Software made by Supplier, including, without limitation, modifications to the Software which can increase the speed, efficiency or base of operation of the Software or add additional capabilities to or otherwise improve the functionality of the Software.

The Supplier will provide the agency 30 days’ notice for all new releases, versions, Updates, upgrades to production. The Department may reject any new releases, versions, Updates, or upgrades.