26-RFQ-010-Proposed Contract.docx

PROPOSED CONTRACT TERMS

Contract Number

[XXX-XXX-XXX]

for between the

WASHINGTON TECHNOLOGY SOLUTIONS

and [Vendor]

Effective Date: ___________________________ [Add Effective Date]

Table of Contents

1. Definition of Terms 2 Contract Term

Pricing, Invoice And Payment

Vendor’s Responsibilities

Contract Administration

General Provisions

Disputes and Remedies

Contract Termination

Contract Execution

Schedules

Exhibits

CONTRACT NUMBER [XXX-XXX-XXX]

for [describe acquisition]

PARTIES

This Contract (“Contract”) is entered into by and between the state of Washington, acting by and through Washington Technology Solutions an agency of Washington State government (“Purchaser” or “WaTech”) located at 1500 Jefferson Street SE, 5th Floor, PO Box 41501, Olympia WA 98501 and [Vendor], a [corporation/sole proprietor or other business form] licensed to conduct business in the state of Washington (“Vendor”), located at [Vendor address] for the purpose of providing [describe Services to be provided].

RECITALS

The state of Washington, acting by and through [Purchaser], issued a Request for [Proposal/ Quotation/Qualifications and Quotation] [(RFX)] dated [date], (Exhibit A) for the purpose of purchasing [describe Services to be provided] in accordance with its authority under chapter 43.105 RCW.

[Vendor] submitted a timely Response to [Purchaser]’s [RFX] (Exhibit B).

The [Purchaser] evaluated all properly submitted Responses to the above-referenced [RFX] and has identified [Vendor] as the apparently successful Vendor.

The [Purchaser] has determined that entering into a Contract with [Vendor] will meet Purchaser’s needs and will be in Purchaser’s best interest.

[If not a competitive acquisition, discuss sole source or other acquisition method in place of the above Recitals.] NOW THEREFORE, Purchaser awards to [Vendor] this Purchased Services Contract, the terms and conditions of which shall govern Vendor’s furnishing to [Purchaser] the [describe Services to be provided]. This Contract is not for personal use.

IN CONSIDERATION of the mutual promises as hereinafter set forth, the parties agree as follows:

Definition of Terms The following terms as used throughout this Contract shall have the meanings set forth below.

“Breach” shall mean the unauthorized acquisition of computerized data that compromises the security, confidentiality, or integrity of personal information maintained by Purchaser.

“Business Days and Hours” shall mean Monday through Friday, 8:00 a.m. to 5:00 p.m., Pacific Time, except for holidays observed by the state of Washington.

“Confidential Information” shall mean information that may be exempt from disclosure to the public or other unauthorized persons under either chapter 42.17 RCW or other state or federal statutes. Confidential Information includes, but is not limited to, names, addresses, Social Security numbers, e-mail addresses, telephone numbers, financial profiles, credit card information, driver’s license numbers, medical data, law enforcement records, agency source code or object code, agency security data, or [add other items as necessary or delete items not applicable].

“Contract” shall mean this document, all schedules and exhibits, Statements of Work, and all amendments hereto.

“Effective Date” shall mean the first date this Contract is in full force and effect. It may be a specific date agreed to by the parties; or, if not so specified, the date of the last signature of a party to this Contract.

“Exhibit A” shall mean the [RFX].

“Exhibit B” shall mean [Vendor]’s Response.

“Price” shall mean charges, costs, rates, and/or fees charged for the Services under this Contract and shall be paid in United States dollars.

“Product(s)” shall mean any Vendor-supplied equipment, Software, and documentation.

“Proprietary Information” shall mean information owned by Vendor to which Vendor claims a protectable interest under law. Proprietary Information includes, but is not limited to, information protected by copyright, patent, trademark, or trade secret laws.

“Purchased Services” or “Services” shall mean those Services and activities provided by Vendor to accomplish routine, continuing, and necessary functions as set forth in this Contract or a Statement of Work.

“Purchaser” shall mean the state of Washington, [Purchaser], any division, section, office, unit or other entity of Purchaser or any of the officers or other officials lawfully representing Purchaser.

“Purchaser [Project or Business] Manager” shall mean the person designated by Purchaser who is assigned as the primary contact person whom Vendor’s Account Manager shall work with for the duration of this Contract and as further defined in the section titled Purchaser [Project or Business] Manager.

“Purchaser Contract Administrator” shall mean that person designated by Purchaser to administer this Contract on behalf of Purchaser.

“Purchaser Contracting Officer” shall mean [name of Purchaser’s officer with signature authority], or the person to whom signature authority has been delegated in writing. This term includes, except as otherwise provided in this Contract, an authorized representative of the Purchaser Contracting Officer acting within the limits of his/her authority.

“RCW” shall mean the Revised Code of Washington.

“[RFX]” shall mean the Request for [Proposal/Quotation/Qualifications and Quotation] used as a solicitation document to establish this Contract, including all its amendments and modifications, Exhibit A hereto.

“Response” shall mean Vendor’s Response to Purchaser’s [RFX] for [describe acquisition], Exhibit B hereto.

“Schedule A: Authorized Services and Price List” shall mean the attachment to this Contract that identifies the authorized Services and Prices available under this Contract.

“Schedule B: Statement of Work Template” shall mean the attachment to this Contract that provides example terms and conditions for a Statement of Work.

“Schedule C: MWBE Certification” shall mean the attached certificate(s) indicating Vendor’s and/or one or more of Vendor’s Subcontractor’s status as a minority or women’s business enterprise.

“Specifications” shall mean the technical and other specifications set forth in the [RFX], Exhibit A, and any additional specifications set forth in Vendor’s Response, Exhibit B.

“Statement of Work” or “SOW” shall mean a separate statement of the work to be accomplished by Vendor under the terms and conditions of this Contract. A template SOW is attached as Schedule B.

“Subcontractor” shall mean one not in the employment of Vendor, who is performing all or part of the business activities under this Contract under a separate contract with Vendor. The term “Subcontractor” means Subcontractor(s) of any tier.

“Vendor” shall mean [Vendor], its employees and agents. Vendor also includes any firm, provider, organization, individual, or other entity performing the business activities under this Contract. It shall also include any Subcontractor retained by Vendor as permitted under the terms of this Contract.

“Vendor Account Manager” shall mean a representative of Vendor who is assigned as the primary contact person whom the Purchaser [Project or Business] Manager shall work with for the duration of this Contract and as further defined in the section titled Vendor Account Manager.

“Vendor Contracting Officer” shall mean [title of Vendor officer with signature authority], or the person to whom signature authority has been delegated in writing. This term includes, except as otherwise provided in this Contract, an authorized representative of Vendor Contracting Officer acting within the limits of his/her authority.

“WaTech” shall mean the same as Purchaser.

“Work Product” shall mean data and products produced under this Contract including but not limited to, discoveries, formulae, ideas, improvements, inventions, methods, models, processes, techniques, findings, conclusions, recommendations, reports, designs, plans, diagrams, drawings, software, databases, documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes, and/or sound reproductions, to the extent provided by law.

Contract Term Term Term of Contract The term of this Contract shall be [______(__)] years [or other appropriate time period], commencing upon the Effective Date.

[–OR–]

This Contract’s initial term shall be [______(__)] years [or other appropriate time period], commencing upon the Effective Date.

This Contract’s term may be extended by [______(__)] additional [one (1)] year [or other appropriate time period] term[s], provided that the extensions shall be at Purchaser’s option and shall be effected by Purchaser giving written notice of its intent to extend this Contract to Vendor not less than [thirty (30)] calendar days [or other appropriate time period] prior to the then-current Contract term’s expiration and Vendor accepting such extension prior to the then-current Contract term’s expiration. The total term of this Contract shall not exceed [__] years [or other appropriate time period]. No change in terms and conditions shall be permitted during these extensions unless specifically agreed to in writing.

[–OR–replace subsection 2.1b) above with the following.]

b) This Contract’s term shall be automatically extended for [______(__)] additional [one (1)] year [or other appropriate time period] term[s] unless Purchaser terminates by giving written notice of its decision not to extend to Vendor not less than [thirty (30)] calendar days [or other appropriate time period] prior to the then-current Contract term’s expiration. No change in terms and conditions shall be permitted during these extensions unless specifically agreed to in writing.

Term of Statement of Work (SOW). The term of any SOW executed pursuant to this Contract shall be set forth in the SOW. The term of the SOW shall not exceed the term of this Contract. The SOW may be terminated in accordance with the termination sections of this Contract or as mutually agreed between the parties.

Survivorship All license and purchase transactions executed and Services provided pursuant to the authority of this Contract shall be bound by all of the terms, conditions, Prices and Price discounts set forth herein, notwithstanding the expiration of the initial term of this Contract or any extension thereof. Further, the terms, conditions and warranties contained in this Contract that by their sense and context are intended to survive the completion of the performance, cancellation or termination of this Contract shall so survive. In addition, the terms of the sections titled Overpayments to Vendor; Ownership/Rights in Data; Vendor’s Commitments, Warranties and Representations; Protection of Purchaser’s Confidential Information; Section Headings, Incorporated Documents and Order of Precedence; Publicity; Review of Vendor’s Records; Patent and Copyright Indemnification; Vendor’s Proprietary Information; Disputes; and Limitation of Liability shall survive the termination of this Contract.

Pricing, Invoice and Payment Pricing The total amount expended under this Contract shall not exceed [________] dollars ($___) [Specify maximum dollar amount].

Vendor agrees to provide the Services at the Prices set forth [below or in Schedule A]. No other Prices shall be charged by Vendor for implementation of Vendor’s Response.

Prices may not be increased during the initial term of the Contract.

If Vendor reduces its Prices for any of the Services during the term of this Contract, Purchaser shall have the immediate benefit of such lower Prices for new purchases. Vendor shall send notice to the Purchaser Contract Administrator with the reduced Prices within fifteen (15) Business Days of the reduction taking effect.

At least ninety (90) calendar days before the end of the then-current term of this Contract, Vendor may propose Service rate increases by written notice to Purchaser Contract Administrator. Price adjustments will be taken into consideration by Purchaser Contract Administrator when determining whether to extend this Contract.

Vendor agrees that all the Prices, terms, warranties, and benefits provided in this Contract are comparable to or better than the terms presently being offered by Vendor to any other governmental entity purchasing the same quantity under similar terms. If during the term of this Contract Vendor shall enter into contracts with any other governmental entity providing greater benefits or more favorable terms than those provided by this Contract, Vendor shall be obligated to provide the same to Purchaser for subsequent purchases.

Advance Payment Prohibited No advance payment shall be made for the Software and Services furnished by Vendor pursuant to this Contract except allowable subscriptions or equipment warranties. In the case of allowable pre-payment of subscriptions or warranties, in no event shall the subscription period for which payment in advance is made exceed twelve month payment in advance.

Taxes Purchaser will pay sales and use taxes, if any, imposed on the Services acquired hereunder. Vendor must pay all other taxes including, but not limited to, Washington Business and Occupation Tax, other taxes based on Vendor’s income or gross receipts, or personal property taxes levied or assessed on Vendor’s personal property. Purchaser, as an agency of Washington State government, is exempt from property tax.

Vendor shall complete registration with the Washington State Department of Revenue and be responsible for payment of all taxes due on payments made under this Contract.

All payments accrued on account of payroll taxes, unemployment contributions, any other taxes, insurance, or other expenses for Vendor or Vendor’s staff shall be Vendor’s sole responsibility.

Invoice and Payment This contract will be performanced based, meaning payment is tied to the succeful completion of the tasks.

Vendor will submit properly itemized invoices to [title of person to receive invoices] at [provide appropriate address]. Invoices shall provide and itemize, as applicable:

Purchaser Contract number [XXX-XXX-XXX];

SOW number [YY-YY];

Vendor name, address, phone number, and Federal Tax Identification Number;

Description of Services provided;

Date(s) that Services were provided, including number of hours worked;

Vendor’s Price for Services;

Net invoice Price for each Service;

Applicable taxes;

Other applicable charges;

Total invoice Price; and Payment terms including any available prompt payment discounts.

Purchaser shall pay maintenance and support charges on a monthly basis, in arrears. Payment of maintenance service/support of less than one (1) month’s duration shall be prorated at 1/30th of the basic monthly maintenance charges for each calendar day.

Incorrect or incomplete invoices will be returned by Purchaser to Vendor for correction and reissue.

The Purchaser Contract number [XXX-XXX-XXX] and SOW number [YY‑YY] must appear on all bills of lading, packages, and correspondence relating to this Contract.

Purchaser shall not honor drafts, nor accept goods on a sight draft basis.

If Purchaser fails to make timely payment, Vendor may invoice Purchaser one percent (1%) per month on the amount overdue or a minimum of one dollar ($1). Payment will not be considered late if payment is deposited electronically in Vendor’s bank account or if a check or warrant is postmarked within thirty (30) calendar days of acceptance of the Services or receipt of Vendor’s properly prepared invoice, whichever is later.

Purchaser shall withhold seventeen percent (17%) from each payment until acceptance by Purchaser of the final deliverable.

SUBCONTRACTOR PAYMENTS REPORTING REQUIREMENTS: This Contract is subject to compliance tracking using the State’s business diversity management system, Access Equity (B2Gnow). Access Equity is web-based and can be accessed at the Office of Minority and Women’s Business Enterprises at https://omwbe.diversitycompliance.com/. The Contractor and all Subcontractors shall report and confirm receipt of payments made to the Contractor and each Subcontractor through Access Equity. The Contractor may contact ______________________________ at ____________ for technical assistance in using the Access Equity system. 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. The Public Owner reserves the right to withhold payments from the Contractor for non-compliance with this section. For purposes of this section, Subcontractor means any subcontractor working on the Contract, at any tier and regardless of status as certified WMBE or Non-WMBE.

The Contractor shall:

a. Register and enter all required Subcontractor information into Access Equity no later than 15 days after the Public Owner creates the Contract Record.

b. Complete the required user training (two (2) one-hour online sessions) no later than 20 days after the Public Owner creates the Contract Record.

c. Report the amount and date of all payments (i) received from the Public Owner, and (ii) paid to Subcontractors, no later than _______________________, issuance of each payment made by the Public Owner to the Contractor, unless otherwise specified in writing by the Public Owner, except that the Contractor shall mark as “Final” and report the final Subcontractor payments) into Access Equity no later than thirty (30) days after the final payment is due the Subcontractor(s) under the Contract, with all payment information entered no later than sixty (60) days after end of fiscal year.

Overpayments to Vendor Vendor shall refund to Purchaser the full amount of any erroneous payment or overpayment under this Contract within thirty (30) days’ written notice. If Vendor fails to make timely refund, Purchaser may charge Vendor one percent (1%) per month on the amount due, until paid in full.

Vendor’s Responsibilities Purchased Services and Statement of Work All Services shall be performed pursuant to the terms of this Contract and shall be documented in an SOW established between Purchaser and Vendor.

The SOW shall at a minimum:

Reference this Contract number [XXX-XXX-XXX];

Define project or task objectives;

Describe the scope of Services or work to be performed;

Identify deliverables;

Specify a timeline and period of performance;

Specify compensation and payment, e.g., the hourly rate and total Vendor hours to be provided or the fixed price for a deliverable, (whichever is applicable), total cost of the project, and reimbursable Vendor expenses;

Describe Vendor’s roles and responsibilities and identify specific Vendor staff;

Describe Purchaser’s roles and responsibilities;

Provide signature block for both parties.

The terms and conditions of any SOW cannot conflict with the terms and conditions of this Contract. In the event of any conflict, the Contract shall prevail.

Commencement of Work No work shall be performed by Vendor until an SOW is executed by Vendor and Purchaser and is received by Vendor.

Ownership/Rights in Data Any custom additions and modifications to Contractor’s Preexisting Material (defined below) and all data and work products produced pursuant to this Master Contract and any Work Order shall collectively be called “Work Product.” Purchaser shall have and retain all ownership, right, title, interest and all intellectual property rights to Work Product. To the extent that any such rights in the Work Product vest initially with the Contractor by operation of law or for any other reason, Contractor hereby perpetually and irrevocably assigns, transfers and quitclaims such rights to Purchaser. Ownership includes the right to copyright, patent, register and the ability to transfer these rights and all information used to formulate such Work Product.

Contractor warrants that it is the owner of the Work Product and Preexisting Material and that it has full right to assign and license the same to Purchaser.

Work Product includes, but is not limited to, discoveries, formulae, ideas, improvements, inventions, methods, models, processes, techniques, findings, conclusions, recommendations, reports, designs, plans, diagrams, drawings, software, databases, documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes, and/or sound reproductions, to the extent provided by law.

During the Term and any time thereafter, Contractor shall execute all documents and perform such other proper acts as Purchaser may deem necessary to secure for Purchaser the rights pursuant to this section, and when so obtained or vested to maintain, renew, and restore the same.

Contractor shall not use or in any manner disseminate any Work Product to any third party, or represent in any way Contractor ownership in any Work Product. Contractor shall take all reasonable steps necessary to ensure that its agents, employees, or Subcontractors shall not copy, disclose, transmit or perform any Work Product or any portion thereof, in any form, to any third party.

Contractor hereby grants to Purchaser a non-exclusive, royalty-free, irrevocable license to use, publish, translate, reproduce, deliver, perform, display, and dispose of materials and know how that are delivered under this Contract, but that do not originate therefrom (“Preexisting Material”).

Contractor shall exert best efforts to advise WaTech and Purchaser of all known or potential infringements of publicity, privacy or of intellectual property rights of the Preexisting Material furnished under this Contract. WaTech and Purchaser shall receive prompt written notice of each notice or claim of copyright infringement or infringement of other intellectual property right worldwide received by Contractor with respect to any Preexisting Material delivered under this Contract. Purchaser shall have the right to modify or remove any restrictive markings placed upon the Preexisting Material by Contractor.

Site Security

a. Facility Access Vendor understands that all Purchasers’ building entrances are controlled for access. In the event Vendor performs any work at any of Purchaser’s buildings, Vendor agrees to become familiar with Purchaser’s building and security policies, and further agrees to observe and comply with all Purchaser’s building and security policies or procedures.

Vendor understands that in order to obtain access to Purchaser’s premises, if applicable, Vendor must be issued a security badge by Purchaser. Vendor shall provide certain personal information, including valid government issued photo identification, prior to obtaining a security badge. Vendor further understands that Purchaser will collect and retain such personal information for so long as the contract is in effect and such individual(s) has access to the premises. Purchaser reserves the right to deny an application for a security badge. Failure of Vendor to comply with Purchaser’s security and safety policies and procedures is sufficient grounds for revoking, modifying, suspending or terminating access to Purchaser’s facilities.

Upon the earlier of termination of the Contract, or suspension or termination of access to Purchaser’s facilities, Vendor shall return all security badges.

b. Remote Access to Network Vendor understands that in order to obtain remote access to Purchaser’s Local Area Network (LAN), email, or supported computing environments through a remote access connection (“Remote Access”), Vendor must comply with Purchaser’s Remote Access policy and any other applicable security policies or procedures. Vendor shall, prior to access, complete and sign any applicable agreements or forms. Remote Access is conditioned upon final approval by Purchaser.

c. Safety Vendor shall observe and comply with OSHA regulations, all applicable safety and environmental laws and regulations, and all Purchaser’s rules, guidelines, policies and procedures relating to safety, workplace conditions, health and the environment, including physical, fire, evacuation, accidents, hazardous materials or situations, or other safety regulations and policies.

d. Information and System Security Vendor acknowledges and understands that access to Purchaser’s computer networks may be necessary to perform the work under this Contract, and as a result Purchaser has placed or may place special confidence and trust in the Vendor in providing such access. Vendor acknowledges and understands that any access to Purchaser’s computer networks shall be limited, restricted and conditioned upon Vendor’s compliance with certain Purchaser policies and practices. Vendor warrants that it will perform all work for or on behalf of Purchaser in full compliance with the Information Services Board Security Policy, Standards and Guidelines, the Use of DIS Network policy attached hereto as Exhibit B, and any other security documents and best practices provided by Purchaser (“Security Policies”).

Vendor, having agreed upon Purchaser’s Security Policies as the acceptable standard for network security, warrants that it shall exercise its best efforts in the execution of the Security Policies with respect to 1) any electronic transfer of code or data; 2) prevention of unauthorized access; and 3) prevention of any and all undisclosed programs, extraneous code, self help code, unauthorized code, or other data that may be reasonably expected to damage data, code, software, systems or operations of Purchaser’s network, system or data.

Vendor Commitments, Warranties and Representations Any written commitment by Vendor within the scope of this Contract shall be binding upon Vendor. Failure of Vendor to fulfill such a commitment may constitute breach and shall render Vendor liable for damages under the terms of this Contract. For purposes of this section, a commitment by Vendor includes: (i) Prices, discounts, and options committed to remain in force over a specified period of time; and (ii) any warranty or representation made by Vendor in its Response or contained in any Vendor or manufacturer publications, written materials, schedules, charts, diagrams, tables, descriptions, other written representations, and any other communication medium accompanying or referred to in its Response or used to effect the sale to Purchaser.

Software Specifications All Software will conform in all material respects to its Specifications. Vendor warrants that the Products delivered hereunder shall perform in material conformance with the Specifications.

Compliance with Standards Vendor represents that it shall use commercially reasonable efforts to ensure all Software and elements thereof, including but not limited to, documentation, shall meet and be maintained by Contractor to conform to applicable industry standards.

Export Restrictions Purchaser shall not transport or transmit, directly or indirectly, the Software or any technical data received from Vendor, nor the direct product derived there from, outside the United States or Canada without Contractor’s prior written consent and without complying with all export laws and regulations of the United States.

Corporate Warranty Vendor hereby represents and warrants that the execution, performance and delivery of this Contract does not conflict with or constitute any default under any contract, agreement or other obligation of Vendor, including but not limited to license agreements, development agreements, assignment provisions or other contractual obligation.

Minority and Women’s Business Enterprise (MWBE) Participation With each invoice for payment and within thirty (30) days of Purchaser Contract Administrator’s request, Vendor shall provide Purchaser an Affidavit of Amounts Paid. The Affidavit of Amounts Paid shall either state that Vendor still maintains its MWBE certification, or state that its Subcontractor(s) still maintain(s) its/their MWBE certification(s) and specify the amounts paid to each certified MWBE Subcontractor under this Contract. Vendor shall maintain records supporting the Affidavit of Amounts Paid in accordance with this Contract’s Review of Vendor’s Records section.

Protection of Purchaser’s Confidential Information Vendor acknowledges that some of the material and information that may come into its possession or knowledge in connection with this Contract or its performance may consist of information that is exempt from disclosure to the public or other unauthorized persons under either chapter 42.17 RCW or other state or federal statutes (“Confidential Information”). Confidential Information includes, but is not limited to, names, addresses, Social Security numbers, e-mail addresses, telephone numbers, financial profiles, credit card information, driver’s license numbers, medical data, law enforcement records, agency source code or object code, agency security data, or [add other items as necessary or delete items not applicable], or information identifiable to an individual that relates to any of these types of information. Vendor agrees to hold Confidential Information in strictest confidence and not to make use of Confidential Information for any purpose other than the performance of this Contract, to release it only to authorized employees or Subcontractors requiring such information for the purposes of carrying out this Contract, and not to release, divulge, publish, transfer, sell, disclose, or otherwise make the information known to any other party without Purchaser’s express written consent or as provided by law. Vendor agrees to release such information or material only to employees or Subcontractors who have signed a nondisclosure agreement, the terms of which have been previously approved by Purchaser. Vendor agrees to implement physical, electronic, and managerial safeguards to prevent unauthorized access to Confidential Information.

Immediately upon expiration or termination of this Contract, Vendor shall, at Purchaser’s option: (i) certify to Purchaser that Vendor has destroyed all Confidential Information; or (ii) return all Confidential Information to Purchaser; or (iii) take whatever other steps Purchaser requires of Vendor to protect Purchaser’s Confidential Information.

Vendor shall maintain a log documenting the following: the Confidential Information received in the performance of this Contract; the purpose(s) for which the Confidential Information was received; who received, maintained and used the Confidential Information; and the final disposition of the Confidential Information. Vendor’s records shall be subject to inspection, review or audit in accordance with Review of Vendor’s Records.

Purchaser reserves the right to monitor, audit, or investigate the use of Confidential Information collected, used, or acquired by Vendor through this Contract. The monitoring, auditing, or investigating may include, but is not limited to, salting databases.

Violation of this section by Vendor or its Subcontractors may result in termination of this Contract and demand for return of all Confidential Information, monetary damages, or penalties.

Standard of Performance and Acceptance This section establishes a Standard of Performance that must be met before Acceptance. This Standard of Performance is also applicable to any additional, replacement, or substitute Products and any Product that is modified by or with the written approval of Contractor after having been Accepted.

[Alternative Language example]Acceptance of a System will be based on the following criteria.

Meeting or exceed the Standard of Performance defined below;

All installation, wiring, and cabling requirements identified in Section X have been satisfied;

Delivery to Purchaser of complete and updated as-built drawings indicating conformance with specifications;

Conformance of installation and programming requirements as specified by the Purchaser; and Completion of all required training of Purchaser staff (see sectionY).

The Standard of Performance for a Product is defined as a [ninety percent (90%) or one hundred percent (100%), or other appropriate percent] Effectiveness Level during the Acceptance Testing period set forth below.

The Effectiveness Level for a Product is the percentage of time in a month that the Product is functioning properly in accordance with its Specifications. The Effectiveness Level is determined by dividing the Operational Use Time of the Product by the sum of the Operational Use Time plus the Product Failure downtime, all of which shall be measured in hours and whole minutes. Operational Use Time for a Product is defined as the total time the Product would normally be used. Product Failure downtime is defined as the accumulated time during Operational Use time when work cannot be processed or accurately completed because of a Product Failure. Product Failure is defined as a malfunction in the Equipment or Software that prevents the accomplishment of the intended function(s) of the Product.

Downtime for each incident shall start from the time that Contractor knew or reasonably should have known of the Product Failure, or Purchaser makes a bona fide attempt to contact Contractor’s designated representative at the prearranged contact point, whichever occurs earlier, until the Product is returned to fully operational status in conformance with its Specifications. During periods of Product Failure downtime, Purchaser may use operable portions of the Product(s) when such action does not interfere with repair of the inoperable portions.

The Acceptance Testing period shall be [thirty (30) or other appropriate time period] [calendar days/Business Days], starting from the day after the Product is installed and Contractor certifies that the Product is ready for Acceptance Testing. Purchaser will review all pertinent data and shall maintain appropriate daily records to ascertain whether the Standard of Performance has been met.

In the event the Product does not meet the Standard of Performance during the initial period of Acceptance Testing, Purchaser may, at its discretion, continue Acceptance Testing on a day-to-day basis until the Standard of Performance is met. If after [ninety (90) calendar days, or other appropriate time period] the Product still has not met the Standard of Performance Purchaser may, at its option: (1) declare Contractor to be in breach of this Contract and terminate this Order or this Contract; or, (2) demand replacement Product from Contractor at no additional cost to Purchaser; or, (3) continue the Acceptance Testing for an additional [thirty (30) calendar days or other appropriate time period]. Contractor shall pay all costs related to the preparation and shipping for Product returned pursuant to this section. Purchaser’s option to declare Contractor in breach and terminate this Order shall not be waived by Purchaser’s decision to continue Acceptance Testing beyond the delineated testing period..

No Product shall be accepted and no charges shall be paid until this Standard of Performance is met. The date of Acceptance shall be the first Purchaser Business Day following the successful Acceptance Testing period and shall be formalized in a notice of Acceptance from Purchaser to Contractor.

Monthly Performance Monitoring. Throughout the warranty period and the initial and subsequent maintenance terms of this Contract, Purchaser shall monitor the Product to ensure that it conforms to the Standard of Performance established in this Standard of Performance and Acceptance section. Should the Product fail to operate in conformance with the Standard of Performance for any [thirty (30) calendar days or other appropriate time period] period, Contractor shall take corrective action as directed by Purchaser and, if the Product is Equipment, credit Purchaser a portion of the maintenance fees paid as provided in subsection 21.13 of the Equipment Maintenance section.

Training Service Training. Prior to installation, Contractor agrees to provide manufacturer’s service training, which shall consist of manufacturer’s standard program designed for authorized service centers and/or pre-qualified staff. A fee may be charged for training, as set forth in Schedule A.

The starting dates of the training will be as agreed by the parties The training fee, whether separately stated under the pricing provisions of this Contract or included in the cost of the Equipment, shall cover all costs of training. Purchaser shall not be responsible for any additional manufacturer’s costs for training required pursuant to this section.

Purchaser shall have the right, so long as the Equipment purchased hereunder is in use by Purchaser, to give instruction to Purchaser’s personnel in all courses described above and all revisions thereto without charge, using materials supplied by Contractor. Such use by Purchaser of Contractor’s materials shall include the right to reproduce the same solely for the permitted use, which use and reproduction shall not be a violation of or infringement upon any patent, copyright, or other proprietary right of Contractor. Contractor grants to Purchaser the right to make derivative works, update, modify, copy, or otherwise reproduce the documentation furnished pursuant to this section at no additional charge.

Use Training. At the time of installation, Contractor agrees to provide initial training and a six-month follow up training session, both at the installation site, for a minimum of [______ (__)] of Purchaser’s staff. Such training shall be sufficiently thorough to instruct, and certify, if required, such staff in the use of the Products. This will include, at a minimum, orientation and familiarization training on the Equipment. Initial training shall be completed in time for the staff to operate the Products in the required fashion with minimum Contractor aid immediately after installation and testing of Equipment.

The starting dates of the training will be as agreed by the parties.

The training fee, whether separately stated under the pricing sections of this Contract or included in the cost of the Products, shall cover all costs of training. Purchaser shall not be responsible for any additional Contractor costs for training required pursuant to this section.

Purchaser shall have the right, so long as the Products purchased hereunder is in use by Purchaser, to give instruction to Purchaser’s personnel in all courses described above and all revisions thereto without charge, using materials supplied by Contractor. Such use by Purchaser of Contractor’s materials shall include the right to make derivative works and to reproduce the materials or derivative work solely for the permitted use, which creation, use, and reproduction shall not be a violation of or infringement upon any patent, copyright, or other proprietary right of Contractor. The above rights shall be at no additional charge.

Contract Administration Legal Notices Any notice or demand or other communication required or permitted to be given under this Contract or applicable law shall be effective only if it is in writing and signed by the applicable party, properly addressed, and either delivered in person, or by a recognized courier service, or deposited with the United States Postal Service as first-class mail, postage prepaid certified mail or by electronic mail, to the parties at the contact information provided in this section. For purposes of complying with any provision in this Contract or applicable law that requires a “writing,” such communication, when digitally signed with a Washington State Licensed Certificate, shall be considered to be “in writing” or “written” to an extent no less than if it were in paper form.

[Purchaser]

Notices shall be effective upon receipt or four (4) Business Days after mailing, whichever is earlier. The notice address as provided herein may be changed by written notice given as provided above.

In the event that a subpoena or other legal process commenced by a third party in any way concerning the Services provided pursuant to this Contract is served upon Vendor or Purchaser, such party agrees to notify the other party in the most expeditious fashion possible following receipt of such subpoena or other legal process. Vendor and Purchaser further agree to cooperate with the other party in any lawful effort by the other party to contest the legal validity of such subpoena or other legal process commenced by a third party.

Purchaser [Project or Business] Manager Purchaser shall appoint [name] who will be the Purchaser [Project or Business] Manager for this Contract and will provide oversight of the activities conducted hereunder. Purchaser [Project or Business] Manager will be the principal contact for Vendor concerning business activities under this Contract. Purchaser shall notify Vendor, in writing, when there is a new Purchaser [Project or Business] Manager assigned to this Contract.

Vendor Account Manager Vendor shall appoint an Account Manager for Purchaser’s account under this Contract who will provide oversight of Vendor activities conducted hereunder. Vendor’s Account Manager will be the principal point of contact for Purchaser concerning Vendor’s performance under this Contract. Vendor shall notify Purchaser Contract Administrator and Purchaser [Project or Business] Manager, in writing, when there is a new Vendor Account Manager assigned to this Contract. The Vendor Account Manager information is:

Vendor Account Manager:

Address:

Section Headings, Incorporated Documents and Order of Precedence The headings used herein are inserted for convenience only and shall not control or affect the meaning or construction of any of the sections.

Each of the documents listed below is, by this reference, incorporated into this Contract as though fully set forth herein.

Schedules A, and B [if applicable]; [include other Schedules, if appropriate] [Purchaser] [RFX] dated [date];

Vendor’s Response to [Purchaser] [RFX] dated [date];

Any SOW entered into pursuant to this Contract;

The terms and conditions contained on Purchaser’s purchase documents, if used; and All Vendor or manufacturer publications, written materials and schedules, charts, diagrams, tables, descriptions, other written representations and any other supporting materials Vendor made available to Purchaser and used to effect the sale of Services to Purchaser.

In the event of any inconsistency in this Contract, the inconsistency shall be resolved in the following order of precedence:

Applicable federal and state statutes, laws, and regulations;

Sections of this Contract;

Schedule A; [include other Schedules, if appropriate] [Purchaser] [RFX] dated [date];

Any SOW entered into pursuant to this Contract;

Vendor’s Response to [Purchaser] [RFX] dated [date];

The terms and conditions contained on Purchaser’s order documents, if used; and All Vendor or manufacturer publications, written materials and schedules, charts, diagrams, tables, descriptions, other written representations and any other supporting materials Vendor made available to Purchaser and used to effect the sale of Services to Purchaser.

Entire Agreement This Contract sets forth the entire agreement between the parties with respect to the subject matter hereof and except as provided in the section titled Vendor Commitments, Warranties and Representations, understandings, agreements, representations, or warranties not contained in this Contract or a written amendment hereto shall not be binding on either party. Except as provided herein, no alteration of any of the terms, conditions, delivery, Price, quality, or Specifications of this Contract will be effective without the written consent of both parties.

Authority for Modifications and Amendments No modification, amendment, alteration, addition, or waiver of any section or condition of this Contract or any SOW under this Contract shall be effective or binding unless it is in writing and signed by Purchaser and Vendor Contracting Officers. Only Purchaser Contracting Officer shall have the express, implied, or apparent authority to alter, amend, modify, add, or waive any section or condition of this Contract or SOW on behalf of Purchaser.

Independent Status of Vendor In the performance of this Contract, the parties will be acting in their individual, corporate or governmental capacities and not as agents, employees, partners, joint venturers, or associates of one another. The parties intend that an independent contractor relationship will be created by this Contract. The employees or agents of one party shall not be deemed or construed to be the employees or agents of the other party for any purpose whatsoever. Vendor shall not make any claim of right, privilege or benefit which would accrue to an employee under chapter 41.06 RCW or Title 51 RCW.

Governing Law This Contract shall be governed in all respects by the law and statutes of the state of Washington, without reference to conflict of law principles. The jurisdiction for any action hereunder shall be exclusively in the Superior Court for the state of Washington. The venue of any action hereunder shall be in the Superior Court for Thurston County, Washington.

Subcontractors Vendor may, with prior written permission from Purchaser Contracting Officer, which consent shall not be unreasonably withheld, enter into subcontracts with third parties for its performance of any part of Vendor’s duties and obligations. In no event shall the existence of a subcontract operate to release or reduce the liability of Vendor to Purchaser for any breach in the performance of Vendor’s duties. For purposes of this Contract, Vendor agrees that all Subcontractors shall be held to be agents of Vendor. Vendor shall be liable for any loss or damage to Purchaser, including but not limited to personal injury, physical loss, harassment of Purchaser employee, or violations of the Patent and Copyright Indemnification, Protection of Purchaser’s Confidential Information, and Ownership/Rights in Data sections of this Contract occasioned by the acts or omissions of Vendor’s Subcontractors, their agents or employees. The Patent and Copyright Indemnification, Protection of Purchaser’s Confidential Information, Ownership/Rights in Data, Publicity and Review of Vendor’s Records sections of this Contract shall apply to all Subcontractors.

Extention Pending Negotiations With Respect to Amending or Extending the Contract So long as the parties are negotiating in good faith for changes in this Contract then the term of this Contract shall be automatically extended on the same terms and conditions such that termination occurs not less than 6 months after the end of such good faith negotiations. The end of good faith negotiations may be declared in writing by either party. Following such declaration, there shall be a 30 day period in which either party may provide written notice to the other party of its intent to terminate this Contract at the end of the extended Contract term. The purpose of this section is to ensure that neither party is forced to arbitrarily conclude negotiations for a lack of time to address budgetary or operational concerns and to provide an opportunity for provision of timely termination notice after negotiations are concluded.

Assignment Either party may assign this Agreement and its obligations hereunder to any successor to its business by merger or consolidation or to any party acquiring substantially all of the assets of the assignor’s business that is the subject of the Contract, provided the assigning party causes the assignee to assume in writing all obligations of the assignor under this Agreement and provides written notcie to the other party of such assumption. The rights and obligations of this Agreement shall bind and benefit any successors or assigns of the parties.

Purchaser may assign this Contract to any public agency, commission, board, or the like, within the political boundaries of the state of Washington, provided that such assignment shall not operate…