7900823310TC.pdf

APPROVED

DEPT. OF AUDIT & CONTROL

Jun 26 2025 James M. Iwaneczko

FOR THE STATE COMPTROLLER

W441202 Typewriter President/CEO

EV Charging En Route Solution rev (1) 03 MAR 2025

WEX EV CHARGING EN ROUTE SOLUTION

ENROLLMENT SCHEDULE

This WEX EV Charging En Route Solution Enrollment Schedule (“Schedule”) is at the request of the entity listed below (“Company”). Upon WEX Bank’s (“Issuer”) approval of Company’s enrollment, this Schedule will govern the provision of the Solution (as defined hereunder) by Issuer to Company, and will be subject to the terms of the WEX Account and Services Agreement between Company and Issuer (“Agreement”).

Capitalized terms used in this Schedule that are not otherwise defined shall have the meanings set forth in the General Terms.

Company Name:

Company Address: City/State/Zip:

New Customer Existing Customer Account Number:

Tax Exempt Organization

EV CHARGING EN ROUTE SOLUTION (“SOLUTION”)

Company wishes to enable Card acceptance or payment via an Authorized Payment Device (as defined below) at certain electric vehicle (“EV”) charging stations, including those operated by ChargePoint (as defined herein) operators, that participate in the WEX Inc. card network (each, an “EV Merchant”) pursuant to the terms set forth in this Schedule and the terms of the Agreement.

FEES, BILLING, AND PAYMENT

EV Enabled Card Fee. The Company may choose between either of the fee options below:

◻ Monthly fee of $4.00 for each Card that is enabled for Transactions at EV Charging stations. The fee applies to each Card enabled on any day of a given calendar month.

◻ EV Transaction Fee of $1.50 for each Transaction with a CPO Merchant on the Card.

Whichever fee selected by Company will be referred to as the “EV Fee” for purposes of this Enrollment.

Authorized Payment Device Replacement Fee. Company will be provided one radio frequency identification (RFID) device to use as an Authorized Payment Device (as defined below) for each enabled Card at no additional cost. If a RFID device needs to be replaced, an additional RFID device will be provided and Company will be charged $10.00 per additional RFID device, with the original RFID to be disabled.

Payment Terms. Billing for purchases made with an Authorized Payment Device shall be pursuant to the terms of the Agreement.

No Rebates. Any purchases made through use of an Authorized Payment Device shall not be eligible for any Rebate provided under the Agreement.

TERMS AND CONDITIONS

1. Solution Description. Pursuant to the terms of this Schedule and the Agreement, Company will use an Authorized Payment Device to purchase EV charging from EV Merchants. An “Authorized Payment Device” means any RFID device, a physical form of payment or a mobile application, in any case specified and provided by Issuer. Subject to completing the request in section 2.1, Company authorizes Issuer to connect an EV-enabled Card to an Authorized Payment Device to initiate and complete purchases from EV Merchants. All terms and conditions of the Agreement applicable to "Cards" or to Transactions using a Card shall also apply to the Authorized Payment Devices and Transactions using an Authorized Payment Device, except to the extent expressly set forth otherwise in this Schedule.

2. Company Responsibilities

2.1 Upon acceptance and approval of this completed Schedule by Company, Issuer will enable one or more Cards designated by Company for use for purchases from EV Merchants. Upon such enablement by Issuer, any individual that uses the Authorized Payment Device linked to that Card shall be considered an “Authorized EV Charging User.” Company may add or change Cards or Authorized EV Charging Users, or request additional RFID devices in the online portal.

2.2 Company will comply with, and shall ensure all Authorized EV Charging Users comply with, any reasonable instructions provided by Issuer or the applicable EV Merchant pertaining to use of EV charging, the EV charging station equipment and related applications, any mobile applications intended for use with the Solution, and any Authorized Payment Devices.

2.3 ChargePoint Charging. This section applies if Company or Authorized EV Charging Users purchase EV charging or related products and services from ChargePoint and its network operators. The Authorized Payment Device provided to Company or any Authorized EV Charging User may include or utilize services, software and/or other proprietary materials of ChargePoint, Inc. (“ChargePoint”) in connection with Company’s or any Authorized EV Charging User’s accessibility to electric vehicle charging services provided via ChargePoint and its network (collectively, “ChargePoint Technology”). Company hereby represents and warrants that its use and any Authorized EV Charging User’s use of any of the Charge Technology shall be governed by and subject to the following: (i) ChargePoint Terms of Service (found at:

https://na.chargepoint.com/terms_mobile?instance=NA-US&country_id=233&locale=en) (collectively, “ChargePoint Terms”); and (ii) ChargePoint, as a third-party beneficiary with respect to the ChargePoint Terms, shall be entitled to enforce any of the ChargePoint Terms against Company with regards to Company’s use or any Authorized EV Charging User’s use of the ChargePoint Technology.

With sole respect to the Enrollment, the following Special Terms apply if a Company is a state or local government entity (“Special Entity”) and only to the extent that any offerings provided under the Enrollment are being used in a Company’s official capacity as a state or local https://na.chargepoint.com/terms_mobile?instance=NA-US&country_id=233&locale=en https://na.chargepoint.com/terms_mobile?instance=NA-US&country_id=233&locale=en

EV Charging En Route Solution rev (1) 03 MAR 2025 government entity (“Special Purpose”). In the event of any conflict or inconsistency between the Enrollment terms, including the ChargePoint Terms of Service for ChargePoint® Accounts and the Special Terms, the following Special Terms shall prevail for the Special Purpose.

Special Terms:

I. Governing law and venue shall be those of the respective state of the Special Entity;

II. Limitation of liability terms in the Enrollment terms shall not apply to the Special Entity;

III. Indemnification terms in the Enrollment terms shall not apply to the Special Entity; and IV. Arbitration terms in the Enrollment terms shall not apply to the Special Entity.

2.4 Company will immediately notify Issuer when an Authorized EV Charging User leaves the Company, retires or is absent for an extended period of time.

3. Issuer Responsibilities. Upon receipt of a request in the online portal to enable a Card for EV charging, Issuer will enable the applicable Account for EV charging and provide an Authorized Payment Device if requested by Company. Upon enablement of the Account, Company may use a mobile application designated by Issuer for EV charging upon downloading and/or updating the mobile application, as applicable.

If an Authorized EV Charging User already has access rights to use EV charging with an EV Merchant, Issuer may “link” preexisting account information. Use of a mobile application may be subject to additional terms and conditions as set forth in the relevant application. Company must comply and must ensure that its Authorized EV Charging Users comply with the policies and terms of use posted on such mobile applications or otherwise provided to Company by Issuer.

4. Data Collection and Usage

4.1 Issuer owns all data collected by or on behalf of Issuer in connection with Company’s use of the Solution, including but not limited to transactional data collected at EV charging stations. Any feedback provided by Company in connection with its use of the Solution shall be owned by Issuer, including any suggested improvements to the Solution.

4.2 Activation of an Authorized Payment Device may require Issuer to share certain Company and Authorized EV Charging User information with the applicable EV Merchant, including contact information, VIN information and usage associated with Company’s Account.

Additionally, for Cards issued with the name of an Authorized EV Charging User, Issuer may ask for personally identifiable information from the Authorized EV Charging Users and may share this information with the applicable EV Merchant in order for it to provide and support services related to the access to and provision of the Solution.

5. Controls. The application of any Card Controls may not be available for purchases on an Authorized Payment Device when an RFID is used and Company agrees to be liable for purchases made with a EV Merchant even if a Control has been exceeded for any Transaction. Subject to the terms of the Agreement, Company remains liable for all EV charging session fees billed to its Account.

6. Term; Termination. The term of this Schedule will commence on the date of the last signature below (“Enrollment Effective Date”) and will continue on an ongoing basis until either Party terminates as set forth in this section or upon the termination of the Agreement, whichever is earlier. Either Party may terminate this Schedule at any time for any reason upon thirty (30) days’ prior written notice to the other Party, provided that Company will not be entitled to a refund of any EV Fees paid and must pay all amounts due through the effective date of termination. Issuer may also suspend usage of any Authorized Payment Device in its sole discretion, including if it reasonably believes it is being used for any unauthorized or fraudulent purpose. Upon termination of this Schedule, Company shall return all Authorized Payment Devices to Issuer within thirty (30) days of the effective date of termination.

7. Miscellaneous. Company understands that Company’s participation in the Solution is subject to acceptance by and approval of Issuer. Upon such approval, which may be evidenced by Issuer’s commencement of services, the terms and conditions herein, in addition to the relevant terms of the Agreement (including any subsequent amendments, modifications, or replacements thereto), shall govern the provision of services and products herein. If there is any conflict between the provisions in this Schedule and the provisions in the Agreement, the provisions in this Schedule shall prevail but only with respect to the Solution. Issuer may modify the terms and conditions of this Schedule, including any applicable fees, pursuant to the terms of the Agreement.

IN WITNESS WHEREOF, this Schedule has been executed by duly authorized representative of the Company as of the date set forth below and made effective as of the date of signature.

Company:

Authorized Signature:

Printed Name:

Title:

Date:

jiwaneczko OSC_Approval

June 2023

APPENDIX A

STANDARD CLAUSES FOR NEW YORK STATE CONTRACTS

PLEASE RETAIN THIS DOCUMENT

FOR FUTURE REFERENCE.

STANDARD CLAUSES FOR NYS CONTRACTS APPENDIX A

Page 2 June 2023

TABLE OF CONTENTS

Page

1. Executory Clause 3

2. Non-Assignment Clause 3

3. Comptroller’s Approval 3

4. Workers’ Compensation Benefits 3

5. Non-Discrimination Requirements 3

6. Wage and Hours Provisions 3-4

7. Non-Collusive Bidding Certification 4

8. International Boycott Prohibition 4

9. Set-Off Rights 4

10. Records 4

11. Identifying Information and Privacy Notification 4

12. Equal Employment Opportunities For Minorities and Women 5

13. Conflicting Terms 5

14. Governing Law 5

15. Late Payment 5

16. No Arbitration 5

17. Service of Process 5

18. Prohibition on Purchase of Tropical Hardwoods 5-6

19. MacBride Fair Employment Principles 6

20. Omnibus Procurement Act of 1992 6

21. Reciprocity and Sanctions Provisions 6

22. Compliance with Breach Notification and Data Security Laws 6

23. Compliance with Consultant Disclosure Law 6

24. Procurement Lobbying 7

25. Certification of Registration to Collect Sales and Compensating Use Tax by Certain 7

State Contractors, Affiliates and Subcontractors

26. Iran Divestment Act 7

27. Admissibility of Contract 7

Page 3 June 2023

STANDARD CLAUSES FOR NYS CONTRACTS

The parties to the attached contract, license, lease, amendment or other agreement of any kind (hereinafter, “the contract” or

“this contract”) agree to be bound by the following clauses which are hereby made a part of the contract (the word

“Contractor” herein refers to any party other than the State, whether a contractor, licenser, licensee, lessor, lessee or any other party):

1. EXECUTORY CLAUSE. In accordance with Section 41 of the State Finance Law, the State shall have no liability under this contract to the Contractor or to anyone else beyond funds appropriated and available for this contract.

2. NON-ASSIGNMENT CLAUSE. In accordance with

Section 138 of the State Finance Law, this contract may not be assigned by the Contractor or its right, title or interest therein assigned, transferred, conveyed, sublet or otherwise disposed of without the State’s previous written consent, and attempts to do so are null and void. Notwithstanding the foregoing, such prior written consent of an assignment of a contract let pursuant to

Article XI of the State Finance Law may be waived at the discretion of the contracting agency and with the concurrence of the State Comptroller where the original contract was subject to the State Comptroller’s approval, where the assignment is due to a reorganization, merger or consolidation of the

Contractor’s business entity or enterprise. The State retains its right to approve an assignment and to require that any

Contractor demonstrate its responsibility to do business with the State. The Contractor may, however, assign its right to receive payments without the State’s prior written consent unless this contract concerns Certificates of Participation pursuant to Article 5-A of the State Finance Law.

3. COMPTROLLER’S APPROVAL. In accordance with

Section 112 of the State Finance Law, if this contract exceeds

$50,000 (or $75,000 for State University of New York or City

University of New York contracts for goods, services, construction and printing, and $150,000 for State University

Health Care Facilities) or if this is an amendment for any amount to a contract which, as so amended, exceeds said statutory amount, or if, by this contract, the State agrees to give something other than money when the value or reasonably estimated value of such consideration exceeds $25,000, it shall not be valid, effective or binding upon the State until it has been approved by the State Comptroller and filed in his office.

Comptroller’s approval of contracts let by the Office of General

Services, either for itself or its customer agencies by the Office of General Services Business Services Center, is required when such contracts exceed $85,000. Comptroller’s approval of contracts established as centralized contracts through the Office of General Services is required when such contracts exceed

$125,000, and when a purchase order or other procurement transaction issued under such centralized contract exceeds

$200,000.

4. WORKERS’ COMPENSATION BENEFITS. In accordance with Section 142 of the State Finance Law, this contract shall be void and of no force and effect unless the

Contractor shall provide and maintain coverage during the life of this contract for the benefit of such employees as are required to be covered by the provisions of the Workers’ Compensation

Law.

5. NON-DISCRIMINATION REQUIREMENTS. To the extent required by Article 15 of the Executive Law (also known as the Human Rights Law) and all other State and Federal statutory and constitutional non-discrimination provisions, the

Contractor will not discriminate against any employee or applicant for employment, nor subject any individual to harassment, because of age, race, creed, color, national origin, citizenship or immigration status, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim status or because the individual has opposed any practices forbidden under the

Human Rights Law or has filed a complaint, testified, or assisted in any proceeding under the Human Rights Law.

Furthermore, in accordance with Section 220-e of the Labor

Law, if this is a contract for the construction, alteration or repair of any public building or public work or for the manufacture, sale or distribution of materials, equipment or supplies, and to the extent that this contract shall be performed within the State of New York, Contractor agrees that neither it nor its subcontractors shall, by reason of race, creed, color, disability, sex, or national origin: (a) discriminate in hiring against any

New York State citizen who is qualified and available to perform the work; or (b) discriminate against or intimidate any employee hired for the performance of work under this contract.

If this is a building service contract as defined in Section 230 of the Labor Law, then, in accordance with Section 239 thereof, Contractor agrees that neither it nor its subcontractors shall by reason of race, creed, color, national origin, age, sex or disability: (a) discriminate in hiring against any New York

State citizen who is qualified and available to perform the work;

or (b) discriminate against or intimidate any employee hired for the performance of work under this contract. Contractor is subject to fines of $50.00 per person per day for any violation of Section 220-e or Section 239 as well as possible termination of this contract and forfeiture of all moneys due hereunder for a second or subsequent violation.

6. WAGE AND HOURS PROVISIONS. If this is a public work contract covered by Article 8 of the Labor Law or a building service contract covered by Article 9 thereof, neither

Contractor’s employees nor the employees of its subcontractors may be required or permitted to work more than the number of hours or days stated in said statutes, except as otherwise provided in the Labor Law and as set forth in prevailing wage and supplement schedules issued by the State Labor

Department. Furthermore, Contractor and its subcontractors must pay at least the prevailing wage rate and pay or provide the prevailing supplements, including the premium rates for overtime pay, as determined by the State Labor Department in

Page 4 June 2023 accordance with the Labor Law. Additionally, effective April

28, 2008, if this is a public work contract covered by Article 8 of the Labor Law, the Contractor understands and agrees that the filing of payrolls in a manner consistent with Subdivision 3-a of Section 220 of the Labor Law shall be a condition precedent to payment by the State of any State approved sums due and owing for work done upon the project.

7. NON-COLLUSIVE BIDDING CERTIFICATION. In accordance with Section 139-d of the State Finance Law, if this contract was awarded based upon the submission of bids, Contractor affirms, under penalty of perjury, that its bid was arrived at independently and without collusion aimed at restricting competition. Contractor further affirms that, at the time Contractor submitted its bid, an authorized and responsible person executed and delivered to the State a non-collusive bidding certification on Contractor’s behalf.

8. INTERNATIONAL BOYCOTT PROHIBITION. In accordance with Section 220-f of the Labor Law and Section

139-h of the State Finance Law, if this contract exceeds $5,000, the Contractor agrees, as a material condition of the contract, that neither the Contractor nor any substantially owned or affiliated person, firm, partnership or corporation has participated, is participating, or shall participate in an international boycott in violation of the federal Export

Administration Act of 1979 (50 USC App. Sections 2401 et seq.) or regulations thereunder. If such Contractor, or any of the aforesaid affiliates of Contractor, is convicted or is otherwise found to have violated said laws or regulations upon the final determination of the United States Commerce

Department or any other appropriate agency of the United

States subsequent to the contract’s execution, such contract, amendment or modification thereto shall be rendered forfeit and void. The Contractor shall so notify the State Comptroller within five (5) business days of such conviction, determination or disposition of appeal (2 NYCRR § 105.4).

9. SET-OFF RIGHTS. The State shall have all of its common law, equitable and statutory rights of set-off. These rights shall include, but not be limited to, the State’s option to withhold for the purposes of set-off any moneys due to the Contractor under this contract up to any amounts due and owing to the State with regard to this contract, any other contract with any State department or agency, including any contract for a term commencing prior to the term of this contract, plus any amounts due and owing to the State for any other reason including, without limitation, tax delinquencies, fee delinquencies or monetary penalties relative thereto. The State shall exercise its set-off rights in accordance with normal State practices including, in cases of set-off pursuant to an audit, the finalization of such audit by the State agency, its representatives, or the State Comptroller.

10. RECORDS. The Contractor shall establish and maintain complete and accurate books, records, documents, accounts and other evidence directly pertinent to performance under this contract (hereinafter, collectively, the “Records”). The Records must be kept for the balance of the calendar year in which they were made and for six (6) additional years thereafter. The State

Comptroller, the Attorney General and any other person or entity authorized to conduct an examination, as well as the agency or agencies involved in this contract, shall have access to the Records during normal business hours at an office of the

Contractor within the State of New York or, if no such office is available, at a mutually agreeable and reasonable venue within the State, for the term specified above for the purposes of inspection, auditing and copying. The State shall take reasonable steps to protect from public disclosure any of the

Records which are exempt from disclosure under Section 87 of the Public Officers Law (the “Statute”) provided that: (i) the

Contractor shall timely inform an appropriate State official, in writing, that said records should not be disclosed; and (ii) said records shall be sufficiently identified; and (iii) designation of said records as exempt under the Statute is reasonable. Nothing contained herein shall diminish, or in any way adversely affect, the State’s right to discovery in any pending or future litigation.

11. IDENTIFYING INFORMATION AND PRIVACY

NOTIFICATION. (a) Identification Number(s). Every invoice or New York State Claim for Payment submitted to a

New York State agency by a payee, for payment for the sale of goods or services or for transactions (e.g., leases, easements, licenses, etc.) related to real or personal property must include the payee’s identification number. The number is any or all of the following: (i) the payee’s Federal employer identification number, (ii) the payee’s Federal social security number, and/or

(iii) the payee’s Vendor Identification Number assigned by the

Statewide Financial System. Failure to include such number or numbers may delay payment. Where the payee does not have such number or numbers, the payee, on its invoice or Claim for

Payment, must give the reason or reasons why the payee does not have such number or numbers.

(b) Privacy Notification. (1) The authority to request the above personal information from a seller of goods or services or a lessor of real or personal property, and the authority to maintain such information, is found in Section 5 of the State Tax Law.

Disclosure of this information by the seller or lessor to the State is mandatory. The principal purpose for which the information is collected is to enable the State to identify individuals, businesses and others who have been delinquent in filing tax returns or may have understated their tax liabilities and to generally identify persons affected by the taxes administered by the Commissioner of Taxation and Finance. The information will be used for tax administration purposes and for any other purpose authorized by law. (2) The personal information is requested by the purchasing unit of the agency contracting to purchase the goods or services or lease the real or personal property covered by this contract or lease. The information is maintained in the Statewide Financial System by the Vendor

Management Unit within the Bureau of State Expenditures, Office of the State Comptroller, 110 State Street, Albany, New

York 12236.

Page 5 June 2023

12. EQUAL EMPLOYMENT OPPORTUNITIES FOR

MINORITIES AND WOMEN. In accordance with Section

312 of the Executive Law and 5 NYCRR Part 143, if this contract is: (i) a written agreement or purchase order instrument, providing for a total expenditure in excess of

$25,000.00, whereby a contracting agency is committed to expend or does expend funds in return for labor, services, supplies, equipment, materials or any combination of the foregoing, to be performed for, or rendered or furnished to the contracting agency; or (ii) a written agreement in excess of

$100,000.00 whereby a contracting agency is committed to expend or does expend funds for the acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements thereon; or (iii) a written agreement in excess of $100,000.00 whereby the owner of a State assisted housing project is committed to expend or does expend funds for the acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements thereon for such project, then the following shall apply and by signing this agreement the Contractor certifies and affirms that it is Contractor’s equal employment opportunity policy that:

(a) The Contractor will not discriminate against employees or applicants for employment because of race, creed, color, national origin, sex, age, disability or marital status, shall make and document its conscientious and active efforts to employ and utilize minority group members and women in its work force on State contracts and will undertake or continue existing programs of affirmative action to ensure that minority group members and women are afforded equal employment opportunities without discrimination. Affirmative action shall mean recruitment, employment, job assignment, promotion, upgradings, demotion, transfer, layoff, or termination and rates of pay or other forms of compensation;

(b) at the request of the contracting agency, the Contractor shall request each employment agency, labor union, or authorized representative of workers with which it has a collective bargaining or other agreement or understanding, to furnish a written statement that such employment agency, labor union or representative will not discriminate on the basis of race, creed, color, national origin, sex, age, disability or marital status and that such union or representative will affirmatively cooperate in the implementation of the Contractor’s obligations herein; and

(c) the Contractor shall state, in all solicitations or advertisements for employees, that, in the performance of the

State contract, all qualified applicants will be afforded equal employment opportunities without discrimination because of race, creed, color, national origin, sex, age, disability or marital status.

Contractor will include the provisions of “(a), (b) and (c)” above, in every subcontract over $25,000.00 for the construction, demolition, replacement, major repair, renovation, planning or design of real property and improvements thereon (the “Work”) except where the Work is for the beneficial use of the Contractor. Section 312 does not apply to: (i) work, goods or services unrelated to this contract;

or (ii) employment outside New York State. The State shall consider compliance by a contractor or subcontractor with the requirements of any federal law concerning equal employment opportunity which effectuates the purpose of this clause. The contracting agency shall determine whether the imposition of the requirements of the provisions hereof duplicate or conflict with any such federal law and if such duplication or conflict exists, the contracting agency shall waive the applicability of

Section 312 to the extent of such duplication or conflict.

Contractor will comply with all duly promulgated and lawful rules and regulations of the Department of Economic

Development’s Division of Minority and Women’s Business

Development pertaining hereto.

13. CONFLICTING TERMS. In the event of a conflict between the terms of the contract (including any and all attachments thereto and amendments thereof) and the terms of this Appendix A, the terms of this Appendix A shall control.

14. GOVERNING LAW. This contract shall be governed by the laws of the State of New York except where the Federal supremacy clause requires otherwise.

15. LATE PAYMENT. Timeliness of payment and any interest to be paid to Contractor for late payment shall be governed by Article 11-A of the State Finance Law to the extent required by law.

16. NO ARBITRATION. Disputes involving this contract, including the breach or alleged breach thereof, may not be submitted to binding arbitration (except where statutorily authorized), but must, instead, be heard in a court of competent jurisdiction of the State of New York.

17. SERVICE OF PROCESS. In addition to the methods of service allowed by the State Civil Practice Law & Rules

(“CPLR”), Contractor hereby consents to service of process upon it by registered or certified mail, return receipt requested.

Service hereunder shall be complete upon Contractor’s actual receipt of process or upon the State’s receipt of the return thereof by the United States Postal Service as refused or undeliverable. Contractor must promptly notify the State, in writing, of each and every change of address to which service of process can be made. Service by the State to the last known address shall be sufficient. Contractor will have thirty (30) calendar days after service hereunder is complete in which to respond.

18. PROHIBITION ON PURCHASE OF TROPICAL

HARDWOODS. The Contractor certifies and warrants that all wood products to be used under this contract award will be in accordance with, but not limited to, the specifications and provisions of Section 165 of the State Finance Law, (Use of

Tropical Hardwoods) which prohibits purchase and use of tropical hardwoods, unless specifically exempted, by the State or any governmental agency or political subdivision or public benefit corporation. Qualification for an exemption under this

Page 6 June 2023 law will be the responsibility of the contractor to establish to meet with the approval of the State.

In addition, when any portion of this contract involving the use of woods, whether supply or installation, is to be performed by any subcontractor, the prime Contractor will indicate and certify in the submitted bid proposal that the subcontractor has been informed and is in compliance with specifications and provisions regarding use of tropical hardwoods as detailed in

§ 165 State Finance Law. Any such use must meet with the approval of the State; otherwise, the bid may not be considered responsive. Under bidder certifications, proof of qualification for exemption will be the responsibility of the Contractor to meet with the approval of the State.

19. MACBRIDE FAIR EMPLOYMENT PRINCIPLES. In accordance with the MacBride Fair Employment Principles

(Chapter 807 of the Laws of 1992), the Contractor hereby stipulates that the Contractor either (a) has no business operations in Northern Ireland, or (b) shall take lawful steps in good faith to conduct any business operations in Northern

Ireland in accordance with the MacBride Fair Employment

Principles (as described in Section 165 of the New York State

Finance Law), and shall permit independent monitoring of compliance with such principles.

20. OMNIBUS PROCUREMENT ACT OF 1992. It is the policy of New York State to maximize opportunities for the participation of New York State business enterprises, including minority- and women-owned business enterprises as bidders, subcontractors and suppliers on its procurement contracts.

Information on the availability of New York State subcontractors and suppliers is available from:

NYS Department of Economic Development

Division for Small Business and Technology Development

625 Broadway

Albany, New York 12245

Telephone: 518-292-5100

A directory of certified minority- and women-owned business enterprises is available from:

NYS Department of Economic Development

Division of Minority and Women’s Business Development

633 Third Avenue 33rd Floor

New York, NY 10017

646-846-7364 email: mwbebusinessdev@esd.ny.gov https://ny.newnycontracts.com/FrontEnd/searchcertifieddir ectory.asp

The Omnibus Procurement Act of 1992 (Chapter 844 of the

Laws of 1992, codified in State Finance Law § 139-i and Public

Authorities Law § 2879(3)(n)–(p)) requires that by signing this bid proposal or contract, as applicable, Contractors certify that whenever the total bid amount is greater than $1 million:

(a) The Contractor has made reasonable efforts to encourage the participation of New York State Business Enterprises as suppliers and subcontractors, including certified minority- and women-owned business enterprises, on this project, and has retained the documentation of these efforts to be provided upon request to the State;

(b) The Contractor has complied with the Federal Equal

Opportunity Act of 1972 (P.L. 92-261), as amended;

(c) The Contractor agrees to make reasonable efforts to provide notification to New York State residents of employment opportunities on this project through listing any such positions with the Job Service Division of the New York State

Department of Labor, or providing such notification in such manner as is consistent with existing collective bargaining contracts or agreements. The Contractor agrees to document these efforts and to provide said documentation to the State upon request; and

(d) The Contractor acknowledges notice that the State may seek to obtain offset credits from foreign countries as a result of this contract and agrees to cooperate with the State in these efforts.

21. RECIPROCITY AND SANCTIONS PROVISIONS.

Bidders are hereby notified that if their principal place of business is located in a country, nation, province, state or political subdivision that penalizes New York State vendors, and if the goods or services they offer will be substantially produced or performed outside New York State, the Omnibus

Procurement Act 1994 and 2000 amendments (Chapter 684 and

Chapter 383, respectively, codified in State Finance Law

§ 165(6) and Public Authorities Law § 2879(5)) require that they be denied contracts which they would otherwise obtain.

NOTE: As of May 2023, the list of discriminatory jurisdictions subject to this provision includes the states of South Carolina, Alaska, West Virginia, Wyoming, Louisiana and Hawaii.

22. COMPLIANCE WITH BREACH NOTIFICATION

AND DATA SECURITY LAWS. Contractor shall comply with the provisions of the New York State Information Security

Breach and Notification Act (General Business Law §§ 899-aa and 899-bb and State Technology Law § 208).

23. COMPLIANCE WITH CONSULTANT

DISCLOSURE LAW. If this is a contract for consulting services, defined for purposes of this requirement to include analysis, evaluation, research, training, data processing, computer programming, engineering, environmental, health, and mental health services, accounting, auditing, paralegal, legal or similar services, then, in accordance with Section 163

(4)(g) of the State Finance Law (as amended by Chapter 10 of the Laws of 2006), the Contractor shall timely, accurately and properly comply with the requirement to submit an annual employment report for the contract to the agency that awarded the contract, the Department of Civil Service and the State

Comptroller.

mailto:mwbebusinessdev@esd.ny.gov https://gcc02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fny.newnycontracts.com%2FFrontEnd%2Fsearchcertifieddirectory.asp&data=05%7C01%7CBradley.Allen%40ogs.ny.gov%7C07e93ddbe7724c0737a408db5793a42e%7Cf46cb8ea79004d108ceb80e8c1c81ee7%7C0%7C0%7C638200063847647689%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdata=1QagyzmFXhFPSsIsYt57VrXQpxA4Tw6kD6PHIqJx7wM%3D&reserved=0 https://gcc02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fny.newnycontracts.com%2FFrontEnd%2Fsearchcertifieddirectory.asp&data=05%7C01%7CBradley.Allen%40ogs.ny.gov%7C07e93ddbe7724c0737a408db5793a42e%7Cf46cb8ea79004d108ceb80e8c1c81ee7%7C0%7C0%7C638200063847647689%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdata=1QagyzmFXhFPSsIsYt57VrXQpxA4Tw6kD6PHIqJx7wM%3D&reserved=0

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24. PROCUREMENT LOBBYING. To the extent this agreement is a “procurement contract” as defined by State

Finance Law §§ 139-j and 139-k, by signing this agreement the contractor certifies and affirms that all disclosures made in accordance with State Finance Law §§ 139-j and 139-k are complete, true and accurate. In the event such certification is found to be intentionally false or intentionally incomplete, the

State may terminate the agreement by providing written notification to the Contractor in accordance with the terms of the agreement.

25. CERTIFICATION OF REGISTRATION TO

COLLECT SALES AND COMPENSATING USE TAX BY

CERTAIN STATE CONTRACTORS, AFFILIATES AND

SUBCONTRACTORS.

To the extent this agreement is a contract as defined by Tax Law

§ 5-a, if the contractor fails to make the certification required by Tax Law § 5-a or if during the term of the contract, the

Department of Taxation and Finance or the covered agency, as defined by Tax Law § 5-a, discovers that the certification, made under penalty of perjury, is false, then such failure to file or false certification shall be a material breach of this contract and this contract may be terminated, by providing written notification to the Contractor in accordance with the terms of the agreement, if the covered agency determines that such action is in the best interest of the State.

26. IRAN DIVESTMENT ACT. By entering into this

Agreement, Contractor certifies in accordance with State

Finance Law § 165-a that it is not on the “Entities Determined to be Non-Responsive Bidders/Offerers pursuant to the New

York State Iran Divestment Act of 2012” (“Prohibited Entities

List”) posted at: https://ogs.ny.gov/iran-divestment-act-2012

Contractor further certifies that it will not utilize on this

Contract any subcontractor that is identified on the Prohibited

Entities List. Contractor agrees that should it seek to renew or extend this Contract, it must provide the same certification at the time the Contract is renewed or extended. Contractor also agrees that any proposed Assignee of this Contract will be required to certify that it is not on the Prohibited Entities List before the contract assignment will be approved by the State.

During the term of the Contract, should the state agency receive information that a person (as defined in State Finance Law

§ 165-a) is in violation of the above-referenced certifications, the state agency will review such information and offer the person an opportunity to respond. If the person fails to demonstrate that it has ceased its engagement in the investment activity which is in violation of the Act within 90 days after the determination of such violation, then the state agency shall take such action as may be appropriate and provided for by law, rule, or contract, including, but not limited to, imposing sanctions, seeking compliance, recovering damages, or declaring the

Contractor in default.

The state agency reserves the right to reject any bid, request for assignment, renewal or extension for an entity that appears on the Prohibited Entities List prior to the award, assignment, renewal or extension of a contract, and to pursue a responsibility review with respect to any entity that is awarded a contract and appears on the Prohibited Entities list after contract award.

27. ADMISSIBILITY OF REPRODUCTION OF

CONTRACT. Notwithstanding the best evidence rule or any other legal principle or rule of evidence to the contrary, the

Contractor acknowledges and agrees that it waives any and all objections to the admissibility into evidence at any court proceeding or to the use at any examination before trial of an electronic reproduction of this contract, in the form approved by the State Comptroller, if such approval was required, regardless of whether the original of said contract is in existence.

https://ogs.ny.gov/iran-divestment-act-2012

GENERAL SPECIFICATIONS APPENDIX B

APRIL 2016

APPENDIX B

GENERAL SPECIFICATIONS

TABLE OF CONTENTS

GENERAL PAGE

1. Ethics Compliance 1

2. Definitions 1

BID SUBMISSION

3. International Bidding 3

4. Bid Opening 3

5. Late Bids 3

6. Confidential/Trade Secret Materials 3

7. Prevailing Wage Rates - Public Works and Building Services Contracts 3

8. Taxes 4

9. Expenses Prior to Contract Execution 4

10. Product References 4

11. Remanufactured, Recycled, Recyclable, or Recovered Materials 4

12. Products Manufactured in Public Institutions 4

13. Pricing 4

14. Site Inspection 5

15. Purchasing Card 5

BID EVALUATION

16. Bid Evaluation 5

17. Tie Bids 5

18. Quantity Changes Prior to Award 5

19. Timeframe for Offers 5

20. Debriefings 5

21. Contract Publicity 5

TERMS & CONDITIONS

22. Contract Creation/Execution 6

23. Contract Term – Extension 6

24. Official Use Only/No Personal Use 6

25. Participation in Centralized Contracts 6

26. Modification of Contract Terms 6

27. Scope Changes 6

28. Estimated/Specific Quantity Contracts 6

29. Emergency Contracts 6

30. Purchase Orders 7

31. Product Delivery 7

32. Weekend and Holiday Deliveries 7

33. Shipping/Receipt of Product 7

TERMS & CONDITIONS (CONT.) PAGE

34. Title and Risk of Loss for Products Other than Technology Products 7

35. Product Substitution 8

36. Rejected Product 8

37. Installation 8

38. Repaired or Replaced Products, Parts, or Components 8

39. Employees, Subcontractors and Agents 8

40. Assignment 8

41. Subcontractors and Suppliers 8

42. Suspension of Work 8

43. Termination 9

44. Savings/Force Majeure 9

45. Contract Invoicing 10

46. Default - Authorized User 10

47. Prompt Payments 10

48. Remedies for Breach 10

49. Assignment of Claim 11

50. Toxic Substances 11

51. Independent Contractor 11

52. Security 11

53. Cooperation with Third Parties 11

54. Warranties 11

55. Legal Compliance 12

56. Indemnification 12

57. Indemnification Relating to Infringement 13

58. Limitation of Liability 13

59. Dispute Resolution Procedures 13

To the extent the scope of the Solicitation or Contract includes the sale, development, maintenance, or use of information technology Products such as software, computer components, systems, or networks for the processing, and distribution, or storage, or storage of data, the following clauses shall govern, as applicable.

60. Software License Grant 14

61. Product Acceptance 15

62. Audit of Licensed Product Usage 16

63. No Hardstop or Passive License Monitoring 16

64. Ownership/Title to Project Deliverables 16

65. Proof of License 17

66. Changes to Product or Service Offerings 17

GENERAL

1. ETHICS COMPLIANCE All Bidders/Contractors and their employees must comply with the requirements of Sections 73 and 74 of the Public Officers Law, other State codes, rules, regulations and executive orders establishing ethical standards for the conduct of business with New York State. In signing the Bid, Bidder certifies full compliance with those provisions for any present or future dealings, transactions, sales, contracts, services, offers, relationships, etc., involving New York State and/or its employees. Failure to comply with those provisions may result in disqualification from the bidding process, termination of contract, and/or other civil or criminal proceedings as required by law.

2. DEFINITIONS Terms used herein shall have the following meanings:

a. AUTHORIZED USER Authorized User shall have the meaning set forth in State Finance Law Section 163(1)(k) and includes, but is not limited to, New York State Agencies, political subdivisions, local governments, public authorities, public school and fire districts, public and nonprofit libraries, and certain other nonpublic/nonprofit organizations.

b. BID A response to the Solicitation submitted by a Bidder to provide Products.

c. BIDDER Any person or entity who submits a response to the Solicitation. At the time that a Bidder executes a Contract with the State, the Bidder shall become a “Contractor.” See also “Contractor.”

d. BID SPECIFICATIONS A written description drafted by OGS or an Authorized User setting forth the specific terms of the intended procurement, which may include: physical or functional characteristics, the nature of a Product, any description of the work to be performed, Products to be provided, the necessary qualifications of the Bidder, the capacity and capability of the Bidder to successfully carry out the proposed Contract, or the process for achieving specific results and/or anticipated outcomes or any other requirement necessary to perform work. Where this Appendix B is incorporated in negotiated Contracts that have not been competitively solicited, the term “Bid Specifications” shall be deemed to refer to the terms and conditions set forth in the negotiated Contract and associated documentation.

e. COMMISSIONER The Commissioner of OGS or his or her designee, or, in the case of Bid Specifications issued by an Authorized User, the head of such Authorized User or his or her authorized representative.

f. CONTRACT The writings that contain the agreement of the Commissioner and the Contractor setting forth the total legal obligation between the parties as determined by applicable rules of law, and which most typically include the following classifications of public procurements:

1. Agency Specific Contracts Contracts where the written description for a Product or a particular scope of work is described and defined to meet the needs of one or more Authorized Users.

2. Centralized Contracts Single- or multiple-award Contracts where the written description for a Product or general scope of work is described and defined by OGS to meet the needs of Authorized Users. Centralized Contracts may be awarded through multiple awards or through adoption of another jurisdiction’s contract or on a sole source, single source, emergency, or competitive basis. Once established, procurements may be made from the selected Contractors without further competition or Mini-Bid unless otherwise required by the Contract.

3. Back-Drop Contracts Multiple-award Centralized

Contracts where OGS provides a written description for a Product or general scope of work to meet the needs of Authorized Users. Bids may be submitted either at a date and time certain or may be accepted on a continuous or periodic recruitment basis, as set forth in the Solicitation.

Selection of a Contractor from among Back-Drop contract holders for an actual Product, project or particular scope of work may be subsequently made as set forth in the Contract.

4. Piggyback Contract A Contract let by any department, agency or instrumentality of the United States government, or any department, agency, office, political subdivision or instrumentality of any state or group of states that is adopted and extended for use by OGS in accordance with the requirements of the State Finance Law.

5. Contract Award Letter A letter to the successful Bidder indicating acceptance of its Bid in response to a Solicitation.

Unless otherwise specified, the issuance of a letter of acceptance forms a Contract but is not an order for Product, and the Contractor should not take any action with respect to actual Contract deliveries except on the basis of Purchase Orders sent from Authorized Users.

g CONTRACT AWARD NOTIFICATION An announcement to Authorized Users that a Contract has been established.

h. CONTRACTOR Any successful Bidder to whom a Contract has been awarded by the Commissioner.

i. DOCUMENTATION The complete set of manuals (e.g., user, installation, instruction or diagnostic manuals) in either hard or electronic copy, that are necessary to enable an Authorized User to properly test, install, operate and enjoy full use of the Product.

j. ENTERPRISE The total business operations in the United States of an Authorized User without regard to geographic location where such operations are performed or the entity actually performing such operations on behalf of the Authorized User.

k. ENTERPRISE LICENSE A license grant of unlimited rights to deploy, access, use and execute Product anywhere within the Enterprise up to the maximum capacity stated on the Purchase Order or in the Contract.

l. ERROR CORRECTIONS Machine executable software code furnished by Contractor which corrects the Product so as to conform to the applicable warranties, performance standards and/or obligations of the Contractor.

m. GROUP A classification of a Product that is designated by OGS.

n. INVITATION FOR BIDS (IFB) A type of Solicitation that is most typically used for procurements where requirements can be stated and award will be made based on lowest price to the responsive and responsible Bidder or Bidders.

o. LICENSED SOFTWARE Software transferred upon the terms and conditions set forth in the Contract. “Licensed Software” includes Error Corrections, upgrades, or enhancements, and any deliverables due under a technical support/maintenance or service contract (e.g., Patches, programs, code or data conversion, or custom programming).

p. LICENSEE An Authorized User who acquires Product from Contractor by issuing a Purchase Order in accordance with the terms and conditions of the Contract; provided that, for purposes of compliance with an individual license, the term “Licensee” shall be deemed to refer separately to the individual…