Appendix C - Contract Provisions - Transmission to IRIS Services RFP.docx

APPENDIX C

CONTRACT PROVISIONS

APPENDIX C

CONTRACT PROVISIONS

Respondent shall reference Appendix A, Section B for a list of definitions applicable to this appendix.

A. Contract Provisions

A.1. Contract Provisions. Respondent shall submit with its Proposal any Master Services Agreement, EULA, and all other agreements, terms, and conditions necessary for Respondent to perform the Services. The final Contract entered into between ERS and the Contractor shall contain provisions that ERS determines necessary or legally required by internal policy, procedure, statute, or regulation. The provisions shall include, but are not limited to the following:

A.1.a. The obligations of the parties are subject to the Texas Public Information Act (Tex. Gov’t. Code ch. 552) and State record retention laws and regulations. Contractor is required to make any information pursuant to the Contract, and not otherwise excepted from disclosure under the PIA, available in a format that is accessible by the public at no additional charge to ERS. If applicable in accordance with Section 552.372 of the Texas Government Code, Contractor agrees to (1) preserve all contracting information related to the Contract as provided by the records retention requirements applicable to ERS for the duration of the Contract, (2) promptly provide to ERS at no additional charge any contracting information related to the Contract that is in the custody or possession of the Contractor on request of ERS, and (3) on termination or expiration of the Contract, either provide at no cost to ERS all contracting information related to the Contract that is in the custody or possession of the Contractor or preserve the contracting information related to the Contract as provided by the records retention requirements applicable to ERS.

A.1.b. ERS reserves and does not waive its sovereign immunity.

A.1.c. ERS will not indemnify Contractor.

A.1.d. The Contract and the parties’ performance of same and all matters in connection with the relationship of the parties shall be governed by and construed and performed in accordance and conformity with the laws of the state of Texas, without regard to conflicts of law provisions.

A.1.e. Subject to and without waiving ERS’ or the state of Texas’ sovereign or official immunity and pursuant to Tex. Gov’t Code Section 811.010, ERS and Contractor agree and consent to Austin, Travis County, Texas as the proper venue for any court proceedings between the parties, and that a Texas state court sitting in Austin, Travis County, Texas shall have jurisdiction over Contractor in connection with any action or proceeding arising out of, in connection with or related to the Contract or the parties’ relationship. ERS does not agree to engage in arbitration and does not waive its right to jury trial.

A.1.f. ERS is tax-exempt, and any fees to be paid under the Contract: (1) shall not include any taxes; and (2) shall not be increased because of ERS’ tax-exempt status.

A.1.g. ERS and the State have the right to audit Contractor’s records related to the Contract.

A.1.h. Contractor represents and warrants that there are no facts or circumstances that could give rise to a conflict of interest or the appearance thereof.

A.1.i. Contractor may not assign the Contract, including by merger, change of control, or similar transactions, without the prior written consent of ERS.

A.1.j. Contractor shall not share ERS data or include ERS data in any data sharing arrangement.

A.1.k. Under Texas Government Code Sections 403.055, 2155.004, 2155.006, 2155.0061, and 2261.053, Contractor certifies that it is eligible to receive the Contract, it acknowledges that the Contract may be terminated and payment withheld if this certification is inaccurate, and in the event Contractor is indebted to ERS or the state of Texas or delinquent in paying any taxes owed the state of Texas at the time the Contract is entered into, Contractor agrees that any payment owed to Contractor under the Contract shall first be applied towards such debt or delinquent taxes until the debt or delinquent taxes are paid in full. Contractor warrants and represents that at the time it entered into the Contract, Contractor was not indebted to ERS or the state of Texas or delinquent in paying any taxes owed the state of Texas. In accordance with Texas Family Code Section 231.006, relating to delinquent child support obligations, Contractor certifies that it is eligible to receive payments in connection with the Contract and acknowledges that, in addition to other remedies available to ERS, the Contract may be terminated immediately and any such payments withheld if this certification is inaccurate

A.1.l. In its performance of the Contract, Contractor agrees to comply with all applicable laws, regulations, and executive orders of the United States and State of Texas, including but not limited to: the Immigration Reform and Control Act of 1986 regarding employment verification and retention of verification forms and any applicable requirements to use the U.S. Department of Homeland Security’s E-Verify system in accordance with that system’s established rules and requirements, to determine the eligibility of (1) all persons employed to perform duties within Texas during the term of the Contract, and (2) all persons (including subcontractors) assigned by Contractor to perform work pursuant to the Contract within the United States of America; and Title VI of the Civil Rights Act of 1964 (Public Law 88-352), Section 504 of the Rehabilitation Act of 1973 (Public Law 93-112), The Americans with Disabilities Act of 1990 (Public Law 101-336), and all amendments to each, and all requirements imposed by the regulations issued pursuant to these laws, which provide in part that no person in the United States shall, on the grounds of race, color, national origin, sex, age, or disability, be denied any aid, care, service or other benefits provided by federal and/or state funding, or otherwise be subjected to discrimination.

A.1.m. Contractor agrees to defend (with counsel selected by ERS in consultation with the Office of the Attorney General of Texas and with sole settlement authority retained by ERS), indemnify, save, and hold harmless ERS, its past, present and future officers, directors, trustees, and employees, and the State and its past, present and future officers and employees from any and all liability, actions, claims, demands or suits, and all related damages, costs, attorney fees, expert fees, and expenses to the extent caused by, arising out of, or resulting from any acts of negligence, intentional torts, willful misconduct, personal injury, or damage to property, and/or otherwise related to Contractor’s performance and/or failure to pay a subcontractor or supplier by Contractor, and/or Contractor's subsidiaries, affiliates, employees, officers, directors, joint venturers, representatives, principals, partners, employees, agents, assigns, independent contractors, subcontractors, or any person or entity who has undertaken to advise, consult or communicate with public servants on behalf of or to the benefit of Contractor (whether or not Contractor sought the benefit), arising or resulting from, in connection with, or related to any such person’s acts or omissions under the Contract.

A.1.n. Contractor agrees to exercise reasonable care and prudence to provide all legally required and any other reasonable security measures for the purpose of: (1) preventing the transmission of viruses, worms, spyware, and/or Trojan horses; (2) protecting ERS’ information, confidential or otherwise; and (3) protecting ERS from losses caused by the alteration, damage or erasure of electronic data related to the Contract.

A.1.o. ERS will require additional rights to terminate the Contract both for cause and not for cause, including but not limited to, the right to terminate the Contract, either in whole or in part, if funds for the Contract are not approved by the Board.

A.1.p. Contractor is not an employee, officer, or agent of ERS for any purpose under this solicitation or Contract. Contractor is and remains an independent contractor in relationship to ERS. ERS is not responsible for withholding taxes from payments made under the Contract. Contractor may not claim violation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind from ERS.

A.1.q. In accordance with Tex. Gov’t. Code Section 2155.4441, if products and/or materials are used in the performance of the service work, Contractor shall use commercially reasonable efforts to purchase Texas products and/or materials when they are available at a comparable price, quality and delivery schedule.

A.1.r. A notice provision.

A.1.s. When on ERS’ premises, Contractor agrees to comply with ERS’ security requirements for contractors and subcontractors. Parking at ERS may be provided in accordance with ERS’ policies and procedures for contractors and subcontractors.

A.1.t. Contractor shall perform (to ERS’ satisfaction) sufficient background and reference checks on all Contractor employees and subcontractors having access to confidential data, personally identifiable information, and nonpublic personal information. Contractor warrants and represents that no person Contractor assigns to perform any work under the Contract has been convicted of a felony criminal offense, or to Contractor’s knowledge, arrested for committing a felony criminal offense.

A.1.u. ERS is committed to maintaining an alcohol-free, drug-free and smoke-free workplace. ERS prohibits Contractor’s employees from the use of any tobacco products or possession, use, or being under the influence of alcohol or controlled substances while on ERS’ premises.

A.1.v. If applicable, Contractor must ensure the products procured by ERS under this RFP and Contract, if any, comply with the State accessibility requirements for Electronic and Information Resources specified in 1 Tex. Admin. Code Chapter 213.

A.1.w. Contractor certifies that: in accordance with Texas Government Code, Chapter 2271, it does not currently boycott Israel, and agrees that it will not boycott Israel during the term of the Contract, as “Boycott Israel” is defined in Texas Government Code, Section 808.001; it is not listed in the prohibited vendors list authorized by Executive Order No. 13224, “Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism,” published by the United States Department of the Treasury, Office of Foreign Asset Control; and, under Section 161.0085 of the Texas Health and Safety Code, Contractor is not ineligible to receive the Contract.

A.1.x. Contractor warrants and represents that: it is not engaged in business with Iran, Sudan, or a foreign terrorist organization, as prohibited by Section 2252.152 of the Texas Government Code; as applicable, it and its Agents are in good standing with the state of Texas and all its political subdivisions, departments, and agencies, the U.S. Securities and Exchange Commission (the “SEC”), and any self-regulatory agency with any oversight authority over such person or entity; that neither it nor its principals are debarred, suspended, proposed for debarment, declared ineligible, or otherwise excluded from participation in the Contract by any state or federal agency; and the Contract is not prohibited by Section 2272.003 of the Texas Government Code.

A.1.y. Contractor verifies that: it does not, and will not for the duration of the Contract, have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association, or the verification required by Section 2274.002 of the Texas Government Code does not apply to the Contract; and it does not, and will not for the duration of the Contract, boycott energy companies, or the verification required by Section 2276.002 of the Texas Government Code does not apply to the Contract. If circumstances relevant to this provision change during the course of the Contract, Contractor shall promptly notify ERS.

A.1.z. Contractor must document and disclose to ERS all uses of Artificial Intelligence (AI) to meet the requirements of the Contract. Throughout the Contract Term, Contractor shall notify ERS in writing sixty (60) days in advance of any changes to and/or new uses of AI using ERS data to provide the Services. Contractor shall not use ERS data to train or develop any AI system. Contractor shall ensure no personally identifiable information (PII), protected health information, or other confidential or sensitive information ERS provides to Contractor is used with or made available to an AI system in a manner that could result in public disclosure of such information, either directly or as the basis for an output generated by such AI system. Contractor shall establish and provide security measures regarding AI to guard against inadvertent exposure or release of ERS Information and Data, including without limitation, PII of members. Contractor shall describe these measures in detail to ERS personnel upon request by ERS. Contractor must comply with the AI ethical principles adopted by the Texas Department of Information Resources, published in Title 1, Chapter 219, Subchapter A of the Texas Administrative Code; and all applicable laws and regulations governing the use of AI systems.

A.1.aa. The terms of the RFP and the Respondent’s Proposal thereto, to the extent accepted by ERS, will be incorporated by reference into the Contract.

A.1.bb. These additional terms will control to the extent of any conflict with any other portion of the Contract. To the extent that federal or Texas state laws or regulations change or a change of circumstances require ERS to include additional language in its contracts, Contractor agrees to act in good faith and to cooperate in the execution of any Contract amendment necessary to effectuate such change in federal or state law or regulation or a change of circumstances. In any situation where a question arises under the Contract regarding the applicability of state or federal laws or regulations, then ERS' interpretation of the applicability of such law or rule shall control.

A.1.cc. These additional terms will survive the termination or expiration of the Contract.

Appendix C – Contract Provisions Page 1 of 5 ERS Transmission to Information Returns Intake System (IRIS) Services RFP