Appendix O Solution Master Contract Template for RFPs Q02FY2024 Final.pdf

VA-191121-SEC

Appendix O Solution Master Contract Template for RFPs Q02FY2024 Final.docx

Information Technology

Solution Contract between

Virginia Department of Workforce Development and Advancement and

Supplier

Note: This public body does not discriminate against faith-based organizations in accordance with the Code of Virginia, § 2.2-4343.1.

VA-191121-SEC Page iv

INFORMATION TECHNOLOGY SOLUTION CONTRACT

TABLE OF CONTENTS

1. PURPOSE AND SCOPE 1

2. DEFINITIONS 1

A. Acceptance 1 B. Agency 1 C. Claim 1 D. Code 1 E. Commercial Off-The-Shelf (“COTS”) Software 1 F. Commonwealth 1 G. Commonwealth Indemnified Parties 1 H. Component 1 I. Computer Virus 1 J. Concurrent Users 2 K. Confidential Information 2 L. Contract 2 M. Contractor 2 N. Deliverable 2 O. Documentation 2 P. Effective Date 2 Q. Escrow Agent 2 R. Federal Tax Information (“FTI”) 3 S. Health Record 3 T. Inventory Record 3 U. Maintenance Coverage Period (“MCP”) 3 V. Maintenance Level 3 W. Maintenance Services 3 X. Open Source 3 Y. Original Equipment Manufacturer (“OEM”) 3 Z. Party 3 AA. Product 3 BB. Protected Health Information (“PHI”) 3 CC. Receipt 4 DD. Requirements 4 EE. Safety Changes 4 FF. Services 4 GG. Software 4 HH. Software Publisher 4 II. Solution 4 JJ. Statement of Work (“SOW”) 4 KK. Subcontractor 5 LL. Supplier 5 MM. Supplier Personnel 5 NN. SWaM 5 OO. Transition Out Plan 5 PP. Transition Period 5 QQ. Update 5

RR. VITA 5

SS. Warranty Period 5 TT. Web Site 5 UU. Work Product 5

3. TERM AND TERMINATION 5

A. Contract Term 5 B. Termination for Convenience 6 C. Termination for Breach 6 D. Termination for Non-Appropriation of Funds 6

E. Effect of Termination 6 F. Termination by Supplier 6 G. Transition of Services 6 H. Contract Kick-Off Meeting 7 I. Transition Out Plan 7 J. Contract Closeout 7

4. SUPPLIER PERSONNEL 7

A. Selection and Management of Supplier Personnel 7 B. Key Personnel 8 C. Subcontractors 8

5. NEW TECHNOLOGY 8

A. Access to New Technology 8 B. New Services Offerings Not Available from Supplier 8

6. GENERAL WARRANTY 8

A. Ownership 8 B. Coverage Requirements 8 C. Performance Warranty 9 D. Documentation and Deliverables 9 E. Interoperability Warranty 9 F. Malicious Code 9 G. Open Source 9 H. Supplier Viability 9 I. Supplier’s Past Experience 9

7. SOFTWARE LICENSE 10

A. License Grant 10 B. License Type 11 C. No Subsequent, Unilateral Modification of Terms by Supplier (“Shrink Wrap”) 11 D. Reservation of Rights 11

8. RIGHTS TO WORK PRODUCT 12

A. Work Product 12 B. Ownership 12 C. Pre-existing Work 12 D. Return of Materials 12

9. SOFTWARE ESCROW AGREEMENT 12

10. DELIVERY AND INSTALLATION 14

A. Scheduling of Solution Delivery 14 B. Deployment of Solution 14 C. Documentation of Software Configuration 15

11. ACCEPTANCE AND CURE PERIOD 15

A. Software and Deliverable Acceptance Criteria 15 B. Solution Acceptance Criteria 15 C. Software and Deliverable Cure Period 16 D. Solution Cure Period 16

12. SOLUTION WARRANTY AND MAINTENANCE SERVICES 16

A. Known Defects 16 B. New Releases 16 C. Coverage 16 D. Service Levels 17 E. Software Evolution 17 F. Escalation Procedures 17 G. Solution Remedies 17 H. Solution Support Services and Renewal Options 17

13. FEES, ORDERING, AND PAYMENT PROCEDURE 18

A. Fees and Charges 18

B. Reproduction Rights for Supplier Provided Software 18 C. Demonstration and/or Evaluation 18 D. Supplier Quote and Request for Quote Error! Bookmark not defined.

E. Competitive Request for Quotes Error! Bookmark not defined.

F. Ordering 18 G. Statement of Work 18 H. Invoice Procedures 19 I. Purchase Payment Terms 19 J. Reimbursement of Expenses 19 K. Disputed Charges 20

14. REPORTING 20

A. Small Business Procurement and Subcontracting Spend 20

15. SUPPLIER PERFORMANCE MEASURES 20

16. STATUS MEETINGS 21

17. STEERING COMMITTEE 21

18. POLICIES AND PROCEDURES GUIDE 21

19. TRAINING AND DOCUMENTATION 21

A. Training 21 B. Documentation 21

20. AUTHORIZED USER SELF-SUFFICIENCY 22

21. COMPETITIVE PRICING 22

22. CONFIDENTIALITY 22

A. Treatment and Protection 22 B. Return or Destruction 22 C. Confidentiality Statement 23 D. Health Insurance Portability and Accountability Act 23 E. Freedom of Information Act Acknowledgement 23

23. INDEMNIFICATION 23

A. Indemnification Generally 23 B. Defense Claims 24 C. Duty to Replace or Reimburse 24 D. Supplier Dispute of Obligation to Indemnify 24

24. LIABILITY 24

A. Supplier Liability 24

25. INSURANCE 24

26. SECURITY COMPLIANCE 24

27. IMPORT/EXPORT 25

28. ACCEPTABLE USE POLICY Error! Bookmark not defined.

29. THIRD PARTY TERMS AND CONDITIONS 25

30. BANKRUPTCY 25

31. GENERAL PROVISIONS 25

A. Relationship Between Agency and Agency and Supplier 26 B. Licensing Within the Commonwealth 26 C. Incorporated Contractual Provisions 26 D. Compliance with the Federal Lobbying Act 26 E. Ethics in Public Contracting 26 F. Governing Law 27 G. Dispute Resolution 27 H. Assignment 27 I. Severability 27

J. Survival 27 K. Force Majeure 27 L. No Waiver 28 M. Remedies 28 N. Right to Audit 28 O. Taxes 28 P. Currency 28 Q. Non-Disparagement 28 R. Advertising and Use of Proprietary Marks 28 S. Notices 28 T. Offers of Employment 29 U. Contract Administration 29 V. Captions 29 W. Entire Contract 29 X. Order of Precedence 30 Y. Counterparts and Electronic Signatures 30 Z. Opportunity to Review 30

VA-191121-SEC Page 1 of 30

INFORMATION TECHNOLOGY SOLUTION CONTRACT

THIS INFORMATION TECHNOLOGY Solution CONTRACT (“Contract”) is entered into by and between Virginia Department of Workforce Development and Advancement (“Agency” or “Virginia Works” or “VDWDA”), pursuant to § 2.2-2012 of the Code of Virginia, and Supplier Corporation (“Supplier”), a __________ headquartered at, to be effective as of Contract Award Date (“Effective Date”).

0. PURPOSE AND SCOPE

Agency is seeking services that will provide a technology solution for the offering and management of workforce services to individuals and businesses in the Commonwealth of Virginia, provide project management through the implementation process, and provide ongoing maintenance and support for the system.

This Contract sets forth the terms and conditions under which Supplier shall provide the technology solution. Supplier shall provide services to the Agency, as defined below.

1. DEFINITIONS

Capitalized terms used in this Contract have the meaning as provided (i) where each term is used in the Contract unless the term is (ii) set forth in this “Definitions” section below which lists the capitalized terms used in this Contract and provides a definition for the term.

A. Acceptance The written acknowledgement by Agency of successful delivery and performance by the Supplier of its contractual commitments at the location(s) designated in the applicable order or Statement of Work (“SOW”), including completed and successful acceptance testing in conformance with the Requirements as determined by Agency and set forth in the applicable order or SOW.

B. Agency The Virginia Department of Workforce Development and Advancement, of the Commonwealth of Virginia pursuant to Chapter 20.2 § 2.2-2035 of the Code, or any successor agency.

C. Claim Any and all losses, damages, claims, demands, proceedings, suits and actions, including any related liabilities, obligations, losses, damages, assessments, fines, penalties (whether criminal or civil), judgments, settlements, expenses (including attorneys’ and accountants’ fees and disbursements), and costs. Collectively, “Claims”.

D. Code The Code of Virginia, as in effect and amended from time-to-time.

E. Commercial Off-The-Shelf (“COTS”) Software Software that is general in nature, not broad enterprise applications, which can be purchased and used immediately “as is,” without modification, in the same form in which it was sold in the commercial marketplace. Standard options are not considered modifications.

F. Commonwealth The Commonwealth of Virginia.

G. Commonwealth Indemnified Parties The Commonwealth and Agency, together with their respective officers, directors, agents, and employees.

H. Component Any part or service of the Solution, Software, or Deliverable delivered by Supplier under this Contract, including under all orders or SOWs.

I. Computer Virus Any malicious code, program, malware, or other internal component (e.g., computer virus, computer worm, computer time bomb, or similar component), which could damage, destroy, alter or disrupt any computer program, firmware, or hardware or which could, in any manner, reveal, damage, destroy, alter or disrupt any data or other information accessed through or processed by such software in any manner.

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J. Concurrent Users The maximum number of concurrent active users utilizing the Software at a given point in time.

K. Confidential Information Non-public proprietary or trade secret information of Supplier or Agency, whether the information is in written, graphic, machine readable or other tangible form, and which at the time of disclosure to any other Party is either (i) marked as being “Confidential” or “Proprietary”; (ii) Health Records;

(iii) Personally Identifiable Information, including information about Agency’s employees, contractors, and customers, or Sensitive Data, including PHI; or (iv) information that is protected by statute or other applicable law. “Confidential Information” also includes any (a) information to which the Supplier has access in Agency facilities or Agency’s systems, (b) Work Product and information pertaining to the Work Product, (c) Agency data, Agency software, and systems access codes, and (d) information concerning Agency’s operations, plans, employees, contractors or third party suppliers.

The term “Confidential Information” does not include information that is:

i. in the public domain through no fault of the receiving Party or of any other person or entity that is similarly contractually or otherwise obligated;

ii. obtained independently from a third-party without an obligation of confidentiality to the disclosing Party and without breach of this Contract;

iii. developed independently by the receiving Party without reference to the Confidential Information of the other Party; or

iv. required to be disclosed under The Virginia Freedom of Information Act (§§2.2-3700 et seq. of the Code of Virginia) or similar laws or pursuant to a court order.

L. Contract This agreement, including all exhibits, schedules, and attachments, including any modifications or amendments thereto, entered into by Agency and Supplier.

M. Contractor The use of the term “Contractor” in any of the following terms, conditions, links, or IRS Publication 1075 means the same as the term “Supplier” as defined and used in this Contract.

N. Deliverable Software, Documentation, Components, plans, reports, data, Work Product, and any other materials, items or events, in each case described or itemized as something that is developed, prepared or created and delivered or required to be developed, prepared or created and delivered or made available to Agency or other Agency as part of the Services, Maintenance Services, Licensed Services, Application, Solution, Product, Software, System Software, Supplier Product, or Updates, including the development or creation of Work Product.

O. Documentation Those materials (including user manuals, training materials, guides, product descriptions, technical manuals, product specifications, supporting materials and Updates) detailing the information and instructions needed in order to allow Agency and its agents to make productive use of the Application, Software, Solution, Product, Service, Licensed Services or Deliverable, including any and all Components, and to implement and develop self-sufficiency with regard to the Application, Software, Solution, Product, Service, Licensed Services or Deliverable, including any and all components, provided by Supplier in fulfilling its obligations under the Contract or as may be specified in any order or SOW issued pursuant to this Contract.

P. Effective Date The date this Contract goes into full force and effect as set forth in the preamble of this Contract above.

Q. Escrow Agent The person or entity that holds and maintains all Software source code and related technical and user Documentation, along with a signed copy of the Escrow Agreement attached to this Contract as Exhibit E, in trust for the Parties as set forth in the “Escrow Agreement” section of this Contract below.

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R. Federal Tax Information (“FTI”) FTI consists of federal tax returns and return information (and information derived from it) that is in the possession or control of Agency, which is covered by the confidentiality protections of the Internal Revenue Code (“IRC”) and subject to the IRC § 6103(p)(4) safeguarding requirements including IRS oversight. FTI is categorized as “Sensitive” but “Unclassified” information and may contain personally identifiable information.

S. Health Record Any written, printed or electronically recorded material maintained by a health care entity in the course of providing health services to an individual concerning the individual and the services provided. "Health Record" also includes the substance of any communication made by an individual to a health care entity in confidence during or in connection with the provision of health services or information otherwise acquired by the health care entity about an individual in confidence and in connection with the provision of health services to the individual. (Code § 32.1- 127.1:03).

T. Inventory Record A record of all units of Product covered under warranty or maintenance by type, quantity, and location, including the end date for each unit’s warranty period or maintenance term, as applicable.

U. Maintenance Coverage Period (“MCP”) The period of time during which Supplier is obligated to provide Maintenance Services for a unit of Software or Product.

V. Maintenance Level The defined parameters of Maintenance Services, including the times during which, and time-frames in which, Supplier shall respond to a request for Maintenance Services. The available Maintenance Levels are defined in Exhibit [[XX]] to this Contract or as defined in any Statement of Work or order issued pursuant to this Contract. The actual Maintenance Level for a unit of Software or Product will be set forth in the signed order or Statement of Work for Maintenance Services of that Software or Product referencing this Contract.

W. Maintenance Services Those services, preventive and remedial, provided or performed by Supplier under the Contract in order to ensure continued operation of the Product, Hardware, or Software, including Software Updates. Maintenance Services include support services. Maintenance Services for Software may include the development of Work Product, if so authorized in the Contract.

X. Open Source Computer software provided by a creator or community for users of the software to freely inspect, modify, enhance, and distribute the software and its source code. Open Source software operates under a licensing model whereby the copyright holder confers obligations to a user using that work, and all subsequent derivative works.

Y. Original Equipment Manufacturer (“OEM”) The original equipment manufacturer, or in the case of software, the software publisher/licensor of, Maintenance Services, Licensed Services, Application, Solution, Solution Component, Software, System Software, plans, reports, data, Product, and Updates.

Z. Party Supplier, Agency.

AA. Product Hardware, peripherals, and any other equipment, including the System Software, all upgrades, all applicable user documentation, and related accessories as set forth on Exhibit D or as specified in any Statement of Work or order provided pursuant to the Contract.

BB. Protected Health Information (“PHI”) Individually identifiable health information that is (i) transmitted in electronic media, (ii) maintained in electronic media, or (iii) transmitted or maintained in any other form or medium. PHI excludes individually identifiable health information in (a) education records covered by the Family Educational Rights and Privacy Act (20 U.S.C.§ 1232g); (b) records of any student who is 18 years of age or older, or is attending a postsecondary school, that are made or maintained by a

VA-191121-SEC Page 4 of 30 physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his professional or paraprofessional capacity, or assisting in that capacity, and that are made, maintained, or used only in connection with the provision of treatment to the student and are not available to anyone other than persons providing such treatment, except that such records may be personally reviewed by a physician or other appropriate professional of the student's choice;

and (c) employment records held, in its role as employer, by a health plan, health care clearinghouse, or health care provider that transmits health information in electronic form. (§ 64.2- 2100 of the Code)

CC. Receipt Agency has physically received or has unfettered access to any Deliverable at the correct “ship-to” location.

DD. Requirements The functional, performance, operational, compatibility, Acceptance testing criteria, and other parameters and characteristics of the Product, Software, Solution, Service(s), Application and Licensed Services and Deliverables, including any and all components, as authorized by any combination of the Contract, as set forth in Exhibit A or the applicable order or SOW, and such other parameters, characteristics, or performance standards that may be agreed upon in writing by the Parties.

EE. Safety Changes Any engineering changes that affect the safety of the Product(s) provided pursuant to this Contract.

FF. Services Any work performed or service provided by Supplier – including the design and development of software and modifications, software updates, solution, products, implementation, installation, maintenance, support, testing, training, or other provision of service – in meeting the Requirements and fulfilling Supplier's obligations under the Contract or, as applicable, under any order or SOW authorized by the scope of the Contract. “Services” includes all functions, responsibilities, activities, and tasks of the Supplier that are an inherent, necessary, or customary part of the Services, or are required for the proper performance or provision of the Services. As permitted by the scope of the Contract, “Services” may include the discovery, creation, or development of Work Product.

GG. Software The programs and code provided by Supplier under the Contract or any order or SOW issued hereunder as a component(s) of any Deliverable or component of any Solution, and any subsequent modification of such programs and code, excluding Work Product. For COTS Software, “Software” means the programs and code, and any subsequent releases, provided by Supplier under this Contract as set forth in Exhibit [[XX]] or as described on Supplier's US and International price lists in effect at time of Agency's placement of order or Statement of Work. If this Contract is for Software Maintenance, “Software” also includes the programs and code provided by Supplier under the Contact or any order or SOW issued pursuant to the Contract in the form of Software Updates.

HH. Software Publisher The third-party licensor of the Software, other than the Supplier, provided by Supplier under this Contract.

II. Solution The Supplier’s contractually committed technical approach for solving an information technology business objective and associated Requirements as defined and authorized by the scope of the Contract or any order or Statement of Work issued under the Contract. Solution means all Supplier and Supplier’s third-party providers’ components making up the Solution, including but not limited to Software, Product, configuration design, implementation, Supplier-developed interfaces, Services and Work Product.

JJ. Statement of Work (“SOW”) Any document in substantially the form of Exhibit C (describing the deliverables, due dates, assignment duration, Acceptance criteria, and payment obligations for a specific project, VA-191121-SEC Page 5 of 30 engagement, or assignment that Supplier commits to provide to Agency), which, upon signing by both Parties, is made a part of the Contract.

KK. Subcontractor Any entity to which Supplier (or other Subcontractor of any tier) has subcontracted for performance of, or delegated any of its responsibilities under the Contract, including an affiliate of the Supplier.

LL. Supplier The entity set forth in the preamble of this Contract and any entity that controls, is controlled by, or is under common control with Supplier.

MM. Supplier Personnel Any and all of Supplier’s employees, agents, contractors, or Subcontractors performing under this Contract.

NN. SWaM Any entity certified by the Commonwealth’s Department of Small Business and Supplier Diversity as a small, women-owned, minority-owned, or service disabled veteran-owned business, as defined in Code §§ 2.2-2000.1 and 2.2-4310, or a certified micro business as defined in Executive Order Number 35 (2019).

OO. Transition Out Plan The written plan developed by Supplier addressing the transition of Supplier’s contractual obligations, in whole or in part, away from the Supplier and to Agency, or its designee, after the expiration or termination of the Contract.

PP. Transition Period The period of time after the expiration or termination of the Contract that Supplier is obligated to continue providing assistance to Agency so as to transition the Supplier’s contractual obligations, or any portion thereof, to any other supplier.

QQ. Update Any update, modification, or new release of the Software, System Software, Application, Documentation, or Supplier Product that Supplier makes generally available to its customers at no additional cost. Software Updates include patches, fixes, upgrades, enhancements, improvements, or access mode, including without limitation additional capabilities to or otherwise improve the functionality, increase the speed, efficiency, or base operation of the Software.

RR. VITA

The Virginia Information Technologies Agency, Agency of the Commonwealth of Virginia pursuant to Chapter 20.1 (§§ 2.2-2005 et seq.) of the Code, or any successor agency.

SS. Warranty Period The period of time during which Supplier is obligated to provide corrections, free of charge, for a unit of Software or Product.

TT. Web Site The Internet site operated by Supplier to provide access to the Application, with the Uniform Resource Locator ("URL")

UU. Work Product Inventions, combinations, machines, methods, formulae, techniques, processes, improvements, software designs, computer programs, strategies, specific computer-related know-how, data and original works of authorship discovered, created, or developed by Supplier, or jointly by Supplier and Agency(s) in the performance of this Contract. Work Product does not include configuration of software, nor does it include anything developed by Supplier prior to, or outside of, this Contract.

2. TERM AND TERMINATION

A. Contract Term

This Contract is effective and legally binding as of the Effective Date and, unless terminated as provided for in this section, will be effective and legally binding for a period of two (2) years (“Initial Term”). Agency, in its sole discretion, may renew this Contract for up to three (3)

VA-191121-SEC Page 6 of 30 additional one (1) year renewal periods after the expiration of the Initial Term (collectively with the Initial Term, the “Contract Term”). Agency will issue a written notification to the Supplier stating Agency’s intention to exercise a renewal period no less than 30 calendar days prior to the expiration of any current term. In addition, performance of an order or SOW issued during the Contract Term may survive the expiration of the Contract Term, in which case all contractual terms and conditions required for the operation of such order or SOW will remain in full force and effect until all of Supplier's obligations pursuant to such order or SOW have met the final Acceptance criteria of Agency.

B. Termination for Convenience Agency may terminate this Contract, in whole or in part, at any time and for any reason upon not less than 30 calendar days prior written notice to Supplier. Agency may terminate an order or SOW, in whole or in part, at any time and for any reason upon not less than 30 calendar days prior written notice to Supplier. Any termination under this provision will not affect the rights and obligations attending any order or SOW outstanding at the termination date.

C. Termination for Breach In the event of breach by the Supplier, Agency will have the right to terminate this Contract, in whole or in part, and Agency may terminate an order or SOW issued hereunder, in whole or in part. Supplier will be deemed in breach in the event that Supplier fails to meet any material obligation set forth in this Contract or in any order or SOW issued hereunder. Any termination under the provisions of this section will be deemed a “Termination for Breach”.

If Agency deems the Supplier to be in breach, Agency shall provide Supplier with notice of breach and allow Supplier 15 business days to cure the breach. If Supplier fails to cure the breach as noted, Agency may immediately terminate this Contract or any order or SOW issued pursuant to this Contract, in whole or in part. If Agency deems the Supplier to be in breach of an order or SOW, that Agency shall provide Supplier with notice of breach and allow Supplier 15 business days to cure the breach. If Supplier fails to cure the breach as noted, Agency may immediately terminate its order or SOW, in whole or in part. In addition, if Supplier is found by a court of competent jurisdiction to be in violation of or to have violated 31 U.S.C. § 1352, or if Supplier becomes a party excluded from Federal Procurement and Nonprocurement Programs, Agency may immediately terminate this Contract, in whole or in part, for breach, and Agency shall provide written notice to Supplier of such termination. Supplier shall provide prompt written notice to Agency if Supplier is charged with violation of 31 U.S.C. § 1352, or if federal debarment proceedings are instituted against Supplier.

D. Termination for Non-Appropriation of Funds All payment obligations from Agency under this Contract are subject to the availability of legislative appropriations at the federal, state, or local level for this purpose. In the event of non-appropriation of funds, irrespective of the source of funds, for the items under this Contract, Agency may terminate this Contract, in whole or in part, or any order or SOW, in whole or in part, or Agency may terminate an order or SOW, in whole or in part, for those goods or services for which funds have not been appropriated. Written notice will be provided to the Supplier as soon as possible after legislative action is completed.

E. Effect of Termination Upon termination, neither the Commonwealth, nor Agency, will have any future liability except for Deliverables accepted by Agency or Services (including any applicable Licensed Services and Maintenance Services) rendered by Supplier and accepted by Agency prior to the termination date.

In the event of a Termination for Breach, Supplier shall accept return of any Deliverable that was not accepted by Agency, and Supplier shall refund any monies paid by Agency for the unaccepted Deliverable.[[Following sentence is optional depending on nature of what is being purchased, delete if not applicable]]The Agency will also have the right, in its sole discretion, to return any accepted Deliverable and Supplier shall refund any monies paid for the accepted Deliverable, less a reasonable value for the use of those components.[[END optional sentence]] Supplier will bear all costs of de-installation and return of Deliverables.

F. Termination by Supplier In no instance will termination by Supplier be considered. Failure by an Authorized User to make timely payments owed to Supplier for its performance under this Contract may constitute a breach

VA-191121-SEC Page 7 of 30 by that Authorized User. Supplier’s remedies for an alleged breach by a Commonwealth Authorized User are limited to the remedies set forth in Code § 2.2-4363 and the “Remedies” section of this Contract below.

G. Transition of Services At the request of Agency prior to or upon expiration or termination of this Contract, Supplier shall provide all assistance as Agency may reasonably require to transition the Supplier’s contractual obligations, or any portion thereof, to any other supplier with whom Agency contracts for provision of same. This Transition Period obligation may extend beyond expiration or termination of the Contract for a period of [[XX (XX)]] [[months]]. If this Contract includes Supplier's provision of licensed products, Supplier shall take no action to restrict or terminate the use of such licensed products after the date of expiration or termination of the Contract or during any Transition Period, or both. Agency shall pay for any additional maintenance or licensing fees during any Transition Period at the hourly rate or at a fee agreed upon by Supplier and the applicable Agency. Supplier shall provide all reasonable transition assistance requested by the applicable Agency to allow for the expired or terminated portion of the Services to continue without interruption or adverse effect, and to facilitate the orderly transfer of such Services to Agency. The transition assistance will be deemed by the parties to be governed by the terms and conditions of this Contract, except for those terms or conditions that do not reasonably apply to transition assistance. Further, any Transition Period will not affect Agency's rights in regards to any purchased Software perpetual licenses which are paid in full.

H. Contract Kick-Off Meeting Within 30 calendar days of the Effective Date, Supplier may be required to attend a contract orientation meeting, along with Agency contract manager/administrator, Agency project manager(s) or authorized representative(s), and any other significant stakeholders who have a part in the successful performance of this Contract. The purpose of this meeting will be to review all contractual obligations for both parties, all administrative and reporting requirements, and to discuss any other relationship, responsibility, communication and performance criteria set forth in the Contract.

I. Transition Out Plan Within three (3) months of the Effective Date, Supplier will develop and distribute to the applicable Agency a Transition Out Plan. The Supplier will maintain the Transition Out Plan throughout the Term, and update the Transition Out Plan as needed and subject to Agency’s approval.

J. Contract Closeout Prior to the Contract’s expiration date, Supplier may be provided contract closeout documentation by Agency. If contract closeout documentation is provided, then Supplier shall complete, sign, and return to Agency Supply Chain Management any required documentation within 30 calendar days of receipt to ensure completion of closeout administration and to maintain a positive performance reputation with the Commonwealth. Any required closeout documentation not received within 30 calendar days of Supplier’s receipt of the Commonwealth's request will be documented in the contract file as Supplier non-compliance. Supplier’s non-compliance may affect any pending payments due to the Supplier, including final payment, until the documentation is returned to Agency.

3. SUPPLIER PERSONNEL

A. Selection and Management of Supplier Personnel

Supplier shall ensure that all Supplier Personnel performing under this Contract are competent and knowledgeable of the contractual arrangements and the applicable order or SOW between Agency and Supplier. Supplier acknowledges that Supplier is the employer of all Supplier employees and shall have the sole responsibility to supervise, counsel, discipline, review, evaluate, set the pay rates of, provide (to the extent required by law) health care and other benefits for, and terminate the employment of Supplier employees. Supplier shall be solely responsible for the supervision and conduct of Supplier Personnel, including all acts, omissions, gross negligence, and willful misconduct of Supplier Personnel. Additionally, Supplier shall ensure that Supplier Personnel comply with the appropriate Agency’s site security, information security and personnel conduct rules, as well as applicable federal, state and local laws, including export regulations. Agency reserves the right to require the immediate removal from such Agency’s premises of any Supplier Personnel whom such Agency believes has failed to comply

VA-191121-SEC Page 8 of 30 with the above or whose conduct or behavior is unacceptable or unprofessional or results in a security or safety breach.

B. Key Personnel An order or SOW may designate certain of Supplier’s personnel as “Key Personnel” or “Project Managers”. Supplier’s obligations with respect to Key Personnel and Project Managers will be described in the applicable order or SOW. Any changes to Key Personnel must be mutually agreed to in writing by Supplier and Agency. Failure of Supplier to perform in accordance with such obligations may be deemed a breach of this Contract or of the applicable order or SOW.

C. Subcontractors Supplier shall not use Subcontractors to perform its contractual obligations or any order or SOW issued pursuant to the Contract unless specifically authorized in writing to do so by Agency. If an order or SOW issued pursuant to this Contract is supported in whole or in part with federal funds, Supplier may not subcontract to any Subcontractor that is a party excluded from Federal Procurement and Nonprocurement Programs. In no event may Supplier subcontract to any Subcontractor that is debarred by the Commonwealth or that owes back taxes to the Commonwealth and has not made arrangements with the Commonwealth for payment of such back taxes.

If Supplier subcontracts the provision of any performance obligation under this Contract to any other party, Supplier shall (i) act as prime contractor and will be the sole point of contact with regard to all obligations under this Contract; and (ii) represent and warrant that any authorized Subcontractors shall perform in accordance with the terms and conditions, including warranties, set forth in this Contract.

4. NEW TECHNOLOGY

A. Access to New Technology

Supplier will bring to Agency’s attention any new products or services within the scope of the Contract that Supplier believes will be of interest to Agency and will work to develop proposals for the provision of any such products or services as Agency requests.

B. New Services Offerings Not Available from Supplier If new or replacement product or service offerings become available and cannot be competitively provided by the Supplier under the scope of this Contract, Agency will have the right to purchase the new or replacement products or services from a third party. If Agency elects to use such new or replacement product or service offerings, Supplier will reasonably assist Agency to migrate to such products or services.

If Agency elects to acquire new products or services as described in the paragraph above and such services replace existing Supplier-provided services, discount tiers and any commitments (as applicable per the Contract) will be reduced to reflect reductions in purchases of the replaced products or services.

5. GENERAL WARRANTY

THE OBLIGATIONS OF SUPPLIER UNDER THIS GENERAL WARRANTY SECTION ARE

MATERIAL.

Supplier warrants and represents to Agency that Supplier will fulfill its contractual obligations and meet all Requirements as described in Exhibit A. Supplier warrants and represents to Agency that:

A. Ownership Supplier has the right to perform and provide all contractual obligations and provide all needed services or products without violating or infringing any law, rule, regulation, copyright, patent, trade secret, or other proprietary right of any third party.

B. Coverage Requirements During the Warranty Period of 365 calendar days, or as specified in the applicable order or SOW, Supplier warrants that any Deliverables provided by Supplier under this Contract will meet or exceed the Requirements. Supplier shall correct, at no additional cost to Agency, all errors identified during the Warranty Period that result in supplier’s failure to meet the Requirement, or its contractual obligations.

The Warranty Period will begin at the Acceptance date of the final Deliverable.

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C. Performance Warranty With respect to Supplier’s performance under this Contract:

i. Supplier shall perform all contractual obligations with the care, skill and diligence, consistent with or above applicable professional standards currently recognized in Supplier's profession, and Supplier shall be responsible for the professional quality, technical accuracy, completeness, and coordination of all plans, information, specifications, Deliverables, and Services furnished under this Contract; and

ii. Supplier shall ensure that any contractually-obligated Services or Deliverables, or both, meet or exceed the Requirements and that any Services and Deliverables will function in conformance with the Requirements.

D. Documentation and Deliverables

i. Any required Documentation Supplier is obligated to provide under this Contract will be sufficient in detail and content to allow an appropriately trained user/programmer to understand and fully utilize, as applicable, the Deliverables without reference to any other materials or information.

ii. All Deliverables provided or delivered pursuant to this Contract are at the current release level unless Agency specifies an older version in its order or SOW.

iii. No Update, engineering change, or revision made to any Supplier-provided Deliverables will

(a) degrade the performance of any Deliverable or its components to a level below that defined in the Requirements or the Product manufacturer's or Software Publisher's published specifications, as applicable; (b) cause any other warranty to be breached; or (c) require Agency to acquire additional hardware equipment or software.

E. Interoperability Warranty Supplier warrants that each Component, regardless of the origin of the Component, delivered under this Contract or pursuant to an order or SOW shall be interoperable with other Components so as to meet or exceed the performance specified in the Requirements and the applicable order or SOW.

F. Malicious Code Supplier has used commercially reasonable efforts through quality assurance procedures to verify that there are no Computer Viruses or undocumented features in any of the Deliverables, as obligated and provided by Supplier under the order or SOW, at the time of delivery to Agency.

Supplier has used the best available means to scan any media provided to Agency. Supplier warrants that the Deliverables, as obligated and provided by Supplier under the order or SOW, do not contain any embedded device or code (e.g., time bomb) that is intended to obstruct or prevent Agency’s use of the Deliverables.

Notwithstanding any rights granted under this Contract or at law, Supplier waives, under any and all circumstances, any right it has or may have in the future to exercise its license termination rights by electronic means. Supplier agrees that Agency may pursue all remedies provided under law in the event of a breach or threatened breach of this section, including injunctive or other equitable relief.

G. Open Source Supplier will notify all Agency if any Deliverables, as obligated and provided by Supplier, contain any Open Source code and identify the specific Open Source License that applies to any embedded code dependent on Open Source code, provided by Supplier under this Contract.

H. Supplier Viability Supplier has the financial capacity to perform and continue to perform its obligations under this Contract. Supplier has no constructive or actual knowledge of a potential legal proceeding being brought against Supplier that could materially adversely affect performance of this Contract.

Further, Supplier is not prohibited by any contract, or order by any court of competent jurisdiction from entering into this Contract.

I. Supplier’s Past Experience Supplier has met similar contractual obligations and fulfilled the Requirements as set forth in Exhibit A and in this Contract, in similar or greater complexity, to other customers without

VA-191121-SEC Page 10 of 30 significant problems due to Supplier’s performance and without causing a contractual breach or default claim by any customer.

6. SOFTWARE LICENSE

Any and all license rights granted pursuant to this Contract will be held pursuant to the terms of the “Licensing Within the Commonwealth” section of this Contract below.

A. License Grant [[Note: Use Option 1 and/or Option 2 if applicable. If only using a single option, delete option header (i. or ii.) as well as unused option. Option headers only to be used when both options are applicable]] [[BEGIN Option 1 -Software licensed by Supplier]]

i. Software Licensed by Supplier

Supplier grants to the Commonwealth and all Agency a fully paid, perpetual, worldwide, nonexclusive, transferable, irrevocable object code license to use, copy, modify, transmit, and distribute the Software and Documentation, including any subsequent revisions, in accordance with the terms and conditions set forth herein and subject only to the limitations, restrictions, or both explicitly set forth in this Contract. It is expressly understood that “perpetual” license rights commence upon delivery of the Software to Agency and exist in perpetuity unless otherwise terminated in accordance with the applicable provisions of this Contract. The Software is the property of Supplier, and no title or ownership of the Software or any of its parts, including Documentation, is or will be transferred to the Commonwealth or Agency by this license grant.

All Agency will have the right to use, copy, modify, transmit, and distribute the Software for their benefit, for government use and purposes, and for the benefit of their agents, including internal and third-party information processing. Except as expressly authorized, Agency may not distribute the Software to any third party without Supplier’s prior written consent.

Agency may allow access to the Software by third party vendors who are under contract with Agency to provide services to or on behalf of Agency, or by other entities as required for conducting the business of government. Access includes loading or executing the Software on behalf of Agency or its agents.

The license fee includes a test system copy, which consists of the right to use the Software for non-production test purposes, including but not limited to, problem/defect identification, remediation, resolution, debugging, new version evaluation, Software interface testing, and disaster recovery technique analysis and implementation.

Supplier shall provide replacement copies of the Software and Documentation in the event that all of Agency’s copies of the Software, including all backup copies, are destroyed, irreparably damaged, or otherwise lost due to disaster or other event beyond Agency’s reasonable control, Supplier shall provide to such Agency replacement copies of the Software and Documentation.

These replacement copies will be provided to Agency at no additional cost. Nothing contained in this section will obligate Supplier to replace or assist in the recovery of data lost concurrent with the loss of the Software.

Agency may make a reasonable number of copies of the Software and Documentation for use in training, support, demonstrations, backup, archiving, disaster recovery, and development, and may run the Software concurrently at a back-up site, for no additional license fees or costs. Any copies of the Software or Documentation that Agency makes under this Contract must bear all copyright, trademark, and other proprietary notices included by Supplier. Agency may add its own copyright or other proprietary notice of the Commonwealth to any copy of the Software or Documentation that is modified by Agency and to which the Commonwealth or such Agency has ownership rights pursuant to this Contract.

Except as expressly authorized, Agency may not distribute the Software to any third party without Supplier’s prior written consent.

Except as provided or allowed by law, no Party shall reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from any Software or other intellectual property of any other Party.[[END Option 1]]

[[BEGIN Option 2-Software licensed by Software Publisher (indirect)]]

VA-191121-SEC Page 11 of 30

ii. Software Licensed by Software Publisher

Any Software provided by Supplier as part of its Solution that is licensed directly from the Software Publisher through an End User Licensing Agreement (“EULA”) is subject to the License Agreement Addendum (“LAA”) attached to this Contract as Exhibit F. Supplier shall have sole responsibility for ensuring that any such Software Publisher executes the LAA. The Software Publisher's EULA, along with the LAA executed by Software Publisher will be added to Exhibit F for reference, but will not become a part of this Contract. [[END Option 2]]

B. License Type [[Remember, license applies only to the pre existing code, not the new work created by Supplier for the Commonwealth.]] [[Note: Select the appropriate license type offered by Supplier. The license types defined here are examples and are not intended to limit the type of license offered by Supplier or requested by Agency. Delete any unused license types below]]All licenses granted, regardless of the type, include all uses set forth above. License type may vary by Software product and will be set forth in Exhibit B and identified on any order or SOW issued pursuant to this Contract.

[[Option 1 - Designated CPU License]]

The license(s) granted to Agency under this Section authorize the use of the Software only on the number of CPU(s) listed in the applicable order or SOW. Agency may transfer the Software to a different machine to the extent that the license price for the new CPU(s) is equivalent to the CPU(s) initially licensed. If the licensed CPU is inoperative because of (i) malfunction; (ii) performance of maintenance; (iii) modification to the licensed CPU; or (iv) transfer of Software to another CPU, Agency may use the Software on a replacement CPU as long as required by the above-stated conditions.[[END Option 1]]

[[Option 2 - Concurrent User License]]

The license(s) granted to Agency under this section authorize the use of the Software on any system based on the total number of Concurrent Users. The Agency shall specify an initial number of Concurrent User licenses in its order or SOW pursuant to this Contract. Agency may increase the number of Concurrent User licenses upon issuing an order or SOW for additional Concurrent User licenses. The license fee for additional Concurrent User licenses and payment of the license fee is set forth in Exhibit B attached to this Contract. [[END Option 2]]

[[Option 3 – Site License]]

The license(s) granted under this Section authorizes use of the Software on any system located at the “Site” as such term is defined in the applicable order or SOW. [[END Option 3]]

[[Option 4 – Project Specific License]]

The “Project Specific License” authorizes the use of the Software on any CPU or system owned or operated by the Commonwealth or Agency, and by any user, without limitation as to quantity or location for the duration of Project _________.[[END Option 4]]

[[Option 5 – Enterprise Wide License]]

The “Enterprise Wide License” authorizes use of the Software on any CPU, on any system, and by any user within the “Enterprise”, as such term is defined in the applicable order or SOW, without limitation as to the quantity, location, or project. [[END Option 5]]

C. No Subsequent, Unilateral Modification of Terms by Supplier (“Shrink Wrap”) The terms and conditions set forth in this section supersede and govern the licensing and delivery of all Products and Services in this Contract. The terms and conditions of this Contract will supersede any other provision or other unilateral license terms that may be issued by Supplier after the Effective Date, regardless of when those provisions were proposed or the fact that another agreement may be affixed to, or accompany, Software upon delivery (“shrink wrap”).

D. Reservation of Rights Nothing contained in this section will be construed to restrict or limit the rights of the Commonwealth or Agency to use any technical data that the Commonwealth or Agency may already possess or acquire under proper authorization from other sources.

VA-191121-SEC Page 12 of 30

7. RIGHTS TO WORK PRODUCT

Any license to pre-existing work will be held, and all rights in, title to, and ownership of Work Product will vest, pursuant to the terms of the “Licensing Within the Commonwealth” section of this Contract below.

A. Work Product Agency and Supplier mutually acknowledge that performance of this Contract may result in Work Product. The Parties shall document all Work Product specifications and these specifications will be set forth in Exhibit A and incorporated into this Contract. Supplier shall promptly and fully disclose to the Commonwealth or Agency any and all Work Product generated, conceived, reduced to practice, or learned by Supplier or any Supplier Personnel, either solely or jointly with others, during the term or performance of this Contract, which in any way relates to the business of the Commonwealth or Agency. Supplier and Supplier Personnel shall not make use of, or disclose to others, any proprietary information relating to the Work Product, other than as is required in the performance of this Contract.