Attachment 2 Appendix A Terms and Conditions.docx

Department of Information Resources

{{ContractNumber}} Appendix A Standard Contract Terms and Conditions TEX-AN WPS Communications Technology Services Agreement (CTSA)

Contents

CONTRACT SCOPE

Successful Respondent shall make the products and services specified in the Contract available for purchase by Eligible Customers under the terms and conditions provided by the Contract.

NO QUANTITY GUARANTEES

The Contract is not exclusive to Successful Respondent. Eligible Customers may obtain products and services from other sources during the term of the Contract. This Contract is an indefinite quantity contract. DIR has not made and does not make any representations or warranties whatsoever, express or implied, about any particular quantity or dollar amount of products or services will be procured through the Contract or the amount or type of services that Successful Respondent may sell to DIR or the Customers as a result of executing this Contract.

DEFINITIONS

Except as otherwise expressly provided herein, all capitalized terms used in the Contract shall have the meanings given to them in this Section.

Business Day Refers to days on which normal business operations are typically conducted, excluding weekends and national holidays specified in Texas Government Code Section 662.003. If the Contract calls for performance on a day that is not a Business Day, then performance will occur on the next Business Day. Unless otherwise stated, a Business Day begins at 12:00 a.m. and ends at 11:59 p.m., Central Time.

Compliance Check An audit or similar review, performed by a third-party auditor, DIR staff, or their designees, of Successful Respondent’s compliance with the Contract, including prices, telecommunications fees, and surcharges,.

Customer An entity that purchases goods or services under the Contract.

Customer Data Any data or information of or regarding a Customer that is provided to or obtained by Successful Respondent in connection with the negotiation and execution of the Contract or the performance of Successful Respondent's obligations under the Contract. For the avoidance of doubt, Customer Data includes information about Customers provided by DIR to Successful Respondent.

Customer Data does not include:

(a) financial and accounting information (including costs, expenditures, billing collections, revenues, and finances) of Successful Respondent or its Third-Party Providers;

(b) information created by Successful Respondent to measure the productivity and efficiency of its products and services or to improve the processes and procedures used by Successful Respondent in the performance of its obligations under the Contract;

(c) human resources and personnel information of Successful Respondent or its Third-Party Providers; or

(d) information with respect to third-party contracts or licenses of Successful Respondent, its affiliates or subcontractors and used in the performance of its obligations under the Contract.

Eligible Customer A state agency or any other entity designated by DIR or by law as eligible for services DIR provides, as listed in Texas Government Code Section 2054.0525, and to contract with DIR for use of the consolidated telecommunications system, pursuant to Texas Government Code Section 2170.004. Such entities include the following:

(a) each house of the legislature;

(b) a legislative agency;

(c) the supreme court, the court of criminal appeals, or a court of appeals;

(d) a state governmental entity other than a state agency;

(e) a local government, as defined by Section 2054.003;

(f) an assistance organization, as defined by Texas Government Code Section 2175.001;

(g) a public safety entity, as defined by 47 U.S.C. Section 1401;

(h) a governmental entity of another state;

(i) a public hospital owned or operated by this state or a political subdivision or municipal corporation of this state, including a hospital district or hospital authority;

(j) an independent organization certified under Texas Utilities Code Section 39.151, for the ERCOT power region;

(k) the Texas Permanent School Fund Corporation;

(l) an open-enrollment charter school, as defined by Education Code Section 5.001;

(m) a private school, as defined by Education Code Section 5.001;

(n) a private or independent institution of higher education, as defined by Education Code Section 61.003; and

(o) a volunteer fire department, as defined by Texas Tax Code Section 152.001.

The Parties acknowledge and agree that the scope of Eligible Customers is subject to modification by the Texas Legislature.

DIR

Refers to the Texas Department of Information Resources.

Effective Date Refers to the date on which the last party signs the Contract.

Intellectual Property Rights Means the worldwide legal rights or interests, including but not limited to all United States and foreign patents, copyrights, trademarks, service marks, trade secrets, moral rights, author’s rights, reversionary rights, and any and all other similar rights, evidenced by or embodied in:

(a) any idea, design, concept, personality right, method, process, technique, apparatus, invention, discovery, or improvement, including any patents, trade secrets, and know-how;

(b) any work of authorship, including any copyrights, moral rights, or neighboring rights;

(c) any trademark, service mark, trade dress, trade name, or other indicia of source or origin;

(d) domain name registrations; and

(e) any other proprietary or similar rights.

The Intellectual Property Rights of a party include all worldwide legal rights or interests that the party may have acquired by assignment or license with the right to grant sublicenses.

Invoice Refers to an instrument submitted by Successful Respondent to Customer for payment of goods or services.

Purchase Agreement Refers to the binding documents or set of documents used by Customer and accepted by Successful Respondent to purchase products or services from Successful Respondent under the Contract. A Purchase Agreement may take the form of a fiscal purchase order, Statement of Work, service agreement, procurement card, purchase order, fiscal form, other authorized instrument, or a combination of such documents.

State Refers to the State of Texas.

Statement of Work (SOW) Refers to a document entered into between Customer and Successful Respondent that states the requirements for a Purchase Agreement, including deliverables, performance specifications, and other requirements specific to the Successful Respondent under the Purchase Agreement that are not specified in the Contract.

Successful Respondent Refers to the party identified as either “Successful Respondent” or “Vendor” in Section 1.1 of the CTSA.

Third-Party Provider Refers to an affiliate, subcontractor, vendor, reseller, order fulfiller, manufacturer, publisher, distributor, or other person or entity designated or directed by Successful Respondent to provide products or services to a Customer in performance of, related to, or in support of a Purchase Agreement issued under the Contract.

GENERAL PROVISIONS

Entire Agreement The Contract constitutes the entire agreement between DIR and Successful Respondent. No statement, promise, condition, understanding, inducement, or representation, oral or written, expressed or implied, which is not contained in the Contract is binding or valid.

Customers shall execute a Purchase Agreement with Successful Respondent to purchase products or services under the Contract. The Contract and the Purchase Agreement constitute the entire agreement between the Customer and Successful Respondent. No statement, promise, condition, understanding, inducement, or representation, oral or written, expressed or implied, which is not contained in the Contract or the Purchase Agreement is binding or valid.

Modification of Contract Terms and Amendments

(a) The terms and conditions of the Contract shall govern all transactions by Customers under the Contract.

(b) Except as provided below, the parties to the Contract may only modify or amend the Contract upon mutual written agreement signed by authorized representatives of both DIR and Successful Respondent.

(c) Notwithstanding Section 4.2(b) above, DIR reserves the right, in its sole discretion, to unilaterally, upon thirty (30) calendar days written notice to Successful Respondent without the Successful Respondent’s written consent or signature, amend the Contract prior to award and throughout the term of the Contract to incorporate any modifications necessary for DIR’s compliance with all applicable state and federal laws, regulations, requirements, and guidelines, or to satisfy a procedural change due to DIR system upgrades or additions.

(d) Notwithstanding Section 4.2(b) above, the parties may modify or amend Appendix B, Subcontracting Plan (SP) Form, by mutual agreement through written correspondence without an amendment to the Contract.

(e) Customers do not have authority to modify the terms of the Contract. However, the CTSA authorizes Additional Agreements that do not conflict with the Contract and that are acceptable to both Customer and Successful Respondent to be added in a Purchase Agreement and given effect. No Additional Agreement added in a Purchase Agreement can conflict with or diminish a term or condition of the Contract. In the event of a conflict between a Purchase Agreement and the Contract, the Contract controls.

(f) Customer and Successful Respondent will negotiate and enter into written agreements regarding Statements of Work, service level agreements, remedies, acceptance criteria, information confidentiality, security requirements, limitation of liability (if any), and other terms specific to their Purchase Agreements under the Contract.

Invalid Term or Condition

(a) To the extent any term or condition of the Contract conflicts with an applicable state or United States law or regulation, that Contract term or condition is void and unenforceable. By executing a Contract which contains the conflicting term or condition, DIR makes no representations or warranties regarding the enforceability of the term or condition and DIR does not waive the applicable state or United States law or regulation which conflicts with the Contract term or condition.

(b) If a term or condition in the Contract, or the application of a term or condition to any party or circumstance, is held invalid, unenforceable, or illegal in any respect by a final judgment or order of the State Office of Administrative Hearings or a court of competent jurisdiction, the remainder of the Contract and the application of the term or condition to other parties or circumstances remains valid and in full force and effect.

Assignment

(a) DIR may assign the Contract or its rights and obligations under the Contract without prior written approval to: 1) a successor in interest (another state agency as designated by the Texas Legislature) or 2) as necessary to satisfy a regulatory requirement imposed upon a party by a governing body with the appropriate authority.

(b) A Customer may assign a Purchase Agreement issued under the Contract or its rights and obligations under the Purchase Agreement without prior written approval to: 1) a successor in interest (another state agency as designated by the Texas Legislature) or 2) as necessary to satisfy a regulatory requirement imposed upon a party by a governing body with the appropriate authority.

(c) Successful Respondent shall not assign or delegate the Contract or its rights or obligations under the Contract, including by operation of law or through a change in control, without prior written approval from DIR. Any attempted assignment or delegation in violation of this provision is null and void and has no effect.

(d) Successful Respondent shall not assign or delegate a Purchase Agreement or its rights or obligations under the Purchase Agreement, including by operation of law or through a change in control, without prior written approval from the Customer. Any attempted assignment or delegation in violation of this provision is null and void and has no effect.

Survival

(a) All Purchase Agreements shall survive the expiration or termination of the Contract for the term of the Purchase Agreement, unless the Customer terminates the Purchase Agreement sooner. However, regardless of the term of the Purchase Agreement, no Purchase Agreement shall survive the expiration or termination of the Contract for more than three (3) years (the “Survival Term”).

(b) In all instances of expiration or termination of the Contract, Successful Respondent shall continue to report all sales and pay the DIR Administrative Fees for the duration of the Survival Term. For the avoidance of doubt, Successful Respondent shall report even in months where sales are $0.

(c) Any provision of this Contract that contemplates performance or observance subsequent to any termination or expiration of this Contract shall survive any termination or expiration of this Contract and continue in full force and effect. Additionally, all provisions of this Contract shall survive the expiration or termination of this Contract to the fullest extent necessary to give the Parties the full benefit of the bargain expressed herein.

(d) The following provisions are among those that survive termination of the Contract or a Purchase Agreement:

(1) CTSA Section 5, and Section 10.4 of this Appendix A regarding the DIR Administrative Fee, and any and all payment obligations for which invoices were provided to Customer prior to the termination or expiration of the Contract;

(2) Section 4.10, Warranty and Return Policies;

(3) Section 4.12, Non-solicitation of Customer Employees;

(4) Section 5, Intellectual Property Matters;

(5) Section 6, Data Terms;

(6) Section 13, Indemnification and Liability;

(7) Section 10.4, Required Reports;

(8) Section 10.5, Records and Audit;

(9) Sections 12.6 and 12.7 regarding Rights Upon Termination;

(10) Section 14, Required Insurance Coverage; and

(11) Section 15.7, Confidentiality and the Texas Public Information Act.

Choice of Law The Contract is governed by and construed in accordance with the laws of the State of Texas, without regard to the conflicts of law provisions.

Compliance with Laws Successful Respondent shall comply with all laws and regulations applicable to the Contract and to the goods and services purchased under the Contract through a Purchase Agreement, as these laws and regulations currently exist and may be amended throughout the term of the Contract and any applicable Purchase Agreement.

Limitation of Authority Successful Respondent has no authority to act for or on behalf of DIR or the State except as expressly provided for in the Contract; no other authority, power or use is granted or implied. Successful Respondent may not incur any debts, obligations, expenses, or liabilities of any kind on behalf of the State or DIR.

Independent Contractor Successful Respondent agrees and acknowledges that during the existence of the Contract and any resulting Purchase Agreements, it is furnishing services in the capacity of an independent contractor and that Successful Respondent and its personnel are not employees of the Customer, DIR, or the State of Texas.

Warranty and Return Policies Successful Respondent certifies, to the extent applicable to the scope of the Contract, that Successful Respondent is authorized to sell and provide warranty support for all products and services listed in Appendix C of the Contract.

Customers may provide written notice to Successful Respondent of errors, inaccuracies, or other deficiencies in products or services provided by Successful Respondent under a Purchase Agreement within thirty (30) calendar days of receipt of an Invoice for the products or services. Successful Respondent shall correct the error, inaccuracy, or other deficiency at no additional cost to Customer.

In addition to the minimum warranty provided above, Successful Respondent shall adhere to Successful Respondent’s then-currently published policies concerning warranties and returns. Warranty and return policies offered to Customers shall not be more restrictive or more costly than warranty and return policies for other similarly situated customers for similar products and services.

Force Majeure General DIR, Customer, or Successful Respondent may be excused from performance under the Contract or a Purchase Agreement for any period when performance is prevented as the result of an act of God, strike, war, civil disturbance, epidemic, court order, or other causes that are beyond the reasonable control of such party and that by exercise of due foresight such party could not reasonably have been expected to avoid, and which, by the exercise of all reasonable due diligence, such party is unable to overcome (each such event, an “Event of Force Majeure”), on the condition that the party experiencing an Event of Force Majeure has prudently and promptly acted to take all steps that are within the party’s control to ensure performance and to shorten the duration or impact of the Event of Force Majeure. The party suffering an Event of Force Majeure shall provide notice of the Event to the other parties when commercially reasonable. Upon request by DIR or Customer, Successful Respondent shall provide copies of its most recent business continuity and disaster recovery plans.

Substitute Services If any Event of Force Majeure described above has substantially prevented, hindered, or delayed, or is reasonably expected to substantially prevent, hinder, or delay the performance by Successful Respondent of services necessary for the performance of critical DIR or Customer functions for longer than twenty-four (24) hours, Successful Respondent shall, unless and until otherwise directed by DIR or such Customer, use commercially reasonable efforts to procure such services from an alternate source at Successful Respondent’s expense for so long as the delay in performance shall continue, up to the charges actually paid to Successful Respondent for the services with respect to the period of nonperformance. If Successful Respondent is unable to procure such substitute services on an expedited basis or DIR or Customer elects to contract directly for such services, DIR or Customer may procure such services from an alternate source at DIR's or Customer’s expense.

Termination based on Force Majeure Subject to this Section, non-performance due to an Event of Force Majeure shall not be deemed a default or a ground for termination of the Contract. However, a Customer may terminate a Purchase Agreement if Customer determines that Successful Respondent will not be able to deliver services in a timely manner to meet the business needs of the Customer. Successful Respondent shall not have the right to additional payments or increased charges as a result of any Event of Force Majeure affecting Successful Respondent’s ability to perform.

Payment Obligation If Successful Respondent fails to provide services in accordance with the Contract due to the occurrence of an Event of Force Majeure, all amounts payable to Successful Respondent hereunder shall be reduced so that Customer is not required to pay any amounts for services that any Customer is not receiving, whether from Successful Respondent or from an alternate source at Successful Respondent’s expense pursuant to above.

Allocation of Resources Without limiting Successful Respondent’s obligations under this Agreement, whenever an Event of Force Majeure causes Successful Respondent to allocate limited resources between or among Successful Respondent’s customers and affiliates, DIR and Customers shall receive at least the same treatment as comparable Successful Respondent customers.

Non-Solicitation of Customer Employees Successful Respondent shall not solicit, directly or indirectly, any DIR employee who is associated with the Contract during the Contract term or for a period of ninety (90) calendar days following the expiration or termination of the Contract. Further, Successful Respondent shall not solicit, directly or indirectly, any Customer employee who is associated with a Purchase Agreement during the Purchase Agreement term or for a period of ninety (90) calendar days following the expiration or termination of the Purchase Agreement. For the avoidance of doubt, the publication of a generally available advertisement or solicitation and the consideration and hiring of a person responding to such a solicitation is not a breach of this Section, unless the advertisement or solicitation is undertaken as a means to circumvent this Section. This provision shall not operate or be construed to prevent or limit any employee's right to practice his or her profession or to utilize his or her skills for another employer or to restrict any employee's freedom of movement or association.

Submission of Written Complaints A person may submit a written complaint to DIR using the form provided on DIR’s webpage at the following address: https://dir.texas.gov/form/complaints.

Captions The captions contained in the Contract, Appendices, and Exhibits are intended for convenience and reference purposes only and shall in no way be deemed to define or limit any provision.

INTELLECTUAL PROPERTY MATTERS

Ownership of Pre-existing Materials Customers and Successful Respondent will continue to own their respective proprietary technologies and information developed before entering into the Contract. Any software licensed through the Successful Respondent and sold to Customers as a part of a service provided under the Contract, will be licensed directly to Customers, as appropriate.

Third-Party Commercial Software

(a) If applicable and necessary, all third-party commercial software used in performing services under the Contract will be provided to Customers under a separate license agreement between Customers and the owner (or authorized licensor) of such software.

(b) Derivative works of third-party software created by Successful Respondent for a Customer under a Purchase Agreement issued pursuant to the Contract shall, as between Successful Respondent and Customer, be considered Work Product, as defined in Section 5.4 below. Customer's ownership of such Work Product may be subject to, or limited by, the terms of the underlying agreement with the owner of the underlying third-party software. Successful Respondent shall notify Customer in advance if the terms of any such agreement will preclude or limit Customer's ownership of such Work Product and shall obtain Customer's consent prior to creating such Work Product.

Pre-existing Materials for Custom Software Deliverables Related to Services Neither Successful Respondent nor any of its agents, representatives, or subcontractors will incorporate any pre-existing materials (including third party commercial software) into services under the Contract or use any pre-existing materials to produce services under the Contract if such pre-existing materials will be needed by Customer in order to use such services unless:

Such pre-existing materials and their owners are identified to Customer in writing prior to implementation or installation, and Such pre-existing materials are either readily commercially available products for which Successful Respondent or its subcontractor, as applicable, has obtained a license (in form and substance approved by Customer, in its sole discretion) in the name of Customer, or are materials that Successful Respondent or its subcontractor, as applicable, has the right to license to Customer and has agreed to license to Customer on terms and conditions approved by Customer, in its sole discretion, prior to using such pre-existing materials to perform such services. Successful Respondent represents, warrants, and covenants that it shall not, during the Term or any time afterwards, assert any ownership rights, in any Customer-owned software, source code, and other materials.

Ownership of Work Product by Customer

(a) Customer shall, upon creation, exclusively own any deliverables produced by Successful Respondent for that Customer under a Purchase Agreement issued pursuant to the Contract (“Work Product”), including all tangible or intangible items or things that have been or will be prepared, created, developed, produced, invented, or conceived at any time after the Effective Date in connection with, or as a result of, the services provided under the Contract, including but not limited to any:

(1) works of authorship (such as manuals, instructions, printed material, graphics, artwork, images, illustrations, photographs, computer programs, computer software, scripts, configurations, object code, source code or other programming code, HTML code, flow charts, notes, outlines, lists, compilations, manuscripts, writings, pictorial materials, schematics, formulae, processes, algorithms, data, information, multimedia files, text web pages or websites, other written or machine readable expression of works fixed in any tangible media, and all other copyrightable works);

(2) trademarks, service marks, trade dress, trade names, logos, or other indicia of source or origin;

(3) ideas, designs, concepts, personality rights, methodologies, processes, techniques, apparatuses, inventions, formulas, approaches, specifications, systems, discoveries, or improvements, including any patents, trade secrets and know-how;

(4) domain names;

(5) any copies, and similar or derivative works to any of the foregoing, all documentation and materials related to any of the foregoing;

(6) all other goods, services, or deliverables to be provided to Customer under the Contract or a Statement of Work; and

(7) all Intellectual Property Rights in any of the foregoing, and which are or were created, prepared, developed, invented, or conceived for the use or benefit of Customer in connection with the Contract or a Statement of Work, or with funds appropriated by or for Customer or Customer’s benefit:

(i) by any Successful Respondent personnel or Customer personnel; or

(ii) any Customer personnel who then became personnel to Successful Respondent or any of its affiliates or subcontractors, where, although creation or reduction-to-practice is completed while the person is affiliated with Successful Respondent or its personnel, any portion of which was created, invented or conceived by that person while affiliated with Customer.

(b) For avoidance of doubt, Work Product does not include any pre-existing Successful Respondent or third-party owned materials.

(c) Successful Respondent specifically agrees that the Work Product shall be considered “works made for hire.” To the extent that the Work Product, under applicable law, may not be considered works made for hire, Successful Respondent agrees that the Contract effectively transfers, grants, conveys, assigns, and relinquishes exclusively to Customer all right, title, and interest in and to all ownership rights in the Work Product, and all Intellectual Property Rights in the Work Product, without the necessity of any further consideration, and Customer shall be entitled to obtain and hold in its own name all Intellectual Property Rights in and to the Work Product. Successful Respondent and Customer, as appropriate, will cooperate with one another and execute other documents as may be reasonably appropriate to achieve the objectives herein.

(d) Successful Respondent acknowledges that Successful Respondent and Customer do not intend Successful Respondent to be a joint author of the Work Product within the meaning of the Copyright Act of 1976.

(e) Successful Respondent will not make or retain any copies of the Work Product or any documentation or other products and results of the services without the prior written consent of Customer.

License to Intellectual Property

1. If necessary to the performance of any services under the Contract, upon notice from Successful Respondent, Customer may enter into good faith negotiations to license to Successful Respondent any intellectual property owned by Customer.

In the event the Successful Respondent makes or has made any modifications or configurations to any software owned by a Customer under this Contract, the Customer shall own the modifications or configurations and the related scripts, processes, and documentation, and Successful Respondent hereby assigns all of its rights, title and interests (including Intellectual Property Rights) to such modifications or configurations and the related scripts, processes, and documentation to the Customer. Upon the request of the Customer, Successful Respondent will give a written assignment of the modifications or configurations and the related scripts, processes, and documentation to the Customer.

Successful Respondent shall own all modifications to the Successful Respondent-owned software made by the Successful Respondent, including any modifications made on behalf of a Customer. Successful Respondent shall provide Customers with a nonexclusive, non-transferable, royalty-free limited right and license during the Term to use such modifications for purposes of receiving services under the Contract.

DATA TERMS

Authorized Use of Customer Data

1. Customers will be and remain the owner of all Customer Data made available by Customers to Successful Respondent or its agents, subcontractors, or representatives pursuant to the Contract. Successful Respondent and its Third-Party Providers shall not use Customer Data for any purpose other than the fulfillment of this Contract, nor will any part of Customer Data be disclosed, sold, assigned, leased, or otherwise disposed of to the general public or to specific third parties (other than as required to provide services under the Contract) or commercially exploited by or on behalf of Successful Respondent, nor will any Successful Respondent personnel (other than as required to provide services under the Contract) have access to Customer Data.

Successful Respondent shall not use Customer Data in any manner for purposes of training artificial intelligence technologies unless Successful Respondent obtains Customer’s prior written consent.

Successful Respondent will not possess or assert any lien or other right against Customer Data.

Without limiting the generality of this Section 6.1, Successful Respondent will only use personally identifiable information as strictly necessary to provide services under this Contract and will disclose such information only to its employees (other than as required to provide services under the Contract), provided Successful Respondent obtains such employees' written agreement to keep such information confidential and to use it only as required in the performance of Services.

Successful Respondent will comply at all times with all State and federal laws and regulations applicable to such personally identifiable information. Additionally, Successful Respondent may disclose such information to its subcontractors who have a need to know in connection with the performance of services under the Contract, provided Successful Respondent obtains such subcontractors’ written agreement to keep such information confidential and to use it only as required in the performance of services under the Contract.

Data Location Regardless of any other provision of the Contract or its incorporated or referenced documents, all Customer Data for Customers located in the State of Texas must remain and be located, handled, stored, processed, accessed, viewed, transmitted, and received, always and exclusively within the United States, unless the Customer provides specific written authorization for Customer Data to be located elsewhere. All Customers located outside the State of Texas may allow data location and handling outside of the United States at the Customer’s discretion. NOTE: CUSTOMERS SHOULD CONSIDER WHETHER THEY REQUIRE U.S.-ONLY DATA LOCATION AND HANDLING AND MAKE SUCCESSFUL RESPONDENT AWARE OF THEIR REQUIREMENTS.

Data Classification Upon request of a Customer that is a Texas state agency, Successful Respondent shall coordinate with Customer to implement a data classification scheme, as required under Texas Government Code Section 2054.161, for any data used in or produced from the products and services.

Data Breach Notification and Response In the event that Successful Respondent discovers, is notified of, or knows of any actual, suspected, or threatened data breach that compromises or could reasonably be expected to compromise Customer Data through unauthorized use, disclosure, or acquisition, Successful Respondent shall promptly, but no later than eight (8) hours after such discovery, provide notice of such breach to the affected Customer and, if the affected Customer is located in Texas, to DIR. After such notification, Successful Respondent shall:

(a) investigate to determine the nature, cause, and extent of the breach;

(b) take any action necessary to contain the incident and remediate, as soon as practicable and to the extent practicable, any harmful effect of the breach known to Successful Respondent;

(c) provide Customer and DIR with regular updates on the status of the breach; and

(d) cooperate with Customer in providing any required notices regarding the breach.

ACCESSIBILITY STANDARDS

General Accessibility Requirements

1. Under Texas Government Code Chapter 2054, Subchapter M, and DIR implementing rules, DIR and certain Customers must procure electronic and information resources that comply with the accessibility standards defined in Texas Administrative Code Title 1 Chapter 206 and Chapter 213, and in the Worldwide Web Consortium WCAG 2.1 AA technical standard as applicable when products or services are available in the commercial marketplace or when products are developed in response to procurement solicitations. All associated documentation must also be in an accessible format. Examples of accessible format include: properly formatted PDFs created by exporting documents instead of creating a jpeg file; alt text for images; keyboard-only navigation; color contrast; compatible with zoom magnification; graphics include labels and do not rely solely on color.

1. The Parties acknowledge and agree that accessibility requirements are subject to modification by relevant legislative bodies, and that the then-current accessibility requirements shall control for all purposes.

1. Successful Respondent shall work with Customer to ensure that the products and services provided pursuant to the Contract and any associated Purchase Agreement comply with the Customer’s accessibility requirements.

Specific Accessibility Requirements

(a) Successful Respondent shall cooperate with Customers, including by providing the information and documents identified below, to ensure that Customers are able to comply with all applicable accessibility laws and standards in purchasing products and services under this Contract.

(b) Upon Customer request, Successful Respondent must provide accurate Accessibility Conformance Reports (ACRs) created using the applicable sections of the Voluntary Product Accessibility Template® (VPAT®) WCAG Edition (Version 2.4 or higher) or URL links to specific ACRs located on manufacturer webpages (where available) for Commercial Off the Shelf (COTS) products, including Software as a Service (SaaS), for each product, product family, or service (as applicable) requested by such Customer. Instructions on how to complete this document are included in the template itself. Successful Respondent may provide ACRs based on earlier versions of the VPAT® template if completed ACRs already exist, and there have been no changes to the product or service since the time of the original document completion. If Successful Respondent claims that a proposed product, family of products, or service is exempt from accessibility requirements, it must specify the exempt product or family of products and the basis for the exemption in “Notes” located in the product information section of the VPAT 2.4 or higher.

(c) Upon Customer request, Successful Respondent must provide a completed, current, and accurate Vendor Accessibility Development Services Information Request (VADSIR) form for non-COTS offerings (such as services that include user accessed, online components) which documents Successful Respondent’s capability or ability to produce accessible electronic and information resources.

(d) For non-COTS offerings, Successful Respondent must ensure that the accessibility standards defined in Texas Administrative Code Title 1 Chapter 206 and Chapter 213, and other applicable standards, are integrated into key phases of the project development lifecycle including but not limited to planning, design, development, quality assurance testing, functional testing, user acceptance testing, maintenance; and report accessibility status at key project checkpoints as defined by Customers.

(e) Upon Customer request, Successful Respondent must provide a completed, current, accurate, Policy Driven Adoption for Accessibility (PDAA) Vendor Self-Assessment.

(f) Upon Customer request, Successful Respondent must provide additional documentation that supports the information contained in the aforementioned completed forms. Examples may include but are not limited to executed accessibility test plans and results, corrective actions plans, description of accessibility test tools, platforms, methods, and prior work.

CONTRACT PROMOTION

Texas State Agencies Required to Purchase Through DIR Contracts Texas Government Code Section 2170.051 requires Texas state agencies to use DIR’s consolidated telecommunications system to the fullest extent possible, unless the agency obtains a waiver from DIR.

Successful Respondent shall direct all Texas state agencies to coordinate all sales through existing DIR contracts unless Customer demonstrates that it has obtained a written waiver from DIR. Institutions of higher education are exempt from this Section.

Endorsements DIR does not endorse vendors, products, or services. The existence of this Contract does not indicate in any way that DIR endorses, approves, or otherwise recommends Successful Respondent or its offerings.

Public Disclosure Successful Respondent shall not make public disclosures or news releases about the Contract without prior written approval of DIR.

Responsibility for Website Content Successful Respondent is solely responsible for administration, content, Intellectual Property Rights, and all materials on Successful Respondent’s website. Successful Respondent is not required to maintain a webpage specific to the Contract. However, DIR may require a change of Contract-related content on Successful Respondent’s website if, in the opinion of DIR, such content does not adequately represent the Contract. Successful Respondent shall, at its own expense, correct any non-conforming or inaccurate Contract-related information posted at Successful Respondent’s website within ten (10) Business Days after written notification by DIR.

DIR and Customer Logos Successful Respondent may use a Customer's logo only upon prior written approval from that Customer.

Successful Respondent may use the DIR logo in the promotion of the Contract to Customers with the following stipulations:

(a) the logo may not be modified in any way;

(b) the size of the DIR logo must be equal to or smaller than Successful Respondent’s logo; and

(c) the DIR logo is only used to communicate the availability of services under the Contract to Customers.

Any other use of the DIR logo requires prior written permission from DIR.

Successful Respondent Logo If DIR receives Successful Respondent’s prior written approval, DIR may use Successful Respondent’s name and logo in the promotion of the Contract to communicate the availability of services under the Contract to Customers. DIR may use the logo on the DIR webpage or on printed materials. Any use of Successful Respondent’s logo by DIR must comply with and be solely related to the purposes of the Contract and any usage guidelines communicated to DIR from time to time. Nothing contained in the Contract gives DIR any right, title, or interest in or to Successful Respondent’s trademarks or the goodwill associated therewith, except for the limited usage rights expressly provided by Successful Respondent.

Trade Show Participation DIR may require Successful Respondent to participate in no more than two (2) DIR-sponsored trade shows each calendar year. Successful Respondent understands and agrees that participation is at Successful Respondent’s expense and includes providing a staffed booth display or similar presence. DIR will provide a minimum of four (4) months advance notice of any required participation. Successful Respondent must display the DIR logo at all DIR-sponsored trade shows. DIR reserves the right to approve or disapprove of the location or the use of the DIR logo in or on Successful Respondent’s booth.

PURCHASE AGREEMENTS, INVOICES, AND PAYMENTS

Purchase Agreements Customers must place Purchase Agreements directly with Successful Respondent. Purchase Agreements become effective and binding upon Successful Respondent when accepted by Successful Respondent.

Invoices

1. Successful Respondent shall submit Invoices directly to Customer. Customer shall make all payments for services purchased under the Contract and provide any acceptance of those services to Successful Respondent.

1. Invoices must be timely and accurate. Each Invoice must match Customer’s Purchase Agreement and include any written changes that may apply, as it relates to services, prices, and quantities. Invoices must include the Customer’s Purchase Agreement number or other pertinent information for verification of receipt of the products and services by the Customer.

1. Successful Respondent shall not list the DIR Administrative Fee as a separate line item when it provides pricing or Invoices to Customer. Invoices shall be provided at the listed rates, including any applicable telecommunications fees and surcharges, as allowed by this Contract and stated in Appendix C, Pricing Index.

Payments Successful Respondent and Customers shall comply with Texas Government Code Chapter 2251, commonly known as the Texas Prompt Payment Act, as applicable. For Customers that are not subject to Texas Government Code Chapter 2251, Customer and Successful Respondent must agree to acceptable payment terms in the Purchase Agreement. Payment under the Contract does not foreclose the right to recover wrongful payments at a later time.

Expense Reimbursement Except as provided in the Contract with respect to rates, prices, and authorized telecommunications fees and surcharges stated in Appendix C, Pricing Index, pricing for services provided under the Contract exclude all other expenses incurred by Successful Respondent in connection with its provision of the services (including management; travel and lodging; document reproduction and shipping; equipment, software required by Successful Respondent personnel; and long-distance telephone) unless agreed upon by Customer in writing. Successful Respondent hereby waives all claims for additional compensation related to the services except as set forth in Appendix C hereto.

Reimbursement amounts must not exceed the amounts authorized for state employees as adopted by each Customer; and all reimbursement rates must not exceed the maximum rates established for state employees under the current State Travel Management Program (https://comptroller.texas.gov/purchasing/programs/travel-management/). Successful Respondent must not include travel time as part of the amounts payable by Customer for any services rendered under the Contract. Successful Respondent must obtain Customer’s written pre-approval for any anticipated travel expenses. Customer may reject payment for travel expenses which are not pre-approved in writing. The DIR Administrative Fee does not apply to travel expense reimbursement.

Shipping and Handling Prices to Customers shall include…