Attachment 2 Template Statement of Work~1.docx

TEMPLATE STATEMENT OF WORK

BETWEEN

THE BOARD OF REGISTRATION IN MEDICINE

AND

[VENDOR]

FOR THE

PHYSICIAN ONLINE LICENSE MANAGEMENT SYSTEM

1. INTRODUCTION

The following document will serve as a Statement of Work (SOW) between the Board of Registration in Medicine (BORIM) and [Vendor Name] (Vendor) to apply to the implementation and support of the Online License Management System for physicians and physicians in training. Additional work in support of the Online License Management System may follow the initial work, at BORIM’s option, upon the execution of a Change Order for such work. The entire agreement between the parties (the "Agreement") consists of the following documents in the following order of precedence: (1) the Commonwealth Terms and Conditions; (2) the Commonwealth's Standard Contract Form; (3) the RFR for the Online License Management System, document #19CBBORIMLICENSERFR; (4) the Vendor's response thereto; (5) this SOW; and (6) the Vendor's response thereto; inclusive of all attachments and modifications, as amended by any subsequent negotiations between the parties.

2. DEFINITIONS

The terms used in this SOW, unless defined in this SOW or in an amendment made hereto, shall have the meaning ascribed to them in the other documents that constitute the Agreement between the parties.

"BORIM" refers to the Board of Registration in Medicine.

"BORIM Assets" means all property, equipment and hardware owned by BORIM, which BORIM provides to Vendor solely for Vendor’s or its Subcontractor’s use in the course of Vendor’s performance of services under this Agreement.

"Change Order" means an amendment to this SOW that modifies (or specifies additional) Tasks, Deliverables, or hourly rate services to be completed by Vendor under the terms of this Agreement.

"Cloud Offering" shall refer to Software-as-a-Service (SaaS), Infrastructure-as-a-Service (IaaS) and Platform-as-a-Service (PaaS).

"Deliverable" means any work product that Vendor delivers for the purposes of fulfilling its obligations to BORIM under the terms of the Agreement, including work product that Vendor must submit to BORIM for BORIM's approval in accordance with the formal acceptance procedures set forth within the SOW or the Change Order(s) entered into hereunder.

"Milestone Payment" means a defined payment amount associated with the completion of a particular Deliverable or set of Deliverables.

"Maintenance and Support Services" mean technical support services for the operation and maintenance of the Online License Management System as described in Section 3.2 of the RFR and to be provided hereunder by Vendor.

"Party" or "Parties" shall mean one or both of Vendor or BORIM.

"Project Manager" means a person responsible for leading or coordinating a project from its inception to execution, including planning, execution and managing the people, resources and scope of the project.

"Request for Responses" or "RFR" shall refer to the 19CBBORIMLICENSERFR procurement specification and referenced documents.

"Requirements" shall mean the requirements set forth in the RFR and its attachments, which may be modified and clarified by BORIM as permitted under the RFR.

"Services" shall mean the activities engaged in by the Vendor for the purpose of fulfilling its obligations under the terms of the Agreement, which may or may not result in the creation of a Deliverable.

"Task" means a material activity engaged in by Vendor for the purpose of fulfilling its obligations to BORIM under the terms of the Agreement, which may or may not result in the creation of a Deliverable.

3. OVERVIEW, EFFECTIVE DATE AND TERM

BORIM has engaged Vendor to implement and support an Online License Management System and to perform any other work as requested by BORIM for the project as forth in this SOW.

Vendor has held itself out to BORIM as qualified to provide such services under this SOW. The SOW will have an initial term of five (5) years, and may be extended for an additional five (5) years, in any time increment, at the discretion of BORIM.

Notwithstanding the foregoing, the provisions of this Agreement which by their nature would continue beyond any termination or expiration of this Agreement, which shall include Section 5 on System Security, Section 10.2 on Warranty and Section 10.3 on Title and Intellectual Property Rights, shall survive the expiration or any termination of this SOW to the extent necessary to permit their complete fulfillment or discharge.

4. POINTS OF CONTACT

4.1 Single Point of Contact

Vendor and BORIM will each assign a single point of contact with respect to this SOW. It is anticipated that the contact person will not change during the term of this Agreement. In the event that a change is necessary, the party requesting the change will provide prompt written notice to the other. In the event a change occurs because of a non-emergency, two-week written notice is required. For a change resulting from an emergency, prompt notice is required.

Vendor's contact person is _______________________.

BORIM's contact is Dennis Hanson, IT Program Manager.

5. SYSTEM SECURITY

As part of its work efforts under this SOW, Vendor will be required to use Commonwealth data and IT resources. For purposes of this work effort, "Commonwealth Data" shall mean data provided by BORIM to Vendor, which may physically reside at a Commonwealth or BORIM or Vendor location.

5.1 Commonwealth Data

In connection with Commonwealth Data, Vendor will implement commercially reasonable safeguards necessary to:

5.1.1 Prevent unauthorized access to Commonwealth Data from any public or private network;

5.1.2 Prevent unauthorized physical access to any information technology resources involved in the development effort; and

5.1.3 Prevent interception and manipulation of Commonwealth Data during transmission to and from any servers.

5.2 Commonwealth Personal Data

In addition to the above requirements for Commonwealth Data, Vendor may be required to use Commonwealth personal data under MGL Ch. 66A and/or personal information under MGL Ch. 93H, or to work on or with information technology systems that contain such data in order to fulfill part of its specified tasks. For purposes of this work effort, electronic personal data and personal information includes data provided by BORIM to Vendor which may physically reside at a location owned and/or controlled by the Commonwealth or BORIM or Vendor. In connection with electronic personal data and personal information, Vendor shall implement the maximum feasible safeguards reasonably needed to:

5.2.1 Ensure the security, confidentiality and integrity of electronic personal data and personal information;

5.2.2 Prevent unauthorized access to electronic personal data or personal information or any other Commonwealth Data from any public or private network;

5.2.3 Notify BORIM immediately if any breach of such system or of the security, confidentiality, or integrity of electronic personal data or personal information occurs.

5.3 Software Integrity Controls

Address the following controls if applicable, usually in the case wherein the Vendor will be developing code and migrating that code to a production environment.

Vendor and BORIM recognize the serious threat of fraud, misuse, and destruction or theft of data or funding. These threats could be introduced when unauthorized or inappropriate modifications are made to a production system. Vendor shall implement the following controls for the purpose of maintaining software integrity and traceability throughout the software creation life cycle, including during development, testing, and production:

5.3.1 Vendor shall configure the RFR required software and systems environments.

5.3.2 Vendor shall implement a change management procedure to ensure that activities in the non-production environments remain separate and distinct from the production environment. In particular, the change management procedure shall incorporate at least the following:

5.3.2.1 Segregates duties between development and testing of software changes and migration of changes to the production environment.

5.3.2.2 Implements security controls to restrict individuals who have development or testing responsibilities from migrating changes to the production environment.

5.3.2.3 Includes a process to log and review all source control activities.

5.3.3 Vendor shall implement a source control tool to ensure that all changes made to the production system are authorized, tested, and approved before migration to the production environment.

5.3.4 Vendor shall not make any development or code changes in a production environment.

5.3.5 Vendor shall implement additional internal controls as specified by BORIM.

5.4 DPH Data Management and Confidentiality Agreement

Vendor agrees that it is bound by the terms and conditions of the DPH Data Management and Confidentiality Agreement attached hereto as Exhibit B.

6. ACCEPTANCE OR REJECTION PROCESS

Vendor will submit the required Deliverables specified in the Agreement, including Deliverables or Tasks required by any Change Order or other amendment entered into hereunder, to the BORIM Project Manager for approval and acceptance. BORIM will review work product for each of the Deliverables and evaluate whether each Deliverable has clearly met in all material respects the criteria established in the Agreement and the relevant Change Order specifications. Once reviewed and favorably evaluated, the Deliverables will be deemed acceptable.

Within ten (10) working days of receipt of each Deliverable, the BORIM Project Manager will notify Vendor, in writing, of the acceptance or rejection of said Deliverable using the acceptance criteria specified in this Section and associated with the Task or Deliverable specifications in this Agreement. A form signed by BORIM shall indicate acceptance. Vendor shall acknowledge receipt of acceptance forms in writing. Any rejection will include a written description of the defects of the Deliverable. If BORIM does not respond to the submission of the Deliverable, within five (5) working days of BORIM's receipt of each Deliverable, Vendor shall provide a reminder notice to the BORIM Project Manager. If BORIM fails to reject a Deliverable within five (5) business days after BORIM's receipt of the reminder notice, the Task or Deliverable is deemed accepted.

If BORIM rejects a Deliverable, Vendor will, upon receipt of such rejection, act diligently to correct the specified defects and deliver an updated version of the Deliverable to BORIM. BORIM will then have an additional 5 (five) business days from receipt of the updated Deliverable to notify Vendor, in writing, of the acceptance or rejection of the updated Deliverable. Any such rejections will include a description of the way in which the updated Deliverable fails to correct the previously reported deficiency.

Following any acceptance of a Deliverable which requires additional work to be entirely compliant with the pertinent specifications, Vendor will provide a prompt correction or workaround; the timing of any workaround or partially compliant correction will be in compliance with the project schedule.

7. PROJECT MANAGEMENT - Project Managers Vendor and BORIM must notify the other party's Project Managers of any change in the name, address, phone number, fax number, or email address of their respective Project Managers.

7.1 BORIM Project Manager

BORIM'S designated Project Manager shall perform project management on behalf of BORIM for this engagement. BORIM's Project Manager will:

7.1.1 Work closely with Vendor Project Manager to ensure successful completion of the project.

7.1.2 Consult with Vendor Project Manager to develop the project schedule.

7.1.3 Review weekly status reports and schedule weekly meetings with Vendor, as necessary.

7.1.4 Coordinate participation from other agencies and/or vendors as required during the engagement.

7.1.5 Acquire BORIM project team members as needed.

7.1.6 Coordinate BORIM's review of the Deliverables and sign an acceptance form to signify acceptance for each accepted Deliverable.

7.2 Vendor Project Manager

Vendor's designated Project Manager shall perform project management on behalf of Vendor for this engagement. Vendor's Project Manager will:

7.2.1 Be responsible for administering this Agreement and the managing of the day-to-day operations under this Agreement.

7.2.2 Serve as an interface between the BORIM Project Manager and all Vendor personnel participating in this engagement.

7.2.3 Develop and maintain the project plan, in consultation with the BORIM Project Manager.

7.2.4 Facilitate regular communication with the BORIM Project Manager, including weekly status reports/updates, and review the project performance against the project plan. Facilitate weekly project status meetings for the duration of the engagement.

7.2.5 Update the project plan on a weekly basis and distribute at weekly meetings for the duration of the engagement.

7.2.6 Sign acceptance forms to acknowledge their receipt from BORIM.

7.2.7 Be responsible for the management and deployment of Vendor personnel.

Vendor's Project Manager reports to _____________________ _

7.3 Vendor Solution Architect Responsibilities

7.3.1 Must work with EHS Enterprise Architecture Team to ensure that the proposed solution architecture and design are in line with EHS Architecture Guidelines in the Secretariat Application Reference Manual Version 3.3.

7.4 Issue Resolution

The Project Managers (Vendor and BORIM) bear the primary responsibility for ensuring issue resolution. If they mutually agree that they are unable to resolve an issue, they are responsible for escalating the issue to the appropriate representative of senior management for each party. The names and contact information for such representatives shall be submitted to the Project Managers prior to the commencement of work hereunder.

7.5 Corrective Action Plan

At any point during this Agreement, if BORIM identifies, in its sole judgment, any deficiency in the Vendor’s performance under this Agreement, BORIM may require the Vendor to develop a corrective action plan to correct such deficiency. The Vendor must submit any such corrective action plan to BORIM and must, within three business days of the request, implement such corrective action plan only as approved or modified by BORIM.

8. AMENDMENTS

This Agreement may be amended prior to the end of the term. The Project Manager who would like to request a Change Order or any other amendment to the Agreement will provide the suggested amendment in writing to the other party's Project Manager. The Project Managers will jointly determine whether the change impacts any terms contained within the Agreement. The parties may mutually agree to the change through a written amendment to this SOW.

Vendor and BORIM may agree, from time to time during the Term, to execute amendments to the scope of work or Change Orders, which, when signed by the authorized representatives of each of the parties, will be deemed incorporated herein by reference. Vendor acknowledges that this Agreement does not constitute a retainer and that BORIM is not required to enter into any amendments or Change Orders with Vendor subsequent to the initial work described in this SOW.

For any amendment entered into under this Agreement where Vendor will be providing services on a Time and Materials basis, the parties shall apply the Time and Materials terms as described in Section 11.3.2 of this SOW to the relevant Change Order or amendment.

___________________________ will sign this SOW and all amendments hereto on behalf of BORIM.

___________________________, being an authorized signatory named in Vendor's Response to this RFR, will sign this SOW and all amendments thereto on behalf of Vendor.

9. PERSONNEL

9.1 Key Personnel

Vendor agrees to provide the following personnel for the following amounts of time for the duration of this project:

Table 1: Key Personnel

Project Manager

Solution Architect

Vendor shall assign all of the foregoing personnel to this engagement on the time basis set forth in Table 6. In the event that a change is necessary, Vendor Project Manager will provide prompt written notice to BORIM Project Manager of the proposed change. If the personnel change is a result of a non-emergency, the Vendor Project Manager shall provide BORIM Project Manager two-week written notice. For personnel changes that result from an emergency, Vendor Project Manager shall provide prompt written notice to BORIM Project Manager. BORIM Project Manager has the right to accept or reject all personnel. Vendor's personnel must comply with the Executive Office of Technology Services and Security relevant Policies, Standards and Guidance, which may be located at https://www.mass.gov/orgs/executive-office-of-technology-services-and-security and BORIM's workplace policies, which may be located at BORIM locations.

9.2 Equipment, Work Space, Office Supplies

Vendor will submit a list of employees who will need access to the building and to state systems before execution of this SOW. Any Vendor employees who have access to IT resources must comply with the "Acceptable Use Policy" (see https://www.mass.gov/orgs/executive-office-of-technology-services-and-security ) or any alternative Acceptable Use Policy adopted by BORIM.

9.3 BORIM Assets

Title in and to BORIM Assets shall remain with BORIM but BORIM Assets may be used by Vendor and Subcontractors for the sole purpose of performing the Services. BORIM reserves the right to recall BORIM Assets at any time, in which case any obligations of Vendor that cannot be performed as a result of such BORIM Assets recall shall be suspended. Vendor shall not make any changes to any BORIM Assets without receiving express written permission from BORIM. Vendor hereby assumes risk and liability for loss of any BORIM Assets while in the possession of Vendor, unless such loss is caused by BORIM or BORIM Personnel or a Force Majeure Event, as well as for any changes made to BORIM Assets by anyone other than BORIM without prior approval by BORIM. It is the responsibility of Vendor to inform BORIM when wear of BORIM Assets has progressed beyond normal. Upon termination of this Agreement for any reason or at any time upon prior written notice from BORIM, and regardless of whether Vendor has any claim against BORIM under this Agreement, all BORIM Assets in Vendor’s possession or control shall be returned to BORIM. Except for property to which title is transferred to Vendor as evidenced by a bill of sale or comparable written instrument, no interest or obligation is conferred upon Vendor regarding BORIM Assets beyond the limited right to use such BORIM Assets in accordance with the terms of this Agreement.

9.4 Related Project Knowledge

In addition to the “Statewide Contract IT Specifications,” Vendor shall, prior to commencing any other work under this SOW, become familiar with the following state statute and regulations related to licensing: 243 CMR 2.00 and M.G.L. c. 112, s. 2.

9.5 Intellectual Property and Work Effort Agreement for Vendor's Employees, Contractors and Consultants and Agents Vendor shall ensure that each of Vendor personnel providing services under this SOW, regardless of whether the individual is an employee, contractor, or agent of Vendor, shall, prior to rendering any services under this SOW, sign the "Intellectual Property and Work Effort Agreement for Vendor's Employees, Contractors, Consultants, and Agents" (the "IPAWE Agreement") which is attached hereto as Exhibit A. If Vendor's personnel who will be rendering services under this SOW have already executed an agreement that, in the opinion of BORIM's counsel, provides legal protection to the Commonwealth as strong as that provided by the IPAWE Agreement, Vendor may substitute such agreement in place of the IPAWE Agreement for such personnel. Vendor shall return the signed copies of the IPAWE Agreement, or the BORIM Project Manager's pre-approved substitute agreement, to BORIM's Project Manager prior to the rendering of any services under this SOW.

10. ADDITIONAL TERMS

10.1 Code Review

All Deliverables that include software code or applications shall follow current industry design and best practices, including, but not limited to those published by The National Institute of Standards & Technology ( NIST), the SANS (SysAdmin, Audit, Network, Security (SANS) Institute), and other recognized bodies.

Vendor shall cooperate with code review of the relevant software or application Deliverables. Prior to implementation or acceptance of a Deliverable, Vendor shall subject Deliverables that include software code or script to independent application review by BORIM or its delegated reviewer to validate that all applicable enterprise IT standards and security policies have been met, as well as other specifications as identified in this Agreement or the relevant Change Order or other amendment. The review shall be performed by individuals other than Vendor or BORIM's staff who developed the Deliverables. For purposes of this requirement, "independent" may include other staff of the BORIM provided no direct reporting relationships exist between the development and review organizations.

10.2 Warranty

Consistent with this RFR, Vendor represents and warrants to BORIM that:

10.2.1 Vendor and its subcontractors are sufficiently staffed and equipped to fulfill Vendor's obligations under this Agreement;

10.2.2 Vendor's services will be performed:

10.2.2.1 By appropriately qualified and trained personnel;

10.2.2.2. With due care and diligence and to a high standard of quality as is customary in the industry;

10.2.2.3 In compliance with the project schedule and the terms and conditions of this Agreement; and

10.2.2.4 In accordance with all applicable professional standards for the field of expertise;

10.2.3 Deliverables delivered under this Agreement will substantially conform with the Tasks and Deliverable descriptions set forth in this Agreement;

10.2.4 All media on which Vendor provides any software under this Agreement shall be free from defects;

10.2.5 All software delivered by Vendor under this Agreement shall be free of Trojan horses, back doors, and other malicious code;

10.2.6 Vendor has obtained all rights, grants, assignments, conveyances, licenses, permissions and authorizations necessary or incidental to any materials owned by third parties supplied or specified by Vendor for incorporation in the Deliverables to be developed;

10.2.7 Documentation provided by Vendor under this Agreement shall be in sufficient detail so as to allow suitably skilled, trained, and educated BORIM personnel to understand the operation of the Deliverables. Vendor shall promptly, at no additional cost to BORIM make corrections to any documentation that does not conform to this warranty; and

10.2.8 Any software or systems created or modified by Vendor under this SOW shall operate in substantial conformance with the specifications for the software and/or systems created or modified for a minimum of six months (the "Warranty Period") after BORIM accepts such software and/or systems created or modified pursuant to Section 6 of this SOW. During the Warranty Period, Vendor shall correct any Severity Level l, II or III defects, as defined in the RFR, at no charge to BORIM.

10.2.9 Maintenance and support services shall be provided as set forth in Section 3.2 of the RFR.

10.3 Title and Intellectual Property Rights

10.3.1 Definition of Property

The term Property as used herein includes the following forms of property: (1) confidential, proprietary, and trade secret information; (2) trademarks, trade names, discoveries, inventions processes, methods and improvements, whether or not patentable or subject to copyright protection and whether or not reduced to tangible form or reduced to practice; and (3) works of authorship, wherein such forms of property are required by Vendor to develop, test, and install the any product to be developed that may consist of computer programs (in object and source code form), scripts, data, documentation, the audio, visual and audiovisual content related to the layout and graphic presentation of the BORIM Applications Portfolio or any component part or module, text, photographs, video, pictures, animation, sound recordings, training materials, images, techniques, methods, algorithms, program images, text visible on the Internet, HTML code and images, illustrations, graphics, pages, storyboards, writings, drawings, sketches, models, samples, data, other technical or business information, reports, and other works of authorship fixed in any tangible medium.

10.3.2 Source of Property

The development of the software products that may be developed as enhancements hereunder will involve intellectual property derived from four different sources: (1) a third party although this provision may not apply to all contracts, but it could apply if Vendor is using third party intellectual property to perform tasks or deliver Deliverables, e.g. configuring another entity's commercial off the shelf software; (2) that was developed by Vendor for the open market (e.g. Vendor's commercial off the shelf software); (3) that was developed by Vendor for other individual clients, or for internal purposes prior to the Effective Date of this Statement of Work and not delivered to any other client of Vendor's; and (4) developed by Vendor specifically for the purposes of fulfilling its obligations to BORIM under the terms of this Agreement. Ownership of the first and second categories of intellectual property is addressed in separate agreements between BORIM and the contractors and resellers of work product. This Section 10.3 of the Statement of Work addresses exclusively ownership rights in the third and fourth categories of intellectual property.

10.3.3 Vendor Property and License

Vendor will retain all right, title and interest in and to all Property developed by it, i) for clients other than the Commonwealth, and ii) for internal purposes and not yet delivered to any client, including all copyright, patent, trade secret, trademark and other intellectual property rights created by Vendor in connection with such work (hereinafter the "Vendor Property"). BORIM acknowledges that its possession, installation or use of Vendor Property will not transfer to it any title to such property. BORIM acknowledges that Vendor Property contains or constitutes commercially valuable and proprietary trade secrets of Vendor, the development of which involved the expenditure of substantial time and money and the use of skilled development experts. BORIM acknowledges that Vendor Property is being disclosed to BORIM to be used only as expressly permitted under the terms herein. BORIM will take no affirmative steps to disclose such information to third parties, and, if required to do so under the Commonwealth's Public Records Law, M.G.L. c. 66 §10, or by legal process, will promptly notify Vendor of the imminent disclosure so that Vendor can take steps to defend itself against such disclosure.

Except as expressly authorized herein, BORIM will not copy, modify, distribute or transfer by any means, display, sublicense, rent, reverse engineer, decompile or disassemble Vendor Property.

Vendor grants to BORIM, a fully-paid, royalty-free, non-exclusive, non-transferable, worldwide, irrevocable, perpetual, assignable license to make, have made, use, reproduce, distribute, modify, publicly display, publicly perform, digitally perform, transmit, copy, sublicense to any BORIM subcontractor for purposes of creating, implementing, maintaining or enhancing a Deliverable, and create derivative works based upon Vendor Property, in any media now known or hereafter known, to the extent the same are embodied in the Deliverables, or otherwise required to exploit the Deliverables. During the Term of this Agreement and immediately upon any expiration or termination thereof for any reason, Vendor will provide to BORIM the most current copies of any Vendor Property to which BORIM has rights pursuant to the foregoing, including any related documentation.

Notwithstanding anything contained herein to the contrary, and notwithstanding BORIM's use of Vendor Property under the license created herein, Vendor shall have all the rights and incidents of ownership with respect to Vendor Property, including the right to use such property for any purpose whatsoever and to grant licenses in the same to third parties. Vendor shall not encumber or otherwise transfer any rights that would preclude a free and clear license grant to the Commonwealth.

10.3.4 Commonwealth Property

In conformance with the Commonwealth's Standard Terms and Conditions, all Deliverables created under this Agreement whether made by Vendor, subcontractor or both are the property of BORIM, except for the Vendor Property embodied in the Deliverable. Vendor irrevocably and unconditionally sells, transfers and assigns to BORIM or its designee(s), the entire right, title, and interest in and to all intellectual property rights that it may now or hereafter possess in said Deliverables, except for the Vendor Property embodied in the Deliverables, and all derivative works thereof. This sale, transfer and assignment shall be effective immediately upon creation of each Deliverable and shall include all copyright, patent, trade secret, trademark and other intellectual property rights created by Vendor or subcontractor in connection with such work (hereinafter the "Commonwealth Property").

All copyrightable material contained within a Deliverable and created under this Agreement are works made for hire. Vendor bears the burden to prove that a work within a Deliverable was not created under this Agreement. If work is determined to not be made for hire or that designation is not sufficient to secure rights, to the fullest extent allowable and for the full term of protection otherwise accorded to Vendor under such law, Vendor shall and hereby irrevocably does, assign and transfer to BORIM free from all liens and other encumbrances or restrictions, all right, title and interest Vendor may have or come to have in and to such Deliverable. VENDOR HEREBY WAIVES IN FAVOR OF BORIM (AND SHALL CAUSE ITS PERSONNEL TO WAIVE IN FAVOR OF CLIENT IN WRITING SIGNED BY SUCH PERSONNEL) ANY AND ALL ARTIST'S OR MORAL RIGHTS (INCLUDING, WITHOUT LIMITATION, ALL RIGHTS OF INTEGRITY AND ATTRIBUTION) IT MAY HAVE PURSUANT TO ANY STATE OR FEDERAL LAWS OF THE UNITED STATES IN RESPECT TO ANY DELIVERABLE AND ALL SIMILAR RIGHTS UNDER THE LAWS OF ALL OTHER APPLICABLE JURISDICTIONS.

Vendor agrees to execute all documents and take all actions that may be reasonably requested by BORIM to evidence the transfer of ownership of or license to intellectual property rights described in this Section 9.4, including providing any code used exclusively to develop such Deliverables for BORIM and the documentation for such code. Vendor acknowledges that there are currently and that there may be future rights that the Commonwealth may otherwise become entitled to with respect to Commonwealth Property that does not yet exist, as well as new uses, media, means and forms of exploitation, current or future technology yet to be developed, and that Vendor specifically intends the foregoing ownership or rights by the Commonwealth to include all such now known or unknown uses, media and forms of exploitation. The Commonwealth retains all right, title and interest in and to all derivative works of Commonwealth Property.

BORIM hereby grants to Vendor a nonexclusive, revocable license to use, copy, modify and prepare derivative works of Commonwealth Property only during the term and only for the purpose of performing services and developing Deliverables for the BORIM under this Agreement.

With respect to web site development contracts, BORIM will bear sole responsibility for registering the software or system domain name or URL, applying for any trademark registration relating to the software or system domain name or URL and applying for any copyright registration related to its copyright ownership with respect to any Commonwealth Property.

10.3.5 Third-party Intellectual Property

If the Deliverables contain or will contain any third-party intellectual property to which Vendor intends to provide a sublicense, Vendor must provide copies of all such sublicense agreements as early in the process as possible. The sublicense agreements must be included in Vendor's RFR Response to BORIM, or, if the requirement to utilize sublicensed intellectual property is not known at the outset of the project, as soon as the requirement becomes known. Sublicenses to third-party intellectual property can ONLY be provided if they are provided at no charge to the Commonwealth.

10.4 No Lockout

BORIM shall possess and retain all rights, title and interest in and to Commonwealth Data, and Vendor’s use and possession thereof is solely on behalf of BORIM. BORIM may access and copy any Commonwealth Data in Vendor’s possession at any time, and Vendor shall reasonably facilitate such access and copying promptly after a request by BORIM.

10.5 Business Continuity

In the event that Vendor ceases business operations and there is no acquiring entity that will manage the license management system, Vendor shall provide BORIM with source code and process manuals to allow BORIM to take over the management of the application for its own internal business use only, upon the payment of license fees and for the term, if applicable. BORIM shall procure the necessary vendor agreements for all third party software or platforms that are not the property of Vendor. Vendor shall provide a list of all third-party contracts that are used in conjunction with the licensing management system at the time it provides the applicable source code.

10.6 Insurance

The Vendor shall maintain at Vendor’s expense, and shall ensure that any of its teaming partners and significant subcontractors maintain at their expense, all insurance required by law for their employees, including worker’s compensation and unemployment compensation and public liability and property damage insurance and any other insurance that may be necessary for its performance under the Agreement, and shall provide BORIM with certification of same upon request.

10.7 New Initiatives

BORIM and the Vendor may amend any Agreement to implement new initiatives related to this scope of services or the programs and agencies impacted by this scope of services. The parties shall negotiate in good faith to implement any initiatives proposed by BORIM. Vendor’s responsibilities, including schedule, payment, staffing, space, and budgetary requirements shall be adjusted appropriately to accommodate the implementation of such initiatives.

10.8 Effect of Invalidity of Clauses

If any clause or provision of the Agreement is in conflict with any state or federal law or regulation, that clause or provision shall be null and void and any such invalidity shall not affect the validity of the remainder of the Agreement.

10.9 No Third-Party Enforcement

The Agreement shall be enforceable only by the parties, or officers or agencies of the Commonwealth authorized to act on behalf of BORIM or its successors. Nothing in the Agreement shall be deemed to confer benefits or rights to any other parties.

10.10 Equal Employment Opportunity

Any contracts entered into by the Vendor shall contain a provision requiring compliance with federal Executive Order 11246, as amended by Executive Order 11375, and as supplemented by regulations at 41 CFR Part 60.

10.11 Prohibited Activities and Conflict of Interest

The Vendor represents that no person who is an owner, employee, consultant, or subcontractor of the Vendor, has been debarred by any federal agency, excluded from participation in a program under Titles XVIII, XIX, or XXI of the Social Security Act, or subjected to a civil money penalty under the Social Security Act. The Vendor shall not have any interest that conflicts with the performance of services under the Agreement for the duration of the Agreement, it being understood that the sale of similar goods or services to other customers does not of itself constitute such a conflict.

10.12 Compliance with Laws

The Vendor shall comply with all applicable statutes, orders, and regulations promulgated by any federal, state, municipal, or other governmental authority relating to its property or its operations under the terms of the Agreement.

10.13 Assignment

The Vendor shall not assign or transfer any right, interest, or obligation under the Agreement to any successor entity or other entity without the prior written consent of BORIM.

10.14 Independent Contractors

The Vendor, its employees, and any other of its agents shall act in an independent capacity in the performance of the Agreement, and not as officers or employees of BORIM or the Commonwealth of Massachusetts.

10.15 Force Majeure

Neither BORIM nor the Vendor shall be liable to any other party or be deemed to be in breach of the Agreement for any failure or delay in rendering performance arising out of causes beyond its reasonable control and without its fault or negligence. Such causes may include, but are not limited to, acts of God or the public enemy, fires, floods, epidemics, quarantine restrictions, strikes, freight, embargoes and unusually severe weather. If the Vendor’s failure to perform is caused by the default of a subcontractor, and if such default arises out of causes beyond the reasonable control of both the Vendor and subcontractor, and without the fault or negligence of either of them, the Vendor shall not be liable for failure to perform, unless the equipment or services to be furnished by the subcontractor were obtainable from other sources in sufficient time to permit the Vendor to meet the requirements of the Agreement.

Dates or times of performance will be extended to the extent of delays excused by this Section, provided that the party whose performance is affected notifies the other promptly of the existence and nature of such delay.

It is agreed, however, that since the performance dates of the Agreement are important to the implementation of essential BORIM work, continued failure to perform for periods aggregating 30 or more calendar days due to force majeure shall be deemed to render performance impossible, and BORIM shall thereafter have the right to terminate the Agreement without liability, except that BORIM shall pay the Vendor for services rendered by the Vendor prior to the termination date.

10.16 Waiver

The acceptance of, or payment for, services rendered by the Vendor shall not be construed to waive any requirements of the Agreement, or any of BORIM’s remedies for failure to fulfill such requirements.

10.17 Publicity

The Vendor is prohibited from selling, publishing or distributing any information collected or derived from the Agreement, except as specifically authorized by BORIM.

The Vendor may not use its relationship with the Commonwealth or BORIM, for advertising or any form of publicity without the Commonwealth’s or BORIM’s approval (including approval of text and images used in advertising). The Vendor may not directly or indirectly represent that a product or service purchased by the Commonwealth or BORIM from the Vendor is endorsed by the Commonwealth or BORIM.

10.18 Restriction on the Use of the Commonwealth Seal

The Vendor is not allowed to display the Commonwealth of Massachusetts Seal in its bid package or subsequent marketing materials because use of the coat of arms and the Great Seal of the Commonwealth for advertising or commercial purposes is prohibited by law.

10.19 Publications Regarding or Derived From This Contract

The Vendor shall not disseminate, reproduce, display or publish any report, information, data or other materials or documents produced in whole or in part pursuant to this Agreement without the prior consent of BORIM, nor shall any such report, information, data or other materials or documents be the subject of an application for copyright by or on behalf of the Vendor without the prior written consent of BORIM.

Created material derived from the Vendor’s performance of the resulting contract shall not be published or offered for publication through any medium of communication, including press release, without the prior approval of BORIM.

If, following the BORIM’s consent to publication, the Vendor or any subcontractor publishes a work dealing with its performance under this Agreement, or the results and accomplishments attained in such performance, BORIM shall have a non-exclusive, irrevocable, royalty-free license to reproduce, publish or otherwise use and authorize others to use the publication.

10.20 Covenant against Contingent Fees

The Vendor represents that no persons other than bona fide employees working solely for the Vendor, have been employed or retained to solicit or secure this Agreement upon an arrangement or understanding for a commission, percentage, brokerage fee, gift or any other consideration contingent upon the award or making of this Agreement. For breach or violation of this representation, then in addition to any other remedies it may have for such breach, BORIM shall have the right to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such commission, percentage, brokerage fee or other consideration.

10.21 Access to Contract Materials and Staff

The Vendor must grant BORIM, EOHHS, the Massachusetts Attorney General’s Office, the Massachusetts Inspector General’s Office, the Massachusetts State Auditor’s Office, the U.S. Department of Health and Human Services, the U.S. Comptroller General, or any of their duly authorized representatives and oversight authorities, access to any books, documents, papers and records and staff of the Vendor which are directly pertinent to the contract for the purpose of making audits, examinations, excerpts and transcriptions. All of Vendor’s subcontracts must contain a similar provision granting access to subcontractor’s materials and staff.

10.22 Accessibility

It is assumed as of the date of the RFR that no end-user interfaces or non-technical staff access will be provided under this Agreement; if such interface or access is later provided, the Vendor shall ensure that the deliverables adhere to the ITD Enterprise Information Technology Accessibility Standards and the ITD Web Accessibility Standards (collectively, the “Enterprise Accessibility Standards”) issued by Massachusetts’ Information Technology Division (“MassIT”).

10.23 Electronic Funds Transfer

The Vendor must agree to participate in the Commonwealth Electronic Funds Transfer (EFT) program for receiving payments, unless Vendor can provide compelling proof that it would be unduly burdensome. EFT is a benefit to both contractors and the Commonwealth because it ensures fast, safe and reliable payment directly to contractors and saves both parties the cost of processing checks. Contractors are able to track and verify payments made electronically through the Comptroller’s Vendor Web system.

The Vendor, upon notification of contract award, will be enrolled in EFT. The Authorization for Electronic Funds Transfer (EFT) Form, along with the voided check, submitted within the RFR Response will be reviewed, approved, and forwarded to the Office of the Comptroller. If Vendor is already enrolled in the program, it may so indicate in its Response. Because the Authorization for Electronic Funds Payment Form contains banking information, this form, and all information contained on this form, shall not be considered a public record and shall not be subject to public disclosure through a public records request.

The requirement to use EFT may be waived by the Strategic Sourcing Team (SST) on a case-by-case basis if participation in the program would be unduly burdensome on Vendor. If Vendor is claiming that this requirement is a hardship or unduly burdensome, the specific reason must be documented in its Response. The SST will consider such requests on a case-by-case basis and communicate the findings with the Vendor.

10.24 Prompt Payment Discounts (PPD)

The Vendor must agree to offer discounts through participation in the Commonwealth Prompt Payment Discount (PPD) initiative for receiving early and/or on-time payments, unless Vendor can provide compelling proof that it would be unduly burdensome. PPD benefits both contractors and the Commonwealth. Contractors benefit by increased, usable cash flow as a result of fast and efficient payments for commodities or services rendered. Participation in the Electronic Funds Transfer initiative further maximizes the benefits with payments directed to designated accounts, thus eliminating the impact of check clearance policies and traditional mail lead time or delays. The Commonwealth benefits because contractors reduce the cost of products and services through the applied discount. Payments that are processed electronically can be tracked and verified through the Comptroller’s Vendor Web system. The PPD form can be found under the “Forms & Terms” tab of the RFR.

The Vendor must submit agreeable terms for Prompt Payment Discount using the PPD form within its proposal, unless otherwise specified by the SST. The SST will review, negotiate or reject the offering as deemed in the best interest of the Commonwealth.

The requirement to use PPD offerings may be waived by the SST on a case-by-case basis if participation in the program would be unduly burdensome on Vendor. If Vendor is claiming that this requirement is a hardship or unduly burdensome, the specific reason must be documented in or attached to the PPD form.

10.25 Subcontracting

Subcontractors may be used to perform work under the Agreement only upon BORIM’s prior written approval. Every contract entered into between the Vendor and a subcontractor is subject to BORIM’s prior written approval, and a copy of each such contract must be provided to BORIM upon its request, whether in draft form or as executed, at the time of BORIM’s request.

The substitution of one subcontractor for another may be made only with prior written approval of BORIM.

The Vendor will be and will remain fully responsible for any subcontractors’ compliance with all terms, conditions, and specifications of the Agreement. This responsibility also extends to the Vendor’s obligations regarding warranties, maintenance, and support. BORIM requires an agreement regarding warranties, fix times, scheduled maintenance downtime, etc., irrespective of whether deliverables or services are to be provided by third parties other than the Vendor.

The hiring of a subcontractor or other third-party Vendor by the Vendor or the utilization of a third-party Vendor’s products or services shall not eliminate or reduce the Vendor’s obligations as prime contractor under the Agreement. The Vendor will serve as the prime contractor for each subcontractor that the Vendor utilizes in its performance under the Agreement and shall be responsible for the performance of such subcontractors.

In the event the Vendor receives a notice of termination from any key subcontractor under any subcontract, the Vendor shall promptly notify BORIM of such notice of termination and, if the parties believe that it is in the best interests of the project for the key subcontractor to continue performance of the subcontract, use commercially reasonable efforts to prevent such termination, although nothing in this Section shall require the Vendor to increase the fees to be paid to such key subcontractor in order to prevent such termination. The Vendor shall use commercially reasonable efforts to promptly mitigate any damages and/or additional costs that may be incurred by BORIM as a result of such termination, if it occurs. The termination of any subcontract shall not eliminate or reduce the Vendor’s obligations hereunder. In the event any subcontract with a key subcontractor is terminated during the Agreement, the Vendor shall promptly notify BORIM of such termination and: (a) promptly locate a suitable replacement for such subcontractor, if necessary; or (b) obtain the rights to any technology, know-how, expertise, labor, personnel or any other rights, in each case as necessary to fulfill the obligations of Vendor under this Agreement.

10.26 Vendor Personnel

The Vendor shall assume full responsibility for the supervision, direction, control of Vendor personnel. In no event will any of Vendor’s personnel (including, without limitation, Vendor’s full and part-time employees, contract employees, individual consultants, independent contractors, agents, and subcontractors, hereinafter, “Vendor personnel”) be considered employees of BORIM. For the avoidance of doubt, neither Vendor nor any of its personnel are entitled to or entitled to participate in any Commonwealth of Massachusetts pension or medical or dental coverage nor any other benefits afforded to any BORIM employees. All matters governing the employment of Vendor’s personnel shall be Vendor’s full responsibility, including payment of taxes, unemployment compensation, and the provision of required benefits or compensation. Vendor represents and warrants that it has completed the I-9 Process for all Vendor personnel and that all Vendor personnel are authorized to work for Vendor in the United States. Notwithstanding anything to the contrary contained in Section 11 of the Commonwealth Terms and Conditions, Vendor agrees to fully defend, indemnify and hold BORIM and the Commonwealth harmless from and against any claims, liabilities, and costs for (a) any violation of immigration law by Vendor or its personnel; and (b) Vendor’s obligations to its employees.

10.27 Counterparts

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

10.28 Cure

A party must notify…