Attachment A_Terms_and_Conditions.pdf

Attachment A: Terms and Conditions

GENERAL TERMS AND CONDITIONS

The following Terms and Conditions are MANDATORY and shall be incorporated verbatim in any contract award.

A. Mandatory Contract Terms | Virginia IT Agency

B. ETHICS IN PUBLIC CONTRACTING: The Supplier certify that the execution of this agreement is made without collusion or fraud and that they have not offered or received any kickbacks or inducements from any other supplier, manufacturer or subcontractor in connection with this agreement and that they have not conferred on any public employee having official responsibility for this procurement transaction any payment, loan, subscription, advance, deposit of money, services or anything of more than nominal value, present or promised, unless consideration of substantially equal or greater value was exchanged.

C. DEBARMENT STATUS: By participating in this procurement, the vendor certifies that they are not currently debarred by the

Commonwealth of Virginia from submitting a response for the type of goods and/or services covered by this solicitation.

Vendor further certifies that they are not debarred from filling any order or accepting any resulting order, or that they are an agent of any person or entity that is currently debarred by the Commonwealth of Virginia

D. ACCEPTANCE AND TESTING: Final acceptance will be based on the successful delivery and performance by the contractor of its contractual commitments at the location(s) designated in the contract, including completed and successful acceptance testing as agreed to between the Commonwealth and the contractor. Acceptance will be in conformance with the functional, performance, operational, compatibility, acceptance testing criteria and other parameters and characteristics of the services, solution, software, hardware and deliverables, as authorized by the contract and such other parameters, characteristics, or performance standards that may be agreed upon in writing by the Commonwealth and the contractor.

E. DEFAULT: In case of failure to deliver goods or services in accordance with the contract terms and conditions, the

Commonwealth may terminate this agreement after verbal or written notice without penalty. Upon termination the Commonwealth may procure the goods or services contracted for from other sources and hold the contractor responsible for any resulting additional purchase and administrative costs. This remedy shall be in addition to any other remedies which the Commonwealth may have.

F. eVA BUSINESS-TO-GOVERNMENT VENDOR REGISTRATION, CONTRACTS, AND ORDERS: The eVA Internet electronic procurement solution, web site portal eva.virginia.gov, streamlines and automates government purchasing activities in the Commonwealth. The eVA portal is the gateway for vendors to conduct business with state agencies and public bodies. All vendors desiring to provide goods and/or services to the Commonwealth shall participate in the eVA Internet e-procurement solution by completing the free eVA Vendor Registration. All bidders or offerors must register in eVA and pay the Vendor Transaction Fees specified below; failure to register will result in the bid/proposal being rejected.

Vendor transaction fees are determined by the date the original purchase order is issued and the current fees are as follows:

a. For orders issued July 1, 2014, and after, the Vendor Transaction Fee is:

(i) DSBSD-certified Small Businesses: 1%, capped at $500 per order.

(ii) Businesses that are not DSBSD-certified Small Businesses: 1%, capped at $1,500 per order.

b. Refer to Special Term and Condition “eVA Orders and Contracts” to identify the number of purchase orders that will be issued as a result of this solicitation/contract with the eVA transaction fee specified above assessed for each order.

For orders issued prior to July 1, 2014, the vendor transaction fees can be found at eva.virginia.gov.

The specified vendor transaction fee will be invoiced, by the Commonwealth of Virginia Department of General Services, typically within 60 days of the order issue date. Any adjustments (increases/decreases) will be handled through purchase order changes.

G. AVAILABILITY OF FUNDS: It is understood and agreed between the parties herein that the agency shall be bound hereunder only to the extent that the legislature has appropriated funds that are legally available or may hereafter become legally available for the purpose of this agreement.

H. CIVILITY IN STATE WORKPLACES: The contractor shall take all reasonable steps to ensure that no individual, while performing work on behalf of the contractor or any subcontractor in connection with this agreement (each, a “Contract Worker”), shall engage in 1) harassment (including sexual harassment), bullying, cyber-bullying, or threatening or violent conduct, or 2) discriminatory behavior on the basis of race, sex, color, national origin, religious belief, sexual orientation, gender identity or expression, age, political affiliation, veteran status, or disability.

https://www.vita.virginia.gov/procurement/contracts/mandatory-contract-terms/

The contractor shall provide each Contract Worker with a copy of this Section and will require Contract Workers to participate in agency training on civility in the State workplace if contractor’s (and any subcontractor’s) regular mandatory training programs do not already encompass equivalent or greater expectations. Upon request, the contractor shall provide documentation that each Contract Worker has received such training.

For purposes of this Section, “State workplace” includes any location, permanent or temporary, where a Commonwealth employee performs any work-related duty or is representing his or her agency, as well as surrounding perimeters, parking lots, outside meeting locations, and means of travel to and from these locations. Communications are deemed to occur in a State workplace if the Contract Worker reasonably should know that the phone number, email, or other method of communication is associated with a State workplace or is associated with a person who is a State employee.

The Commonwealth of Virginia may require, at its sole discretion, the removal and replacement of any Contract Worker who the Commonwealth reasonably believes to have violated this Section.

This Section creates obligations solely on the part of the contractor. Employees or other third parties may benefit incidentally from this Section and from training materials or other communications distributed on this topic, but the Parties to this agreement intend this Section to be enforceable solely by the Commonwealth and not by employees or other third parties.

SPECIAL TERMS AND CONDITIONS

A. DEFINITION - COMPONENT: Software or deliverable delivered by contractor under the contract for the system or solution being provided.

B. DEFINITION - SOFTWARE: If software is authorized under the contract, means the programs and code provided by contractor under the contract as a component(s) of any deliverable or component of any solution, and any subsequent modification of such programs and code, excluding work product. For COTS (boxed) software, means the programs and code, and any subsequent releases, provided by contractor under the contract as described on contractor's US and International price lists in effect at time of contract award. For software maintenance contracts, software also includes the programs and code provided by contractor under the contact in the form of software updates.

C. DEFINITION - SOFTWARE PUBLISHER: The third-party licensor of the Software, other than the Supplier, provided by Supplier under this Contract.

D. DEFINITION - SOLUTION: The contractor’s contractually committed technical approach for solving a technology business objective and associated requirements as defined and authorized by the scope of the contract. Solution means all contractor and contractor’s third-party providers’ software or deliverable components making up the solution, including but not limited to software, hardware, configuration design, implementation, contractor- developed interfaces, services and work product.

E. DEFINITION - UPDATE: As applicable, any update, modification or new release of the software, system software, documentation or hardware that contractor makes generally available to its customers at no additional cost. Software updates include patches, fixes, upgrades, enhancements, improvements, or access mode, including without limitation additional capabilities to or otherwise improve the functionality, increase the speed, efficiency, or base operation of the software.

F. AUDIT: The contractor shall retain all books, records, and other documents relative to this contract for five (5) years after final payment, or until audited by the Commonwealth of Virginia, whichever is sooner. The agency, its authorized agents, and/or state auditors shall have full access to and the right to examine any of said materials during said period.

G. NO CONTACT POLICY: During the conduct of this solicitation, no Supplier shall initiate contact with any representative of

OAG concerning the conduct of this solicitation. Any contact with an OAG representative is prohibited and may result in disqualification from the procurement process.

H. SEVERABILITY: If any provision of the Scope of Work, General Terms and Conditions, Special Terms and Conditions and

Cloud Terms and Conditions be held invalid, such holding shall not affect the remaining provisions.

I. ASSIGNMENT OF CONTRACT: A contract shall not be assignable by the contractor in whole or in part without the written consent of OAG.

J. FORCE MAJEURE: No Party shall be responsible for failure to meet its obligations under this Contract if the failure arises from causes beyond the control and without the fault or negligence of the non-performing Party. If any performance date under this Contract is postponed or extended pursuant to this section for longer than 3O calendar days, VITA, by written notice given during the postponement or extension, may terminate Supplier’s right to render further performance after the effective date of termination without liability for that termination, and in addition an Authorized User may terminate any order or SOW affected by such postponement or delay.

K. INSURANCE: In addition to any other insurance requirements in the contract, Contractor agrees to provide:

Errors and omissions insurance coverage in the amount of $5,000,000 per occurrence.

L. SERVICE LEVEL AGREEMENT:

Contractor and OAG agree to meet within 30 calendar days of the Effective Date of this Contract to set forth the methodology and designated personnel of each party to provide, collect, monitor, and report the service levels data and mutually agreed-to incentives and remedies set forth in Appendix C. Contractor agrees to provide to OAG a report of its performance against the performance measures no less than once every six (6) months throughout the Contract Term. Contractor’s report must include a comparison of its performance measures against the agreed-to targets and, in the event of any shortfall by Contractor, proposed remediation measures. Contractor will report its performance for the Contract in aggregate. Any instances of Contractor non-compliance will be recorded in Contractor’s Contract file and shared with Contract stakeholders.

Contractor further agrees that any degradation or failure of Contractor’s performance obligations may result in failure to renew the Contract, termination for convenience of the Contract or termination for breach of the Contract. OAG will have all rights and remedies available at law.

M. CANCELLATION OF CONTRACT: The purchasing agency reserves the right to cancel and terminate any resulting contract, in part or in whole, without penalty, upon 60 days written notice to the contractor. In the event the initial contract period is for more than 12 months, the resulting contract may also be terminated by the contractor, without penalty, after the initial 12 months of the contract period upon 60 days written notice to the other party. Any contract cancellation notice shall not relieve the contractor of the obligation to deliver and/or perform on all outstanding orders issued prior to the effective date of cancellation.

N. eVA ORDERS AND CONTRACTS: The solicitation/contract will result in multiple purchase order(s) with the applicable eVA transaction fee assessed for each order.

O. RENEWAL OF CONTRACT: This contract may be renewed by the Commonwealth for two (2) successive one year periods under the terms and conditions of the original contract except as stated below. Price increases may be negotiated only at the time of renewal. Written notice of the Commonwealth’s intention to renew shall be given approximately 90 days prior to the expiration date of each contract period.

If during any subsequent renewal periods, the Commonwealth elects to exercise the option to renew the contract, the contract price(s) for the subsequent renewal period shall not exceed the contract price(s) of the previous renewal period increased/decreased by more than the percentage increase/decrease of the Miscellaneous personal services or Services by other medical professionals http://stats.bls.gov/news.release/cpi.toc.htm category of the CPI-U section of the Consumer Price Index of the United States Bureau of Labor Statistics for the latest twelve months for which statistics are available.

P. COMPLIANCE WITH THE FEDERAL LOBBYING ACT:

Supplier’s signed certification of compliance with 31 U.S.C.§ 1352 (entitled "Limitation on use of appropriated funds to influence certain Federal Contracting and financial transactions") or by the regulations issued from time to time thereunder is incorporated as Exhibit E to this Contract.

Q. ETHICS IN PUBLIC CONTRACTING:

By signing this Contract, Supplier warrants that its assent to this Contract is made without collusion or fraud, and that Supplier has not offered or received any kickbacks or inducements from any other bidder, supplier, manufacturer or subcontractor in connection with their proposal or the terms of this Contract. Further, Supplier warrants that it has not conferred any payment, loan, subscription, advance, deposit of money, services, or anything of more than nominal value, present or promised, on any public employee having official responsibility for this procurement transaction, unless consideration of substantially equal or greater value was exchanged. In addition, Supplier warrants that it will notify Agency if it becomes aware of a potential conflict of interest in the future.

R. SUPPLIER LIABILITY: Supplier agrees that it is fully responsible for all acts and omissions of all Supplier Personnel, including their negligence, gross negligence, or willful misconduct. To the extent permitted by law, Supplier’s indemnification obligations and liability will not exceed, in aggregate, twice the value of the Contract. For purposes of this Contract, “value of the Contract” means the cumulative obligations under this Contract, including any orders, SOWs, or Change Orders thereto.

The limitations on liability set forth in this section will not apply to liability arising from any combination of the following:

i. any intentional or willful misconduct, fraud, or recklessness of Supplier or any Supplier Personnel; or

ii. claims for bodily injury, including death, and damage to real property or tangible property resulting from the negligence of a Supplier or any Supplier Personnel.

S. TERM AND TERMINATION:

a. Contract Term: This Contract is effective and legally binding as of the Effective Date and, unless terminated as provided for in this section, will be effective and legally binding for a period of two (2) years (“Initial Term”).

Purchasing Agency, in its sole discretion, may renew this Contract for up to two (2) additional two (2) year renewal periods after the expiration of the Initial Term (collectively with the Initial Term, the “Contract Term”). Purchasing Agency will issue a written notification to the Supplier stating Purchasing Agency’s intention to exercise a renewal period no less than 30 calendar days prior to the expiration of any current term. In addition, performance of an order http://stats.bls.gov/news.release/cpi.toc.htm or SOW issued during the Contract Term may survive the expiration of the Contract Term, in which case all contractual terms and conditions required for the operation of such order or SOW will remain in full force and effect until all of Supplier's obligations pursuant to such order or SOW have met the final Acceptance criteria of Purchasing Agency.

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

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

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

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

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

In the event of a Termination for Breach, Supplier shall accept return of any Deliverable that was not accepted by Purchasing Agency, and Supplier shall refund any monies paid by Purchasing Agency for the unaccepted Deliverable. Supplier will bear all costs of de-installation and return of Deliverables.

f. Termination by Supplier: In no instance will termination by Supplier be considered.

g. Transition of Services: At the request of an Agency prior to or upon expiration or termination of this Contract, Supplier shall provide all assistance as Agency may reasonably require to transition the Supplier’s contractual obligations, or any portion thereof, to any other supplier with whom Agency contracts for provision of same. This Transition Period obligation may extend beyond expiration or termination of the Contract for a period of sixty (60) days. If this Contract includes Supplier's provision of licensed products, Supplier shall take no action to restrict or terminate the use of such licensed products after the date of expiration or termination of the Contract or during any Transition Period, or both. Agency shall pay for any additional maintenance or licensing fees during any Transition Period at the hourly rate or at a fee agreed upon by Supplier and Agency. Supplier shall provide all reasonable transition assistance requested by Agency to allow for the expired or terminated portion of the Services to continue without interruption or adverse effect, and to facilitate the orderly transfer of such Services to Agency. The transition assistance will be deemed by the parties to be governed by the terms and conditions of this Contract, except for those terms or conditions that do not reasonably apply to transition assistance. Further, any Transition Period will not affect Agency's rights in regards to any purchased Software perpetual licenses which are paid in full.

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

i. Transition Out Plan: Within three (3) months of the Effective Date, Supplier will develop and distribute to Agency a

Transition Out Plan. The Supplier will maintain the Transition Out Plan throughout the Contract Term, and update the Transition Out Plan as needed and subject to Agency’s approval.

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

The following Terms and Conditions are desirable. Offerors may propose alternative language; however, the basic contract form shall be retained. Offerors are requested to limit proposed changes, if any, to those of a substantive nature.

T. BEST AND FINAL OFFER (BAFO): At the conclusion of negotiations, the offeror(s) may be asked to submit in writing, a Best And Final Offer (BAFO). After the BAFO is submitted, no further negotiations shall be conducted with the offeror(s).

The offeror’s proposal will be rescored to combine and include the information contained in the BAFO. The decision to award will be based on the final evaluation including the BAFO.

U. BID ACCEPTANCE PERIOD: Any bid in response to this solicitation shall be valid for ( 90 ) days. At the end of the days the bid may be withdrawn at the written request of the bidder. If the bid is not withdrawn at that time it remains in effect until an award is made or the solicitation is canceled.

V. INDEMNIFICATION: Contractor agrees to indemnify the Commonwealth of Virginia, its officers, agents, and employees for any loss, liability, cost, or reasonable settlement cost incurred as a result of any claims, damages and actions of any kind or nature, whether at law or in equity, arising from or caused by the use of any materials, goods, or equipment of any kind or nature furnished by the contractor/any services of any kind or nature furnished by the contractor, provided that such liability is not attributable to the sole negligence of the using agency or to failure of the using agency to use the materials, goods, or equipment in the manner already and permanently described by the contractor on the materials, goods or equipment delivered.

W. PRIME CONTRACTOR RESPONSIBILITIES: The contractor shall be responsible for completely supervising and directing the work under this contract and all subcontractors that he may utilize, using his best skill and attention. Subcontractors who perform work under this contract shall be responsible to the prime contractor. The contractor agrees that he is as fully responsible for the acts and omissions of his subcontractors and of persons employed by them as he is for the acts and omissions of his own employees.

X. CONFIDENTIALITY OF PERSONALLY IDENTIFIABLE INFORMATION: The contractor assures that information and data obtained as to personal facts and circumstances related to patients or clients will be collected and held confidential, during and following the term of this agreement, and unless disclosure is required pursuant to court order, subpoena or other regulatory authority, will not be divulged without the individual’s and the agency’s written consent and only in accordance with federal law or the Code of Virginia. Contractors who utilize, access, or store personally identifiable information as part of the performance of a contract are required to safeguard this information and immediately notify the agency of any breach or suspected breach in the security of such information. Contractors shall allow the agency to both participate in the investigation of incidents and exercise control over decisions regarding external reporting. Contractors and their employees working on this project may be required to sign a confidentiality statement.

Y. STATE CORPORATION COMMISSION IDENTIFICATION NUMBER: Pursuant to Code of Virginia, §2.24311.2 subsection

B, a bidder or offeror organized or authorized to transact business in the Commonwealth pursuant to Title 13.1 or Title 50 is required to include in its bid or proposal the identification number issued to it by the State Corporation Commission (SCC).

Any bidder or offeror that is not required to be authorized to transact business in the Commonwealth as a foreign business entity under Title 13.1 or Title 50 or as otherwise required by law is required to include in its bid or proposal a statement describing why the bidder or offeror is not required to be so authorized. Indicate the above information on the SCC Form provided. Contractor agrees that the process by which compliance with Titles 13.1 and 50 is checked during the solicitation stage (including without limitation the SCC Form provided) is streamlined and not definitive, and the Commonwealth’s use and acceptance of such form, or its acceptance of Contractor’s statement describing why the bidder or offeror was not legally required to be authorized to transact business in the Commonwealth, shall not be conclusive of the issue and shall not be relied upon by the Contractor as demonstrating compliance.

Z. CERTIFICATION TESTING PERIOD - HARDWARE: Hardware ordered herein shall be subject to inspection and a 30-day testing period by the procuring agency. Contractor hardware which is found to not meet the specifications or other requirements of the purchase agreement may be rejected and returned to the vendor at no cost (including return transportation) by the procuring agency. Unless otherwise notified or mutually agreed, acceptance shall become effective at the end of the 30-day testing period. Such acceptance may not be conclusive of complete conformance in all respects to the contract specifications and other requirements, or the nonexistence of potential latent defects.

AA. COMPONENT WARRANTY: Contractor warrants that for any software or deliverable (“Component”) provided under the contract, the applicable warranty period shall be the period from written acceptance of the Component until final acceptance of the solution.

BB. CONFIDENTIALITY (Contractor): The contractor assures that information and data obtained as to personal facts and circumstances related to patients or clients will be collected and held confidential, during and following the term of this agreement, and will not be divulged without the individual’s and the agency’s written consent. Any information to be disclosed, except to the agency, must be in summary, statistical, or other form which does not identify particular individuals. Contractors and their employees working on this project will be required to sign the Confidentiality statement in this solicitation.

CC. EXCESSIVE DOWNTIME: Unless otherwise agreed to in a Service Level Agreement in the contract, all hardware, software, solutions or systems furnished under the contract shall be capable of continuous operation. Should the hardware, software, solution or system become inoperable for a period of more than 24 hours, the contractor agrees to pro-rate maintenance charges to account for each full day of inoperability. The period of inoperability shall commence upon initial notification by the procuring agency. Unless otherwise described in specific cure and remedy clauses in the contract, in the event the hardware, software, solution or system remains inoperable for more than consecutive calendar days, the contractor shall promptly replace the hardware, software, solution, solution component or system at no charge upon request of the procuring agency.

Such replacement shall be with new, unused product(s) of comparable quality, and must be installed and operational within days following the request for replacement.

DD. INTEROPERABILITY WARRANTY: Contractor warrants that each component, regardless of the origin of the component, delivered under the contract shall be interoperable with other components so as to meet or exceed the performance specified in the contract’s requirements.

EE. LIMITATION OF USE - SOFTWARE: The Commonwealth’s right to use software developed entirely at private expense may be limited by the contractor as stipulated in this contract. Notwithstanding any provision to the contrary however, the Commonwealth shall have at a minimum: unlimited use of the software on the equipment computers for which it is purchased;

use of the software on a secondary system for backup purposes should the primary system become unavailable, malfunction, or is otherwise rendered inoperable; use of the software at another Commonwealth site should the system be entirely transferred to that location; the right to allow access by Commonwealth third-party governmental or commercial agents solely for the business of the Commonwealth, the right to make a backup copy for safekeeping; the right to modify or combine the software with other programs or materials at the Commonwealth’s risk; and the right to reproduce any and all documentation provided such reproduction is for the sole use of the Commonwealth. These rights are perpetual and irrevocable; in the event of any actual or alleged breach by the Commonwealth, the contractor’s sole remedy shall be to pursue a monetary claim in accordance with § 2.2-4363 of the Code of Virginia.

FF. MAINTENANCE: Upon expiration of the specified warranty period and at the Commonwealth’s option, the contractor shall provide up to additional one-year periods of on-site maintenance (including labor, parts, and travel) at the prices set forth in the pricing schedule. Maintenance shall not include external electrical work, providing supplies, and adding or removing accessories not provided for in the contract. Maintenance shall also not include repairs of damage resulting from: acts of God, transportation between state locations, negligence by state personnel, or other causes not related to ordinary use in the production environment in which installed. Each successive year of maintenance may be ordered by the Commonwealth in writing at least days prior to expiration of the existing maintenance period.

GG. NEW HARDWARE: Unless otherwise expressly stated in this solicitation, any hardware furnished under the contract shall be new, unused hardware.

HH. NO SUBSEQUENT, UNILATERAL MODIFICATIONS OF TERMS BY CONTRACTOR (“SHRINK- WRAP”):

Notwithstanding any other provision or other unilateral license terms which may be issued by contractor after the Effective Date of the contract, for software or system software licensed under this contract, or the fact that such other agreement may be affixed to or accompany the software or system software upon delivery (“shrink wrap”), the terms and conditions set forth herein shall supersede and govern licensing and delivery of all software and system software hereunder.

II. OWNERSHIP: Contractor warrants that it has the right to perform and provide all contractual obligations and provide all needed services, software and hardware without violating or infringing any law, rule, regulation, copyright, patent, trade secret or other proprietary right of any third party.

JJ. OWNERSHIP OF INTELLECTUAL PROPERTY: All copyright and patent rights to all papers, reports, forms, materials, creations, or inventions created or developed in the performance of this contract shall become the sole property of the Commonwealth. On request, the contractor shall promptly provide an acknowledgment or assignment in a tangible form satisfactory to the Commonwealth to evidence the Commonwealth’s sole ownership of specifically identified intellectual property created or developed in the performance of the contract.

KK. QUALIFIED REPAIR PERSONNEL: All warranty or maintenance services to be performed on the items specified in this solicitation as well as any associated hardware or software shall be performed by qualified technicians properly authorized by the manufacturer to perform such services. The Commonwealth reserves the right to require proof of certification prior to award and at any time during the term of the contract.

LL. RELOCATION OF HARDWARE: Should it become necessary to move hardware covered by the contract to another location, the Commonwealth reserves the right to do so at its own expense. If contractor supervision is required, the Commonwealth will provide prior written notice of the move at least thirty (30) days in advance, in which case the contractor shall provide the required services and be reasonably compensated by the Commonwealth. Both the compensation to be paid and any adjustment to the maintenance terms resulting from the move shall be as mutually agreed between the parties. Regular maintenance charges shall be suspended on the day the hardware is dismantled and resume once the hardware is again certified ready for operational use.

MM. RENEWAL OF MAINTENANCE: Maintenance of any hardware, software, solution or system specified in the resultant contract may be renewed by the mutual written agreement of both parties for an additional one-year period(s), under the terms and conditions of the original contract except as noted herein. Price changes may be negotiated at time of renewal;

however, in no case shall the maintenance costs for a succeeding one-year period exceed the prior year’s contract price(s), increased or decreased by more than the percentage increase or decrease in the category of the CPI-W section of the US Bureau of Labor Statistics Consumer Price Index, for the latest twelve months for which statistics are available.

NN. REPAIR PARTS: In the event that the performance of maintenance services under the contract results in a need to replace defective parts or components, such items may only be replaced by new parts or components. In no instance shall the contractor be permitted to replace defective parts or components with refurbished, remanufactured, or surplus items without prior written authorization of the Commonwealth.

OO. SECURITY COMPLIANCE: Contractor agrees to comply with all provisions of the then-current Commonwealth of Virginia security procedures, published by the Virginia Information Technologies Agency (VITA) and which may be found at:

(https://www.vita.virginia.gov/it-governance/itrm-policies-standards/) or a successor URL(s), as are pertinent to contractor's operation. Contractor further agrees to comply with all provisions of the relevant Commonwealth agency’s then-current security procedures as are pertinent to contractor's operation and which have been supplied to contractor by the Commonwealth agency. Contractor shall also comply with all applicable federal, state and local laws and regulations. For any Commonwealth location, additional security procedures may include but not be limited to: background checks, records verification, photographing, and fingerprinting of contractor's employees or agents. Contractor may, at any time, be required to execute and complete, for each individual contractor employee or agent, additional forms which may include non-disclosure agreements to be signed by contractor's employees or agents acknowledging that the Commonwealth information with which such employees and agents come into contact while at the Commonwealth site is confidential and proprietary.

Any unauthorized release of proprietary or personal information by the contractor or an employee or agent of contractor shall constitute a breach of its obligations under this Section and the contract. Contractor shall immediately notify the Commonwealth of any Breach of Unencrypted and Unredacted Personal Information, as those terms are defined in Virginia Code §18.2-186.6, and other personal identifying information, such as insurance data or date of birth, provided by the Commonwealth to Contractor. Contractor shall provide the Commonwealth, including VITA, the opportunity to participate in the investigation of the Breach and to exercise control over reporting the unauthorized disclosure, to the extent permitted by law.

Contractor shall indemnify, defend, and hold the Commonwealth, VITA, their officers, directors, employees and agents harmless from and against any and all fines, penalties (whether criminal or civil), judgments, damages and assessments, including reasonable expenses suffered by, accrued against, or charged to or recoverable from the Commonwealth, VITA, their officers, directors, agents or employees, on account of the failure of Contractor to perform its obligations pursuant this Section.

PP. SOFTWARE EVOLUTION: Should contractor or software publisher merge or splinter the software previously provided to the Commonwealth, such action on the part of contractor or software publisher shall not in any way result in the Commonwealth being charged additional license or support fees in order to receive enhancements, releases, upgrade or support for the software. If contractor or software publisher reduces or replaces functionality contained in a licensed software product and provides the same or substantially similar functionality as or within a separate or renamed software product, then the Commonwealth shall be entitled to license such software product at no additional license or maintenance fee, and subject to the terms and conditions herein. If contractor or software publisher releases an option, future software product or other release that has substantially the same functionality as the software products provided under the contract, and software publisher and/or contractor ceases to provide maintenance for the older software product, then contractor shall offer the Commonwealth the option to exchange licenses for such replacement software product or function at no additional charge.

QQ. SOFTWARE UPGRADES: The Commonwealth shall be entitled to any and all upgraded versions of the software covered in the contract that becomes available from the contractor. The maximum charge for upgrade shall not exceed the total difference between the cost of the Commonwealth’s current version and the price the contractor sells or licenses the upgraded software under similar circumstances.

RR. SUPPORT SERVICE PERIOD (EXTENDED): Due to the criticality of the applications for which the hardware and/or software is purchased, unless otherwise agreed to in writing between the Commonwealth and contractor, the contractor shall provide 24 hours a day, 7 days a week, maintenance support, including state holidays. On-site response time shall be within hours following initial notification. All necessary repairs or corrections shall be completed within 24 - 48 hours of the initial notification by Commonwealth.

SS. SUPPORT SERVICE PERIOD (ROUTINE): Unless otherwise agreed to in writing between the Commonwealth and contractor, contractor shall provide 24 hour toll-free phone support with a hour return call response time. On-site maintenance support services shall carry an hour response time following initial notification and be available during the normal working hours of 8 A.M. to 5 P.M. Monday through Friday, excluding state holidays. All necessary repairs or corrections shall be completed within 24 - 48 hours of the initial notification.

TT. SUPPORT SERVICE REPORTS: Upon completion of any maintenance call, the contractor shall provide the agency with a signed service report that includes, at a minimum: a general statement as to the problem, action taken, any materials or parts furnished or used, and the number of hours required to complete the repairs.

UU. THIRD PARTY TERMS AND CONDITIONS: Should Supplier’s provision of the Licensed Services or any performance obligations under the Contract include third-party terms and conditions, the aforementioned referenced Commonwealth security policies standards and guidelines; i.e., SEC501 and SEC525, shall take precedence over any third party terms and conditions. For the purposes of statutory law as referenced and incorporated in the Contract, if there is any conflict with any third party terms, such statutory law shall govern.