Attachment_B_-_UC_Terms_and_Conditions.docx

These Terms and Conditions of Purchase (“Terms and Conditions”) govern the provision of the equipment, materials, and supplies (“Goods”) and/or services (“Services”) furnished by Supplier (together, the “Goods and/or Services”) under the UC Purchase Order (“PO”) or agreement entered into by UC and Supplier (which, together with these Terms and Conditions and any other documents incorporated by reference, constitute the “Agreement”). As used herein, the term "Supplier" includes Supplier and its sub-suppliers at any tier, and “UC” refers to The Regents of the University of California, a corporation described in California Constitution Art. IX, Sec. 9, on behalf of the UC locations identified in the Agreement (each a “UC Location”). UC and Supplier individually will be referred to as “Party” and collectively as “Parties.” Any terms not defined in these Terms and Conditions will have the meaning ascribed to such term in any of the other documents incorporated in and constituting the Agreement. Supplier accepts all of the Agreement’s terms and conditions either in writing, by shipping any portion of the Goods, or performing any portion of the Services.

If the Agreement refers to a proposal, then the terms of that proposal become part of the Agreement, but only to the extent the proposal terms specify the Goods and/or Services ordered, prices, and/or delivery, and to the extent that they are not inconsistent with the terms and conditions of the Agreement.

Any additional terms that Supplier includes in an order form or other document not incorporated into the Agreement, or in any click-through, or other end user terms and conditions or agreements provided with any Goods and/or Services hereunder (“Additional Terms”), will not be binding on UC, even if use of such Goods and/or Services requires an affirmative “acceptance” of such Additional Terms before access is permitted. Any such Additional Terms will be of no force and effect, and are rejected by UC in their entirety, unless UC expressly agrees to such Additional Terms in writing as provided for in these Terms and Conditions.

ARTICLE 1: TERM AND TERMINATION

1.1 Term. The term of the Agreement is as set forth in the Agreement.

1.2 Extension. The Agreement may be extended by written mutual agreement unless otherwise stated in the Agreement.

1.3 Non-appropriation of Funding. UC’s obligation to proceed is conditioned upon the appropriation of state, federal and other sources of funds whether controlled by UC ("Funding") or not. UC will have the right to terminate the Agreement without damage, penalty, cost, or further obligation in the event that through no action or inaction of UC, Funding is not appropriated or is withdrawn.

1.4 Termination for Convenience. UC may, by written notice stating the extent and effective date thereof, terminate the Agreement for convenience in whole or in part, at any time. The effective date of such termination shall be consistent with any requirements for providing notice specified in the Agreement, or immediate if no such terms are set forth in the Agreement. As specified in the termination notice, UC will pay Supplier as full compensation the pro rata Agreement price for performance through the later of the date that: (i) UC provided to Supplier in the notice of termination; or (ii) Supplier’s provision of Goods and/or Services will terminate.

1.5 Termination for Cause. UC may by written notice terminate the Agreement for Supplier’s breach of the Agreement, in whole or in part, at any time, if any of the following apply:

(a) Supplier refuses or fails to comply with the provisions of the Agreement or applicable law;

(b) Supplier fails to make progress as to endanger performance within five (5) business days;

(c) Supplier does not cure such failure within 15 business days;

Terms and Conditions of Purchase

Effective Date: 4/1/25

(d) Supplier fails to supply the Goods and/or Services in the manner or within the time specified in the written notice of termination or any written extension thereof; or

(e) Supplier does not comply with all applicable state and federal laws relating to providing Goods and Services to UC, including but not limited to laws and policies relating to wages, benefits, and fair labor practices.

In such event, UC may purchase or otherwise secure Goods and/or Services elsewhere and, except as otherwise provided herein, Supplier will be liable to UC for any excess costs UC incurs thereby.

1.6 Appendices. If any of the following appendices are incorporated into the Agreement, they will control in the event that the appendices conflict with the provisions of this Article: (i) UC’s Appendix – Data Security; (ii) Appendix – BAA; and/or (iii) Appendix – GDPR.

ARTICLE 2: PRICING AND INVOICING, AND LIENS

2.1 Pricing. Pricing is set forth in the Agreement, and the amount UC is charged and responsible for shall not exceed the amount specified in the Agreement unless UC has given prior written approval.

2.2 Invoicing. Unless otherwise stated in the Agreement, Supplier shall use the invoicing methods and payment settlement methods agreed to upon supplier enablement at the UC Location. UC will pay Supplier, following submission of acceptable invoices according to agreed-upon payment terms, for Goods and/or Services provided and accepted. Invoices must be itemized and must reference the Agreement or PO number. Supplier invoicing shall be subject to verification by UC and its authorized representatives; Supplier will provide supporting documentation and information upon request by UC. UC will not pay shipping, packaging, or handling expenses, unless specified in the Agreement. Unless otherwise provided, freight is to be Free on Board (“FOB”) destination on domestic shipments, and Delivered Duty Paid (“DDP”) for international shipments. Any reimbursement of Supplier’s expenses that UC agrees to will be reimbursed pursuant to UC’s Travel Policy, which may be found at http://www.ucop.edu/central-travel-management/resources/index.html. Where applicable, Supplier will pay all taxes imposed on Supplier in connection with its performance under the Agreement, including any federal, state, and local income, sales, use, excise and other taxes or assessments. Notwithstanding any other provision to the contrary, UC will not be responsible for any fees, interest or surcharges Supplier wishes to impose.

2.3 Liens. Supplier agrees upon request to furnish UC with a sworn statement setting forth the work performed, or material furnished by sub-suppliers and material men, and the amounts due and to become due to each. Prior to final payment, Supplier will, upon UC request, submit a complete set of vouchers showing the payments that have been made for such work performed or material furnished. Supplier will promptly notify UC in writing of any claims, demands, causes of action, liens or suits brought to its attention that arise out of the Agreement. UC may withhold final payment until Supplier delivers to UC a complete release of all liens arising out of the Agreement or complete set of receipts in full. In either case, UC may require Supplier to submit an affidavit that, as far as Supplier has knowledge or information, the receipts include all the labor and materials for which a lien could be filed. If any sub-supplier refuses to furnish a release or receipt in full, Supplier may furnish a bond satisfactory to UC to indemnify UC against any claim by lien or otherwise. If any lien or claim remains unsatisfied after all payments are made, Supplier will refund to UC all monies that UC may be compelled to pay in discharging such lien or claim, including all costs and reasonable attorneys' fees.

ARTICLE 3: INSPECTION

The Goods and/or Services furnished will be as specified in the Agreement, free from all defects in Supplier’s performance, design, skill, and materials, and will be subject to inspection and testing by UC unless otherwise provided in the Agreement. If, prior to final acceptance, any Goods and/or Services are found to be incomplete, or not as specified, UC may reject them, require Supplier to correct them at the sole cost of Supplier, or require provision of such Goods and/or Services at a fair and reasonable reduction in price. Supplier bears all risks as to rejected Goods and/or Services. In addition to any costs for which Supplier may become liable to UC under other provisions of the Agreement, Supplier will reimburse UC for all transportation costs, other related costs incurred, or payments to Supplier in accordance with the terms of the Agreement for unaccepted Goods and/or Services and materials and supplies incidental thereto. Notwithstanding final acceptance or payment, Supplier will be liable for latent defects, fraud, or such gross mistakes as amount to fraud.

ARTICLE 4: INTELLECTUAL PROPERTY, COPYRIGHT, PATENTS, AND DATA RIGHTS

4.1 Rights to Deliverables.

(a) Ownership of Deliverables. UC owns any deliverables due to UC as set forth in the Agreement, including intellectual property rights therein (hereinafter the “Deliverables”), unless UC agrees in writing that the Goods and/or Services do not involve work made for hire. The Deliverables will be considered "work made for hire" under U.S. copyright law, and UC will own all right, title, and interest to and in such Deliverables including, but not limited to, any and all copyrights or trademarks. In the event that it is determined that UC is not the owner of such Deliverables under the "work made for hire" doctrine of U.S. copyright law, Supplier hereby irrevocably assigns to UC all right, title, and interest to and in such Deliverables and any copyrights or trademarks thereto.

(b) Pre-Existing Materials. In the event Supplier uses any pre-existing patented, copyrightable or trademarked images, writings, or other proprietary materials of Supplier or any third party (hereinafter "Pre-Existing Materials") in the performance of the Agreement, Supplier hereby grants to UC, and will secure for UC from any third-party owner, a non-exclusive, royalty-free, irrevocable, perpetual, paid-up, worldwide license (with the right to sublicense) to make, have made, copy, modify, make derivative works of, use, perform, display publicly, sell, and otherwise distribute such Pre-Existing Materials in connection with the Deliverables.

(c) Inventions and Discoveries. Whenever Supplier makes or conceives of any invention or discovery in the direct performance of providing Goods and/or Services to UC under the Agreement, Supplier will promptly furnish UC with complete information with respect thereto. In addition, whenever Supplier makes or conceives of any invention or discovery that incorporates UC Institutional Information (collectively “UC Inventions”), Supplier will promptly furnish UC with complete information with respect thereto. UC will have the sole discretion to make any and all decisions regarding the filing, management, and disposition of UC Inventions, including any patent applications and patent rights covering UC Inventions. As used herein, “Institutional Information” means any information or data created, received, and/or collected by UC or on its behalf, including but not limited to application logs, metadata, and data derived from such data.

(d) Supplier Assignment. Supplier hereby assigns to UC all right, title and interest in any intellectual property rights to UC Inventions as well as all right, title and interest in tangible research products embodying UC Inventions. Supplier agrees to promptly execute any documentation needed for such assignment and to ensure that Supplier’s employees do the same as necessary to perfect title of UC Inventions for UC.

4.2 General. Should the Goods, Services, Pre-Existing Materials, and/or Deliverables become, or in Supplier’s opinion be likely to become, the subject of a claim of infringement of any patent, copyright, trademark, trade name, trade secret, or other proprietary or contractual right of any third party, Supplier will provide written notice to UC of the circumstances giving rise to such claim or likely claim. In the event that UC receives notice of a claim of infringement, is made a party to, or is threatened with being made a party to any claim of infringement related to the Goods and/or Services, UC will provide Supplier with notice of such claim or threat. Following receipt of such notice, Supplier will either (at Supplier’s sole election): (i) procure for UC the right to continue to use the affected portion of the Goods and/or Services; (ii) replace or otherwise modify the affected portion of the Goods and/or Services to make them non-infringing; or (iii) obtain a reasonable substitute product for the affected portion of the Goods and/or Services. Any replacement, modification or substitution under this paragraph shall not affect a material change in the Goods and/or Services’ functionality. If none of the foregoing options is reasonably acceptable to UC, UC will have the right to terminate the Agreement without damage, penalty, cost, or further obligation.

4.3 UC Rights to Institutional Information. Institutional Information shall belong exclusively to UC and, unless expressly provided, this Agreement shall not be construed as conferring on Supplier any patent, copyright, trademark, license right or trade secret owned or obtained by UC. Any right for Supplier to use Institutional Information is solely provided on a non-exclusive basis, and only to the extent required for Supplier to provide the Goods or Services under the Agreement.

ARTICLE 5: LIABILITY FOR UC MATERIALS

To the extent UC furnishes Supplier with, or Supplier otherwise uses, any UC materials in connection with the Agreement (“UC Materials”), Supplier assumes complete liability for such UC Materials. Supplier agrees to pay for any UC Materials Supplier damages or otherwise is not able to account for to UC's reasonable satisfaction. Unless otherwise expressly provided in writing by UC, Supplier shall not obtain title to any UC Materials. For clarity, UC Materials may include Institutional Information. Supplier will use UC Materials for the limited purpose of performing hereunder. Supplier will not transfer UC Materials, or parts thereof, to any third party without express written consent of UC. UC MAKES NO REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY OR FITNESS OF THE UC MATERIALS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, NOR ANY OTHER WARRANTY OF ANY KIND. No other right or license to the UC Materials is granted to Supplier or implied as a result of transferring UC Materials hereunder. In no event will Supplier use the UC Materials in human subjects.

ARTICLE 6: USE OF UC NAME AND TRADEMARKS

Supplier will not use the UC name, abbreviation of the UC name, trade names, and/or trademarks (i.e., logos and seals) or any derivation thereof (collectively, “UC Name”), in any form or manner in advertisements, reports, or other information released to the public, or place a UC Name on any consumer goods, products, or services for sale or distribution to the public, without UC’s prior written approval. Supplier agrees to comply at all times with California Education Code Section 92000.

If the Goods will bear the UC Name, Supplier must hold a valid license from UC and comply with UC’s Trademark Licensing Code of Conduct policy, available at http://policy.ucop.edu/doc/3000130/TrademarkLicensing.

ARTICLE 7: PROHIBITION ON UNAUTHORIZED USE OR DISCLOSURE OF INSTITUTIONAL INFORMATION

7.1 Prohibition on Access, Use and Disclosure of Institutional Information. Supplier will not access, use, or disclose Institutional Information, other than to carry out the purposes for which UC disclosed the Institutional Information to Supplier, except as required by applicable law, or as otherwise authorized in writing by UC prior to Supplier’s disclosure. Supplier shall have the limited right to disclose Institutional Information to Supplier’s employees provided that: (i) Supplier shall disclose only such Institutional Information as necessary for the Supplier to perform its obligations under this Agreement; and (ii) Supplier informs such employees of the obligations governing the access, use and disclosure of Institutional Information prior to Supplier’s disclosure. Supplier shall be liable for any breach of this Agreement by its employees. For avoidance of doubt, this provision prohibits Supplier from using for its own benefit Institutional Information and any information derived therefrom. The sale of Institutional Information is expressly prohibited. For the avoidance of doubt, Supplier use of artificial intelligence (AI) systems with UC Institutional Information is not permitted except with prior written consent from the Chancellor or delegee for the applicable UC Location(s) or as explicitly set forth in the SOW. “AI system” has the meaning provided in NIST AI RMF 1.0, as may be amended from time to time.

7.2 Compliance with Applicable Laws and Industry Best Practices. Supplier agrees to comply with all applicable state, federal, and foreign laws, as well as industry best practices, governing the collection, access, use, disclosure, safeguarding, and destruction of Institutional Information. Supplier agrees to protect the privacy and security of Institutional Information according to all applicable laws and industry best practices. Further, Supplier agrees to protect Institutional Information at least as rigorously as it protects its own information and in no case less than reasonable care.

7.3 Confidential Institutional Information. Supplier agrees to hold UC’s Confidential Institutional Information, and any information derived therefrom, in strict confidence. Confidential Institutional Information shall be defined as any Institutional Information that is:

(a) marked as “Confidential” at the time of disclosure;

(b) if disclosed orally, identified at the time of such oral disclosure as confidential, and reduced to writing as “Confidential” within thirty (30) days of such oral disclosure; or

(c) if not marked as “Confidential,” information that would be considered by a reasonable person in the relevant field to be confidential given its content and the circumstances of its disclosure.

As applicable to Supplier’s Services, Confidential Institutional Information includes any information that identifies or is capable of identifying a specific individual.

7.4 Exceptions. Information will not be considered Confidential Institutional Information to the extent:

(a) Supplier can demonstrate by written records it was lawfully known to Supplier prior to the effective date of the Agreement and not subject to any other confidentiality agreement in effect between Supplier and UC;

(b) it is currently in, or in the future enters, the public domain other than through a breach of the Agreement or through other acts or omissions of Supplier;

(c) it is obtained lawfully from a third party; or

(d) it is disclosed under the California Public Records Act or valid legal process.

7.5 Required Disclosures of Institutional Information. If Supplier is required by a court of competent jurisdiction, or a governmental administrative body with jurisdiction, to disclose Institutional Information, Supplier will notify UC in writing immediately upon receiving notice of such requirement and prior to any such disclosure (unless Supplier is prohibited by law from doing so), to give UC an opportunity to oppose or otherwise respond to such disclosure. To the extent Supplier is still required to disclose Institutional Information, Supplier will furnish only that portion that is legally required and will exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be afforded to any Confidential Institutional Information.

7.6 No Offshoring. Supplier’s transmission, transportation or storage of Institutional Information outside the United States, or access of Institutional Information from outside the United States, is prohibited except with prior written authorization by UC.

7.7 Conflict in Terms. UC’s Appendix – Data Security, Appendix – BAA, and/or Appendix GDPR will control in the event one or more appendices is incorporated into the Agreement and conflicts with the provisions of this Article.

7.8 Injunctive Relief. Supplier acknowledges that remedies at law would be inadequate to protect UC against any actual or threatened breach of this Section by Supplier, and, without prejudice to any other rights and remedies otherwise available to UC, Supplier agrees to the granting of injunctive relief in UC’s favor without proof of actual damages.

7.9 Third-Party Analytics. Supplier agrees not to use any third-party analytics services, software, or tools of any kind (including but not limited to any user analytics or website analytics tool that shares Institutional Information with a third party, such as Google Analytics or Meta Pixel) in connection with the performance of its obligations under this Agreement without first obtaining the express written consent of the UC Location Chancellor or their delegee. In the event Supplier wishes to use any third- party analytics services, software, or tools, Supplier must first obtain such express written consent, which consent may be withheld in UC’s sole discretion. Supplier acknowledges and agrees that any use of third-party analytics services, software, or tools without such express written consent shall constitute a material breach of this Agreement that is incapable of cure by Supplier and, therefore, may result in the termination of the Agreement by UC, at UC’s sole election.

ARTICLE 8: FEDERAL FUNDS

8.1 Supplier certifies and represents its compliance with the following clauses, as applicable. Supplier shall promptly notify UC of any change of status with regard to these certifications and representations. These certifications and representations are material statements upon which UC will rely.

(a) Commercial Transactions. For commercial transactions involving funds on a federal contract (federal awards governed by the FAR), the following provisions apply, as applicable:

(i) FAR 52.203-13, Contractor Code of Business Ethics and Conduct;

(ii) FAR 52.203-17, Contractor Employee Whistleblower Rights and Requirement to Inform Employees of Whistleblower Rights;

(iii) FAR 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements;

(iv) FAR 52.204-27, Prohibition on a ByteDance Covered Application;

(i) FAR 52.219-8, Utilization of Small Business Concerns;

(ii) FAR 52.222-21, Prohibition of Segregated Facilities;

(iii) FAR 52.222-26, Equal Opportunity;

(iv) FAR 52.222-35, Equal Opportunity for Veterans;

(v) FAR 52.222-36, Equal Opportunity for Workers with Disabilities;

(vi) FAR 52.222-37, Employment Reports on Veterans;

(vii) FAR 52.222-40, Notification of Employee Rights Under the National Labor Relations Act;

(viii) FAR 52.222-41, Service Contract Labor Standards;

(ix) FAR 52.222-50, Combating Trafficking in Persons;

(x) FAR 52.222-51, Exemption from Application of the Service Contract Labor Standards to Contracts for Maintenance, Calibration, or Repair of Certain Equipment -Requirements;

(xi) FAR 52.222-53, Exemption from Application of the Service Contract Labor Standards to Contracts for Certain Services -Requirements;

(xii) FAR 52.222-54, Employment Eligibility Verification;

(xiii) FAR 52.222-55, Minimum Wages Under Executive Order 13658;

(xiv) FAR 52.222-62, Paid Sick Leave under Executive Order 13706;

(xv) FAR 52.224-3, Privacy Training;

(xvi) FAR 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations;

(xvii) FAR 52.233-1, Disputes; and

(xviii) FAR 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels.

(b) Non-Commercial Transactions. For non-commercial transactions involving funds on a federal contract, the UC Appendix titled ‘Federal Government Contracts Special Terms and Conditions (Non-Commercial Items or Services)’ and located at https://procurement.ucop.edu/resources/p- policies is hereby incorporated herein by reference.

(c) Federal Grants or Cooperative Agreements. For transactions involving funds on a federal grant or cooperative agreement (federal awards governed by CFR Title 2, Subtitle A, Chapter II, Part 200) the following provisions apply, as applicable:

(i) Rights to Inventions. If Supplier is a small business firm or nonprofit organization, and is providing experimental, development, or research work under this transaction, Supplier must comply with the requirements of 3 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts, and Cooperative Agreements.”

(ii) Clean Air Act. Supplier agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. § 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. § 1251-1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).

(iii) Byrd Anti-Lobbying. Supplier certifies that it will not, and has not, used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. § 1352.

(iv) Procurement of Recovered Materials. If Supplier is a state agency or agency of a political subdivision of a state, Supplier complies with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act.

(v) Domestic Preferences for Procurements. As appropriate and to the extent consistent with law, Supplier should, to the greatest extent practicable under a federal award, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). ‘‘Produced in the United States’’ means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States. ‘‘Manufactured products’’ means items and construction materials composed in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.

(d) Definitions. In these provisions, the term "contractor" as used therein will refer to Supplier, and the terms “Government” or “Contracting Officer” as used therein will refer to UC. Where a purchase of items is for fulfillment of a specific U.S. Government prime or subcontract, additional information and/or terms and conditions may be included in an attached supplement. By submitting an invoice to UC, Supplier is representing to UC that, at the time of submission:

(i) Debarment, Suspension. Neither Supplier nor its principals are presently debarred, suspended, or proposed for debarment by the U.S. government (see FAR 52.209-6);

(ii) Compliance Reports. Supplier has filed all compliance reports required by the Equal Opportunity clause (see FAR 52.222-22); and

(iii) Supplier Classifications. Any Supplier representations to UC about U.S. Small Business Administration or state and local classifications, including but not limited to size standards, ownership, and control, are accurate and complete.

(iv) Byrd Anti-Lobbying. Supplier certifies that it will not, and has not, used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352.

ARTICLE 9: INDEMNITY AND LIABILITY

9.1 Indemnity. To the fullest extent permitted by law, Supplier will defend, indemnify, and hold harmless UC, its officers, employees, and agents, from and against all claims, losses, expenses (including, without limitation, reasonable attorneys' fees and costs), damages, and liabilities of any kind (“Claims”) resulting from or arising out of the Agreement, provided such Claims are due or claimed to be due to the acts or omissions of Supplier, its officers, employees, agents, sub-suppliers, or anyone directly or indirectly employed by Supplier, or any person or persons under Supplier's direction and control. UC agrees to provide Supplier with prompt notice of any such Claim and to permit Supplier to defend any Claim, and that UC will cooperate fully in such defense. UC retains the right to participate in the defense against any such Claim, and the right to consent to any settlement, which consent will not unreasonably be withheld.

9.2 Data Breach Costs. Supplier shall reimburse or otherwise be responsible for any costs, fines or penalties imposed against UC as a result of Supplier’s Breach of Institutional Information and/or failure to cooperate with UC’s response to such Breach. As used herein, “Breach” means:

(a) Any disclosure of Institutional Information to an unauthorized party or in an unlawful manner;

(b) Unauthorized or unlawful acquisition of information that compromises the security, confidentiality, or integrity of Institutional Information and/or IT Resources; or

(c) The acquisition, access, use, or disclosure of Protected Health Information or medical information in a manner not permitted under the Health Insurance Portability and Accountability Act (HIPAA) or California law.

“IT Resources” means IT infrastructure, cloud services, software, and/or hardware with computing and/or networking capability that is Supplier owned/managed, or UC-owned, or a personally owned device that stores Institutional Information, is connected to UC systems, is connected to UC networks, or is used for UC business.

ARTICLE 10: INSURANCE

10.1 Supplier Insurance. Supplier, at its sole cost and expense, will insure its activities in connection with providing the Goods and/or Services and obtain, keep in force, and maintain the following insurance with the minimum limits set forth below, unless UC specifies otherwise:

(a) Commercial Form General Liability Insurance. (contractual liability included) with limits as follows:

(i) Each Occurrence $ 1,000,000

(ii) Products/Completed Operations Aggregate $ 2,000,000

(iii) Personal and Advertising Injury $ 1,000,000

(iv) General Aggregate $ 2,000,000

(b) Business Automobile Liability Insurance. Business Automobile Liability Insurance for owned, scheduled, non-owned, or hired automobiles with a combined single limit of not less than one million dollars ($1,000,000) per occurrence. (Required only if Supplier drives on UC premises or transports UC employees, officers, invitees, or agents in the course of supplying the Goods and/or Services to UC.)

(c) Professional Liability Insurance. If applicable, Professional Liability Insurance with a limit of two million dollars ($2,000,000) per occurrence or claim with an aggregate of not less than two million dollars ($2,000,000). If this insurance is written on a claims-made form, it will continue for three years following termination of the Agreement. The insurance will have a retroactive date of placement prior to or coinciding with the effective date of the Agreement.

(d) Workers’ Compensation. Workers' Compensation as required by applicable state law and Employer’s Liability with limits of one million dollars ($1,000,000) per occurrence.

10.2 Fidelity Bond or Crime Coverage. If applicable, Supplier Fidelity Bond or Crime coverage for the dishonest acts of its employees in a minimum amount of one million dollars ($1,000,000). Supplier will endorse such policy to include a “Regents of the University of California Coverage” or “Joint Payee Coverage” endorsement. UC and, if so requested, UC’s officers, employees, agents, and sub- suppliers will be named as "Loss Payee, as Their Interest May Appear” in such Fidelity Bond.

10.3 Appendix – Data Security (DS). In the event Appendix - Data Security (DS) applies to this Agreement, Supplier, at its sole cost and expense, will obtain, keep in force, and maintain one or more insurance policies that provide coverage for technology, professional liability, data protection, and/or cyber liability. Typically referred to as Privacy, Technology and Data Security Liability, Cyber Liability, or Technology Professional Liability insurance, it will cover liabilities for financial loss due to the acts, omissions, or intentional misconduct of Supplier, its officers, employees, agents, sub-suppliers, or anyone directly or indirectly employed by Supplier, or any person or persons under Supplier’s direction and control, in connection with the performance of this Agreement, as well as all Supplier costs, including damages it is obligated to pay UC or any third party, that are associated with any confirmed or suspected Breach or compromise of Institutional Information. In some cases, Professional Liability policies may include some coverage for data breaches or loss of Institutional Information. Regardless of the type of policy(ies) in place, such coverage will include without limitation:

(a) costs to notify parties whose data were lost or compromised;

(b) costs to provide credit monitoring and credit restoration services to parties whose data were lost or compromised;

(c) costs associated with third party claims arising from the confirmed or suspected Breach or loss of Institutional Information, including litigation costs and settlement costs;

(d) any investigation, enforcement, fines and penalties, or similar miscellaneous costs; and

(e) any payment made to a third party as a result of extortion related to a confirmed or suspected Breach.

The following insurance coverage is based on the highest Protection Level Classification of Institutional Information identified in Exhibit 1 to Appendix - Data Security (DS):

(i) P1 - This insurance policy must have minimum limits of $500,000 each occurrence and $500,000 in the aggregate.

(ii) P2 - This insurance policy must have minimum limits of $1,000,000 each occurrence and $1,000,000 in the aggregate.

(iii) P3 and P4, less than 70,000 records - this insurance policy must have minimum limits of $5,000,000 each occurrence and $5,000,000 in the aggregate.

(iv) P3 and P4, 70,000 or more records - this insurance policy must have minimum limits of $10,000,000 each occurrence and $10,000,000 in the aggregate.

Protection Level Classifications are defined in the UC Systemwide Information Security Classification of Information and IT Resources: https://security.ucop.edu/policies/institutional-information-and-it- resource-classification.html

10.4 Additional Requirements. Additional other insurance in such amounts as may be reasonably required by UC against other insurable risks relating to performance. If the above insurance is written on a claims-made form, it will continue for three (3) years following termination of the Agreement. The insurance will have a retroactive date of placement prior to or coinciding with the effective date of the Agreement. If the above insurance coverage is modified, changed, or cancelled, Supplier will provide UC with not less than fifteen (15) days’ advance written notice of such modification, change, or cancellation, and will promptly obtain replacement coverage that complies with this Article.

10.5 UC Additional Insured; Certificates of Insurance. The coverages referred to under 10.1(a) (Commercial Form General Liability Insurance) and 10.1(b) (Business Automobile Liability Insurance) of this Article must include UC as an additional insured. It is understood that the coverage and limits of this Article will not in any way limit Supplier’s liability. Supplier will furnish UC with certificates of insurance (and the relevant endorsement pages) evidencing compliance with all requirements prior to commencing work under the Agreement. Such certificates (and any endorsement pages as applicable) will:

(a) Indicate that The Regents of the University of California has been endorsed as an additional insured for the coverage referred to under 10.1(a) (Commercial Form General Liability Insurance) and 10.1(b) (Business Automobile Liability Insurance) of this Article.

(b) Include a provision that the coverage will be primary and will not participate with or be excess over any valid and collectible insurance or program of self-insurance carried or maintained by UC.

ARTICLE 11: ADDITIONAL WARRANTIES

Supplier Warranties. Failure to comply with any of the warranties in the Agreement will constitute a material breach of the Agreement. In addition to any warranties set forth elsewhere herein, Supplier represents, warrants and covenants:

11.1 Supplier is not, and will not become during the Agreement term, subject to any restrictions that might restrict or prohibit Supplier from performing the Services or providing the Goods ordered hereunder.

11.2 Supplier will comply with all applicable laws, rules, and regulations in performing Supplier’s obligations hereunder, including but not limited to procuring all necessary permits or licenses.

11.3 The Goods and/or Services shall be rendered with promptness and diligence and shall be executed in a skilled manner by competent personnel, in accordance with prevailing industry standards.

11.4 Supplier has developed a business interruption and disaster recovery program and is executing such program to assess and reduce the extent to which Supplier’s systems may be susceptible to errors or failures in various crisis or force majeure situations.

11.5 Water and Air Pollution. As applicable, Supplier complies with the requirements in UC Business and Finance Bulletin BUS-56 (Materiel Management; Purchases from Entities Violating State or Federal Water or Air Pollution Laws). Consistent with California Government Code § 4477, UC is prohibited from contracting with entities in violation of Federal or State water or air pollution laws.

11.6 Accessibility. As applicable to the Goods and/or Services provided under the Agreement:

(a) Both Supplier and Supplier’s Goods and/or Services shall comply with all California and federal disability laws and regulations applicable to UC, including, but not limited to, the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973, as they may be amended.

(b) Supplier warrants that any Goods and/or Services that include, contain, or consist of Information Technology, including any changes, modifications, or updates made to such Goods and/or Services and are provided under this Agreement shall conform to Web Content Accessibility Guidelines 2.1 or newer, at Level AA success criteria or above. The term Information Technology shall be construed broadly in favor of expansive coverage, and shall include web content (e.g., websites, web applications, e-mail systems, online surveys, social media, webcasting and all digital content therein), mobile applications, software as a service product, learning management systems and content, e-courseware, educational technologies, electronic textbooks, and recorded broadcasting technologies. The failure of Supplier’s Goods and/or Services that contain or consist of Information Technology to conform to, at a minimum, Web Content Accessibility Guidelines 2.1, Level AA success criteria at any time during the duration of this Agreement, as it may be amended or extended, shall be deemed a material breach of this Agreement.

(c) Any of Supplier’s Goods and/or Services consisting of medical diagnostic equipment shall conform to the Standards for Accessible Medical Diagnostic Equipment sections M101.1 through M307.4 where applicable.

(d) Supplier agrees to respond to and make all reasonable efforts to promptly resolve concerns regarding the accessibility of its Goods and/or Services within a reasonable and mutually agreeable timeline. In determining this remediation timeline, Supplier and UC shall in good faith consider any relevant factors, including but not limited to, UC’s liability exposure (e.g., public facing Goods and/or Services versus Goods and/or Services used only by a handful of individuals), the scope of alleged accessibility issues, and the degree to which the lack of full conformance to the Web Content Accessibility Guidelines 2.1, Level AA affects the ability of individuals with disabilities to use the Goods and/or Services.

(e) To the fullest extent permitted by law, Supplier will defend, indemnify, and hold harmless UC, its officers, employees, and agents, from and against all claims, losses, expenses (including, without limitation, reasonable attorneys' fees and costs), damages, and liabilities of any kind (“Covered Claims”) alleging disability discrimination or relating to the accessibility of Supplier’s Goods and/or Services to persons with disabilities, provided such Covered Claims are due or claimed to be due to the acts or omissions of Supplier, its officers, employees, agents, sub-suppliers who provide Goods and/or Services under this Agreement, or anyone directly or indirectly employed by Supplier, or any person or persons under Supplier's direction and control. UC agrees to provide Supplier with prompt notice of any such Covered Claim and to permit Supplier to defend any Covered Claim, and that UC will cooperate fully in such defense. UC retains the right to participate in the defense against any such Covered Claim, and the right to consent to any settlement, which consent will not unreasonably be withheld.

(f) Any accessibility review of Supplier’s Goods and/or Services by UC shall not relieve Supplier of its obligations in this Article 11.6.

11.7 California Child Abuse and Neglect Reporting Act ("CANRA"). Where applicable, Supplier complies with the California Child Abuse and Neglect Reporting Act ("CANRA").

11.8 Debarment, Suspension, U.S. Government Restricted Party Lists. Supplier is not on the U.S. government’s Denied Parties List, the Unverified List, the Entities List, the Specially Designated Nationals and Blocked Parties List, and neither it nor its employees and agents is now nor has ever been debarred, suspended, excluded, sanctioned, or otherwise declared ineligible for award of federal contracts or participation in any government sponsored program, including any federal or state health care program (e.g., Medicare, Medi-Cal), and no proceedings, investigations, or inquiries are currently pending or threatened by any federal or state agency as a result of which Supplier or its employees or agents could be excluded, sanctioned, debarred or otherwise made ineligible from participation in any government sponsored program or sanctioned for any violation of any rule or regulation of such programs (excluding denial of reimbursement or payment of any specific claim or claims). Supplier will immediately provide written notice to UC of any such pending or threatened investigation or inquiry upon becoming aware of such investigation or inquiry. Any breach of this Section shall give UC the right to terminate the Agreement immediately for cause.

11.9 Equal Opportunity. Where applicable, Supplier will comply with 41 CFR §§ 60-1.4(a), 60- 300.5(a) and 60-741.5(a), incorporated by reference with this statement: “This contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.” With respect to activities occurring in the State of California, Supplier agrees to adhere to the California Fair Employment and Housing Act. Supplier will provide UC on request a breakdown of its labor force by groups as specified by UC, and Supplier will discuss with UC its policies and practices relating to its affirmative action programs and/or anti-discrimination programs. Supplier will not maintain or provide facilities for employees at any establishment under its control that are segregated on a basis prohibited by federal law. Separate or single-user restrooms and necessary dressing or sleeping areas must be provided, however, to ensure privacy.

11.10 Covered Telecommunications Equipment. The Goods and/or Services will not require Supplier to use for UC, or provide to UC to use, "covered telecommunications equipment or services" as a substantial or essential component of any system, or as critical technology as part of any system, within the meaning of Federal Acquisition Regulation (“FAR”) Section 52.204-25. Supplier will provide “Timely Notice” to UC of any changes to the statements, confirmations or representations made in its proposal response or in any information provided as part of the contract award process, including in particular any changes to the certifications or representations made regarding NDAA Section 889. Timely Notice means that Supplier will notify UC in writing within three (3) business days of any changes to the representations or confirmations made in relation to NDAA Section 889. Notice shall include the representations or confirmations made and the changes to those representations or confirmations. The notice shall be provided by a Supplier representative authorized to bind the Supplier.

11.11 Cooperation. Supplier and its sub-suppliers, if any, will cooperate with UC and other suppliers and will not hinder, delay, or interfere with the progress of their work.

11.12 Conflict of Interest. Supplier will not be in a reporting relationship to a UC employee who is a near relative, nor will a near relative be in a decision-making position with respect to Supplier. Supplier affirms that, to the best of Supplier’s knowledge, no UC employee who has participated in UC’s decision-making concerning the Agreement has an “economic interest” in the Agreement or Supplier. A UC employee’s “economic interest” means: an investment worth $2,000 or more in Supplier or its affiliate;

(a) a position as director, officer, partner, trustee, employee or manager of Supplier or its affiliate;

(b) receipt during the past 12 months of $500 in income or $440 in gifts from Supplier or its affiliate; or

(c) a personal financial benefit from the Agreement in the amount of $250 or more.

In the event of a change in these economic interests, Supplier will provide written notice to UC within thirty (30) days after such change, noting such changes.

11.13 Outsourcing (Public Contract Code section 12147). If the Agreement will displace UC employees, Supplier will not use any funds paid to Supplier under this Agreement to train workers who are located outside of the United States, or plan to relocate outside the United States as part of the Agreement. If displacing UC employees, Supplier will ensure that no work will be performed under the Agreement with workers outside the United States, except as described in Supplier’s bid. If Supplier or its sub-supplier performs the Agreement with workers outside the United States during the Agreement term and Supplier did not describe such work in its bid, Supplier acknowledges and agrees that: (i) UC may, without further obligation, terminate the Agreement for noncompliance; and (ii) Supplier will forfeit to UC the amount UC paid for the percentage of work that was performed with workers outside the United States and not described in Supplier’s bid.

ARTICLE 12: PREMISES WHERE SERVICES ARE PROVIDED

The following provisions apply to the extent Services are performed on UC Premises (defined as any location owned or leased by UC):

12.1. Cleaning Up. Supplier will keep UC Premises where the Services are performed and adjoining premises free from accumulations of waste caused by its employees or sub-suppliers; will remove all rubbish from and about the Premises and all its tools, scaffolding, and surplus materials, and will leave the premises "broom clean" or its equivalent, unless more exactly specified. In case of a dispute between Supplier and its sub-suppliers as to responsibility for the removal of the rubbish, or if it is not promptly removed, UC may remove the rubbish and charge the cost to Supplier.

12.2. Environmental, Safety, Health, and Fire Protection. Supplier will take all reasonable precautions in providing the Goods and/or Services to protect the health and safety of UC employees, agents, and members of the public; to minimize danger from all hazards to life and property; and to comply with all applicable environmental protection, health, safety, and fire protection regulations and requirements (including reporting requirements). In the event Supplier fails to comply with such regulations and requirements, UC may, without prejudice to any other rights of UC, issue an order stopping any or all provision of the Goods and/or Services; thereafter a start order for resumption of providing the Goods and/or Services may be issued at UC’s discretion. Supplier will not be entitled to make a claim for extension of time or for compensation or damages by reason of or in connection with such stoppage. Supplier is solely responsible for the safety of all persons employed by Supplier and its sub-suppliers on UC Premises, or any other person who enters upon UC Premises at Supplier’s request or for reasons relating to the Agreement.