Attachment C General Terms and Conditions1.docx

IFB# 24KES0213 Football Summer Catering

ATTACHMENT C

GENERAL TERMS AND CONDITIONS

1. UNIVERSITY’S RESERVED RIGHTS:

1.1 Reject any and all proposals received in response to this IFB, make a contract award in whole or in part.

1.2 Make no contract award.

1.3 Reject any or all portions of any proposal, to negotiate terms and conditions consistent with this IFB and to make an award for any or all remaining portions.

1.4 Withdraw this IFB at any time, at University’s sole discretion.

1.5 Disqualify any Bidder whose conduct or proposal fails to conform to this IFB including but not limited to: Bidder contact outside of designated contacts; Bidder response contains conflicts with IFB terms and conditions; and Bidder’s failure to accept New York State Exhibit A and Exhibit A-1.

1.6 Use proposal information obtained through site visits, management interviews and the State’s investigation of a Bidder’s qualifications, experience ability or financial standing, and any material or information submitted by the Bidder in response to the University’s request for clarifying information, in the course of evaluation and/or selection under this IFB.

1.7 Prior to bid opening, amend this IFB specifications to correct errors or oversights, or to supply additional information, as it becomes available.

1.8 Request certified and non-certified audited financial statements for the past three (3) completed fiscal years and/or other appropriate supplementation including, but not limited to, interim financial statements and credit reports.

1.9 Request references and contact any or all references and perform other related due diligence.

1.13 Negotiate with Bidders responding to this IFB within the requirements necessary to serve the best interests of SUNY.

1.14 Begin contract negotiations with another Bidder in order to serve the best interests of SUNY should contract negotiations with the Successful Bidder be unsuccessful within a time frame acceptable to SUNY.

1.15 Require clarifications from Bidders for purposes of assuring a full understanding of responsiveness, and permit revisions from all Bidders determined to be susceptible to contract award prior to award.

2. AFFIRMATIVE ACTION POLICY: New York State Executive Order Number 6, regarding equal employment opportunities states: It is the policy of the State of New York that equal opportunity be assured in the State’s personnel system and affirmative action provided in its administration in accordance with the requirement of the State’s Human Rights Law and the mandate of Title VII of the Federal Civil Rights Act, as amended. Accordingly, it is the responsibility of the State’s Department of Civil Service to enforce the State‘s policy of ensuring full and equal opportunity for minorities, women, disabled persons and Vietnam era veterans at all occupational levels of state government. In keeping with this policy, the State University of New York and the State University of New York at Buffalo mandates compliance internally and for all organizations with which it conducts business. Additionally, the following language applies with respect to this IFB and shall be deemed incorporated into any contract or subcontract issued hereunder: This contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-300.5(a) and 60- 741.5(a). These regulations prohibit discrimination against qualified individuals on the basis of protected veteran status or disability, and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and individuals with disabilities.

3. CHANGES: By written notice to the Contractor, the University may make changes within the general scope of the contract. The Contractor and the University’s Contract Manager(s) shall come to a mutual agreement, and together will determine if any additional charges apply. Once there is consensus, a written Amendment to the contract will be required. The Amendment to the contract will be executed by University and Contractor.

4. COMPLIANCE WITH NEW YORK STATE REQUIREMENTS: It is mandatory that every Bidder must comply and submit all required documentation, if relevant to this proposal. This documentation includes, but is not limited to the Non-Collusion Certificate. Failure to submit completed forms could result in Bidder disqualification.

5. CONTRACTOR’S REPRESENTATIONS AND WARRANTIES:

5.1 The Contractor warrants that the services it provides under the Agreement resulting from this IFB will conform substantially to the specifications set out in the Agreement and that all work will be performed in a professional and workmanlike manner, in accordance with the highest applicable industry standards. For purposes of this Agreement, “highest applicable industry standards” shall be defined as the degree of care, skill, efficiency, and diligence that a prudent person possessing technical expertise in the subject area and acting in a like capacity would exercise in similar circumstances.

5.2 Contractor represents that it is fully capable and willing to provide the services required by the Agreement resulting from this IFB; that it has full right and authority to enter into the Agreement; that consent, authorization, order or approval of, or filing or registration with any governmental agency, commission, board, other regulatory body, any person or entity or any corporate affiliates is either not required or has been obtained for or in connection with the execution and delivery of the Agreement by Contractor and the performance of the work hereunder; that it is not a party to, subject to, or bound by, any agreement, judgment, order, writ, injunction or decree which would prevent the carrying out of the Agreement resulting from this IFB.

5.3 Guarantee: Every unit delivered shall be guaranteed against faulty material and workmanship for the period specified in the manufacturer’s guarantee policy. If, during this period, such faults develop the University will work with the vendor and manufacturers to identity an appropriate resolution, including replacement without any cost to the University.

5.4 New York State Vendor Identification Number: The New York State Office of the State Comptroller requires all New York State payment recipients be registered in the New York State Financial System database. No financial transactions can proceed between any New York State Agency and any vendor until this registration process is completed and a 10-digit Vendor ID number has been assigned. For more information go to: http://www.osc.state.ny.us/vendorguide/guide.htm.

All bidders will need a 10-digit Vendor ID number in order to complete and submit the Vendor Responsibility Questionnaire, which is a mandatory requirement for this IFB.

6. DATA PRIVACY & SECURITY: When Contractor creates, receives, maintains or transmits data on behalf of University (“University”), Contractor will comply with the following requirements to safeguard University Data:

6.1 Contractor will use any University Data only for the purpose of fulfilling its duties under the Agreement and will not share such data with, or disclose it to, any third party without the prior written consent of University, except as required by the Agreement or as otherwise required by law.

6.2 Contractor will provide access to University Data only to its employees and subcontractors who need to access the data to fulfill its obligations under the Agreement.

6.3 Contractor will ensure that employees who perform work under the Agreement have read, understood, and received appropriate instruction as to how to comply with the data protection provisions of the Agreement.

6.4 Location of Data: University Data will not be stored outside the United States without prior written consent from University and signing of the Agreement is not considered prior written consent.

6.5 European Union (“EU”) General Data Protection Regulation (“GDPR”): Unless otherwise agreed in writing by the parties, Contractor, as well as any subcontractors Contractor may employ to perform any of its obligations under this Agreement, shall be solely responsible for compliance with the EU GDPR 2016/679, if applicable.

6.6 Gramm-Leach-Bliley Act: Pursuant to the Gramm-Leach-Bliley Act (P.L. 106-102) and the Federal Trade Commission’s Safeguards Rule (16 CFR Part 314) (“GLBA”), and to the extent Contractor is a financial institution or service provider of SUNY under these regulations with respect to student or customer information, Contractor will comply with the Safeguards Rule including the requirement to implement and maintain a written Information Security Program (“Program”) in order to protect such nonpublic customer information (any record containing nonpublic personal information as defined in 16 CFR §313.3(n), whether in paper, electronic, or other form that is handled or maintained by or on behalf of SUNY or SUNY affiliates (16 CFR §314.2)).

6.7 Data Security Requirements: Contractor agrees at all times to maintain industry standard information and critical infrastructure security features and protocols which at a minimum, include: network firewall provisioning, intrusion detection, Distributed Denial of Service Scrubbing and regular (at least annually) third party vulnerability assessments, or equivalent. Further, Contractor agrees to maintain information and critical infrastructure security that conforms to generally recognized “Industry Standards“ and best practices that Contractor applies to its own network, infrastructure, applications and data. Generally recognized industry standards include but are not limited to the current standards and benchmarks set forth and maintained by the Center for Internet Security (See, http://www.cisecurity.org) or Payment Card Industry/Data Security Standards (PCI/DSS) (See, http://www.pcisecuritystandards.org). Contractor will maintain a data security plan (“Data Security Plan”), or equivalent, which will comply with PCI DSS requirements and all applicable legal and regulatory requirements for data protection. In addition, the Data Security Plan will protect against any anticipated threats or hazards to the security or integrity of information stored on its servers and unauthorized access to or use of such information that could result in harm or inconvenience to the person who is the subject of such information. Contractor will review, at least annually, its Data Security Plan and update and revise it as needed. A copy of Contractors’ Data Security Plan, or equivalent, will be made available to University upon request. Contractor shall maintain mandatory procedures and protocols outlined in its “Information Security Incident Response Policy” to be undertaken in the event of an identified or suspected breach of credit card information or current or former student information that is not Directory Information. A copy of Contractor’s Information Security Incident Response Policy, or equivalent, will be made available to University upon request. In the event a breach is suspected, Contractor will: (i) immediately contain the possible exposure while not compromising any data on its system; (ii) contact all members of its Corporate Security Committee; (iii) initiate a local analysis within 24 hours of the suspected breach to determine the type of information that has been potentially compromised, the individuals and University at risk, the incident time frame at risk and the suspected cause of the incident; and (iv) if a breach is identified, immediately contact affected parties with details of the breach.

6.8 Compliance with Breach Notification and Data Security Laws: Contractor shall comply with the provisions of the New York State Information Security Breach and Notification Act (General Business Law § 899-aa; State Technology Law § 208) (“ISBNA”) and shall also comply with General Business Law § 899-bb (“SHIELD”). Contractor agrees to maintain the security of private information (as defined in ISBNA) and to prevent unauthorized use and/or disclosure of that private information; and implement administrative, physical, and technical safeguards required by law. Contractor agrees to fully disclose to University pursuant to the ISBNA, SHIELD, FERPA, GLBA and any other applicable law any breach of the security of a system where Contractor creates, receives, maintains or transmits private information on behalf of University following discovery or notification of the breach in the system as to any resident of New York State whose private information was, or is reasonably believed to have been, acquired by a person without valid authorization (“Security Incidents”). The disclosure shall be made in the most expedient time possible and without unreasonable delay, consistent with the legitimate needs of law enforcement or any measures necessary to determine the scope of the breach and restore the reasonable integrity of the system. Contractor shall be liable for the costs associated with such Security Incidents if caused by Contractor’s negligent or willful acts or omissions, or the negligent or willful acts or omissions of Contractor’s agents, officers, employees or subcontractors. In the event of a Security Incident involving University Data, pursuant to the ISBNA/SHIELD, University has an obligation to notify every individual whose private information has been or may have been compromised. In such an instance, Contractor agrees that University will determine the manner in which such notification will be provided to the individuals involved pursuant to the ISBNA/SHIELD and agrees to indemnify University against any cost arising from the Security Incident including, but not limited to, the cost of investigating the incident and of providing notice to the affected individuals. Upon termination or expiration of the Agreement, Contractor will follow University’s instructions relating to any University Data remaining in Contractor’s possession. Upon authorization from University, Contractor will use data and document disposal practices that are reasonable and appropriate and in compliance with ISBNA/SHIELD and any other applicable law to prevent unauthorized access to or use of University Data and will render the private information so that it cannot be read or reconstructed.

6.9 Disaster Recovery: Contractor shall maintain disaster recovery services at the dedicated facility that is able to handle University Data and business continuity needs under the Agreement in the event disaster recovery is needed. Throughout the term of the Agreement, Contractor shall maintain contracts or arrangements that are substantially equivalent or an improvement to those currently in effect. Contractor shall test disaster recovery capabilities, at least once every calendar year and provide University with a copy of its disaster recovery plan, or equivalent, upon request.

6.10 Business Continuity: Contractor at all times must have a business continuity plan in place designed to minimize the risks associated with a disaster or similar incident impacting Contractor’s ability to provide Services under the Agreement.

7. DEBRIEFING: Bidders that responded to this bid will be given written notices as to whether their Bids were successful or unsuccessful. Upon being notified of their unsuccessful Bids, Bidders may request a debriefing in writing within fifteen (15) calendar days of such notice. The fifteen (15) day period starts, once unsuccessful Bidders are notified. Once a request is made by the Bidders:

(i) The University will schedule the debriefing within a reasonable time of such request.

(ii) The debriefing will be conducted in person with the Bidder, unless the University and the Bidder mutually agree to use another method such as by telephone, video conference or another type of electronic communication.

(iii) Bidders’ written request must state whether the Bidder will be attending with counsel, to allow the University to arrange for the University counsel attendance if so determined.

(iv) The debriefings will cover, but not limited to the following:

(a) The reason why the Bid was unsuccessful.

Proposal Protest Procedures: Bidders wishing to file a bid protest may do so in accordance with the University’s procedures, available at: http://www.suny.edu/sunypp/documents.cfm?doc_id=699

7.1 Contract Award Protest: A protesting party may submit a protest to a protest officer in writing, setting forth the basis on which the protesting party challenges a contract award by the University. Detailed information is available at Procurement Policies and Procedures Document 7561. http://www.suny.edu/sunypp/documents.cfm?doc_id=699

7.2 Proposal Confidentiality: All proposals submitted for the University’s consideration will be held in confidence and will become the property of the University. However, the resulting contract is subject to the New York State Freedom of Information Law (FOIL). Therefore, if an Offeror believes that any information in its Proposal constitutes a trade secret or should otherwise be treated as confidential and wishes such information not to be disclosed if requested, pursuant to FOIL, (Article 6 of the Public Officers' Law), the Offeror shall submit with its Proposal a separate letter addressed to: Brian Hines, Records Access Officer, University at Buffalo 120 Crofts Hall, Buffalo, New York 14260 or via e-mail at ubfoil@buffalo.edu specifically identifying the page number(s), line(s) or other appropriate designation(s) containing such information, explaining in detail why such information is a trade secret and formally requesting that such information be kept confidential. Failure by an Offeror to submit such a letter with its Proposal identifying trade secrets will constitute a waiver by the Offeror of any rights it may have under Section 89(5) of the Public Officers' Law relating to protection of trade secrets. The proprietary nature of the information designated confidential by the Offeror may be subject to disclosure if ordered by a court of competent jurisdiction. A request that an entire Proposal be kept confidential is not advisable since a proposal cannot reasonably consist of all data subject to FOIL proprietary status.

7.3 Supplemental Bidder Terms: Any terms that are attached or referenced with a submission shall not be considered part of the proposal or resulting contract, if any, but shall be deemed included for informational purposes only. The resulting agreement shall be binding upon its execution by both parties and, if required by New York State law, upon the approval of the Attorney General and the Office of the State Comptroller.

7.4 Binding Offer: The submission of a bid constitutes a binding offer to perform and provide said services. Such binding offer shall be firm and not revocable for a period of ninety (90) days after the deadline for bid submission and will continue thereafter until the successful offeror notifies the University otherwise, in writing. Such deadline may be further extended by mutual agreement.

7.5 Bidder Costs: The University will not be liable for any costs associated with the preparation, transmittal, or presentation of any bid or materials submitted in response to this IFB.

7.6 Advertisements: Public announcements or news releases regarding this IFB or any subsequent award of a contract must not be made by any offeror without the prior written approval of the University.

8. EXCESSIVE DOWNTIME: Software furnished under this contract shall be capable of continuous operation. Should the software become inoperable due to code defects for a period of more than twenty-four (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, including verbal notification. In the event the software remains inoperable for more than two (2) consecutive calendar days, the contractor shall promptly replace the software at no charge upon request of the procuring agency. Such replacement shall be with new, unused software of comparable quality, and must be installed and operational within two (2) days following the request.

9. EXPENSES: In the event the Contractor is required to travel to perform scope of work, Contractor shall be reimbursed at the rates shown in the most recent New York State ‘Schedule of Allowable Reimbursable Travel Expense’ which can be found at: http://www.buffalo.edu/administrative-services/information-for-suppliers.html#reimbursement-for-authorized-travel-costs. Travel reimbursement shall not exceed travel expenses included in the bidder’s proposal, without prior written approval of the University.

10. EXTRANEOUS TERMS: Extraneous terms or material deviations (including additional, inconsistent, conflicting or alternative terms) may render the Bid non-responsive and may result in rejection of the Bid. Extraneous term(s) submitted on standard, pre-printed forms (including but not limited to: product literature, order forms, license agreements, contracts or other documents) that are attached or referenced with submissions shall not be considered part of the Bid or resulting Contract, but shall be deemed included for informational or promotional purposes only. Acceptance and/or processing of the Bid shall not constitute such written acceptance of Extraneous Term(s).

11. FINANCIAL STABILITY: The University reserves the right to request, anytime during the process, financial data which would adequately reflect the financial stability of the Bidder to support the execution of the contract. The University’s request may include certified audited financial statements for the past three (3) completed fiscal years and/or other appropriate supplementation, not limited to, interim financial statements and Credit reports. Bidder shall provide all information within five (5) business days upon request by the University’s Purchasing Department. The University reserves the right to reject any Bidder who does not demonstrate stability sufficient for the scope of this project. The University reserves the right to request additional documentation from the Bidder and to request reports on financial stability from independent financial rating services.

12. FORCE MAJEURE: Neither Contractor, University, nor the State of New York shall be deemed in default of this Agreement, nor shall it hold the other Party responsible for, any cessation, interruption or delay in the performance of its obligations (excluding payment obligations) due to earthquake, flood, fire, storm, natural disaster, act of God, an act of war whether declared or undeclared, acts or threats of terrorism, contamination by radioactivity, pressure waves from devices travelling at supersonic speeds or damage caused by any aircraft or similar device, armed conflict, labor strike, lockout, boycott, electrical, internet or telecommunications outage that is not caused by the obligated party; or government restrictions, or other force majeure or other unforeseeable circumstances beyond the control of the Parties against which it would have been unreasonable for the affected party to take precautions and which the affected party cannot avoid even by using its best efforts, provided that the Party relying upon this provision: (i) gives prompt written notice thereof to the other Party; and (ii) takes all steps reasonably necessary to mitigate the effects of the force majeure event. If a force majeure event extends for a period in excess of more than 90 days, either party may terminate all or any agreed upon portion of the Agreement immediately upon written notice. This Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures, or University’s obligation to pay for Services provided by Contractor which have been approved by University.

13. FREE AND OPEN COMPETITION: The University encourages free and open competition. Whenever possible, terms, specifications, and conditions are designed to accomplish this objective, consistent with the necessity to satisfy the University’s needs.

14. FREEDOM OF INFORMATION LAW: Contractor acknowledges that this Agreement is subject to the New York State Freedom of Information Law (“FOIL”) as set forth in Article 6 of the New York State Public Officers Law, and that only Contractor’s proprietary information that satisfies the requirements of §87(2)(d) of the Public Officers Law shall be excepted from disclosure thereunder. All proposals submitted for the University's consideration will be held in confidence and will become the property of the University. However, the resulting contract is subject to the New York State Freedom of Information Law (FOIL), contained in Article 6 of the New York State Public Officer’s Law. Therefore, if a Bidder believes that any information in its proposal constitutes a trade secret, should be treated as confidential and should not be disclosed upon a request pursuant to FOIL, Bidder shall submit with its proposal a separate letter addressed to the University (find contact information for FOIL Officers here: https://www.buffalo.edu/administrative-services/records-management/foil.html), specifically (i) identifying the page number(s), line(s) or other appropriate designation(s) containing such information; (ii) explaining in detail why such information is a trade secret or confidential; and (iii) formally request that such information be held as confidential. Bidder’s failure to submit such a letter with its proposal will constitute a waiver by the Bidder of any rights it may have under Section 89(5) of the Public Officers' Law relating to protection of trade secrets. The proprietary nature of the information designated confidential by the Bidder may be subject to disclosure if ordered by a court of competent jurisdiction. A request that an entire proposal be kept confidential is not advisable, because a proposal cannot reasonably consist exclusively of proprietary information.

15. GOVERNING LAW: This IFB, Bidders’ proposals and any resulting contract shall be governed, construed and enforced in accordance with the laws of the State of New York, excluding New York’s choice of law principles in a New York court of competent jurisdiction. Contractor agrees to submit itself to such court’s jurisdiction.

16. IMPLEMENTATION: Implementation of the services will be a mutual endeavor and must be complete to University’s satisfaction. Successful Bidder will be required to assign a team of representatives to University’s account who will be responsible for implementation of the services.

17. INDEPENDENT CONTRACTOR: The Contractor and its agents or employees or any entity or person acting on behalf of the Contractor engaged in the performance of work shall at all times be deemed to be performing as independent contractors. The Contractor hereby covenants and agrees to act in accordance with that status. The Contractor and its agents or employees or any entity or person acting on behalf of the Contractor shall neither hold themselves out as, nor claim to be, officers or employees of the University and shall make no claim for, nor be entitled to, Workers’ Compensation coverage, medical and unemployment benefits, social security, or retirement membership benefits from the University. Neither party shall have the right or authority to enter into binding contracts on behalf of the other.

18. INSURANCE: The Contractor will procure and maintain during the entire term of the Agreement insurance, including worker’s compensations and employer’s liability, comprehensive general liability, property damage, products’ liability insurance, and automobile liability insurance as described in the following sub-paragraphs. Contractor will at all times, at their own expense, carry commercial liability insurance and property damage insurance in the amounts of $1,000,000/$2,000,000 naming the State University of New York at Buffalo, and the State of New York as additional insured. The limits required of the Contractor may be met using any combination of primary, umbrella or excess insurance policies.

18.2 Business Automobile Insurance: Combined Single Limit $1,000,000

18.3 Workers’ Compensation Coverage Requirements: If Contractor’s employees will be performing work on campus, Contractor must obtain and maintain insurance coverage and shall deliver Certificates of Insurance for the stated coverage upon execution of a contract. An ACORD form is NOT acceptable proof of workers’ compensation coverage. In order to provide proof of compliance with the requirements of the Workers’ Compensation Law pertaining to workers’ compensation coverage, a contractor shall: Be legally exempt from obtaining Workers’ Compensation insurance coverage; or obtain such coverage from an insurance carrier; or be a Workers’ Compensation Board-approved self-insured employer or participate in an authorized self-insurance plan. Workers’ Compensation (including occupational disease) and Employer’s Liability New York Statutory Endorsement with a minimum limit of $1,000,000 as evidenced by one (1) of the following: Form C-105.2 (9/07) if coverage is provided by the contractor’s insurance carrier, contractor must request its carrier to send this form to the State University of New York; or Form U-26.3 if coverage is provided by the State Insurance Fund, contractor must request that the State Insurance Fund send this form to the State University of New York; or Form SI-12, Certificate of Workers’ Compensation Self-Insurance available from the New York State Workers’ Compensation Board’s Self-Insurance Office; or Form GSI-105.2, Certificate of Participation in Workers’ Compensation Group Self-Insurance available from the contractor’s Group Self-Insurance Administrator.

18.4 Proof of Compliance with Disability Benefits Coverage Requirements: If Contractor’s employees will be performing work on campus, Contractor must obtain and maintain insurance coverage and shall deliver Certificates of Insurance for the stated coverage upon execution of a contract. An ACORD form is NOT acceptable proof of Disability Benefits Coverage. In order to provide proof of compliance with the requirements of the Workers’ Compensation Law pertaining to disability benefits, a contractor shall: be legally exempt from obtaining disability benefits coverage; or obtain such coverage from an insurance carrier; or be a Board-approved self-insured employer. New York State Disability Benefits as evidenced by one of the following: Form DB-120.1, Certificate of Disability Benefits Insurance. Contractor must request its business insurance carrier to send this form to The State University of New York; or Form DB-155, Certificate of Disability Benefits Self-Insurance. The Contractor must call the Board’s Self-Insurance Office at 518-402-0247 to obtain this form.

18.5 Policies must be written by companies with an A.M. Best Company rating of “A” or better or otherwise be acceptable to the University.

18.6 Non-admitted carriers will only be accepted when coverage cannot be secured from an admitted carrier, as evidenced by appropriate ELANY documentation.

18.7 Policies must be endorsed in a form acceptable to the University to include a provision that the policy will not be canceled, materially changed, or not renewed without at least thirty (30) days prior written notice to the University.

18.8 The Contractor shall furnish evidence of acceptable policies to the University before any work is started. Certificates of insurance shall be presented to the University’s Purchasing Services upon award of contract or before work commences.

18.9 If, at any time during the period of the Agreement, insurance as required is not in effect, or proof thereof is not provided to the University, the University shall have the options to: (i) direct the Contractor to suspend work with no additional cost or extension of time due on account thereof; or (ii) treat such failure as an Event of Default.

18.10 In the event the State of New York requires Contractor to procure additional insurance coverage, Contractor agrees to obtain such additional coverage and furnish the University with amended Certificates of Insurance. Certificates of Insurance will be sent to the University annually, and must show that there is no lapse in coverage.

19. LIABILITY AND INDEMNIFICATION

19.1 The Contractor understands and agrees that it is responsible for the performance of the Services in accordance with the terms and conditions of the awarded Contract. The University may look solely to the Contractor for remedy, redress, liability or indemnification for any failure to perform, whether caused by Contractor itself or by one or more of its officers, employees, subcontractors, agents, licensees, licensors or affiliates or any person or entity acting on behalf of Contractor in providing the Services. Contractor shall be fully liable for any act or omission of Contractor and its Staff (officers, employees, agents, subcontractors or licensees) and shall fully indemnify, defend, and hold harmless the University and the State, their officials, agents, and employees, without limitation, from suits, actions, damages, and costs of every name and description (including reasonable attorney’s fees and expenses) arising from any act or omission of Contractor or its Staff, including bodily or personal injury (including wrongful death); damage to real or tangible personal property (including electronic systems, software and databases); damage to intellectual property; and infringement or violation of a third party's patent, copyright, license, or other proprietary or intellectual property right; provided however that Contractor shall not be obligated to indemnify the University for that portion of any claim, loss, or damage arising hereunder due to the negligent act or failure to act of the University. For third party claims, the University shall give Contractor: i)Prompt written notice of any action, claim, suit, proceeding, or threat of such action for which Contractor is liable relating to this Agreement; ii)The opportunity to take over, settle, or defend any such action, claim, suit, or proceeding at the Contractor’s sole expense; and iii)Reasonable assistance in the defense of any such action, claim, suit, or proceeding at the expense of the Contractor. Notwithstanding the foregoing, the State of New York reserves the right to join such action, claim, suit or proceeding at its sole expense, if it determines there is an issue involving a significant public interest.

19.2 For all other claims, liabilities, and expenses arising under or related to this Agreement where liability is not otherwise set forth in this Agreement as being without limitation, and regardless of the basis on which the claim is made, the Contractor shall be liable for any act or omission of Contractor and its Staff, in an amount not to exceed, in aggregate, the greater of the dollar amount of this Agreement, or two times the charges paid to the Contractor. The Contractor shall not be responsible for loss of records or data unless the Contractor is required to back-up the records or data.

19.3 Notwithstanding the above, neither party shall be liable for any consequential, indirect, or special damages of any kind that may result directly or indirectly from such performance, including, without limitation, damages resulting from loss of use or loss of profit by the University, the Contractor, or by others.

20. MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES: It is the policy of the State University of New York to take affirmative action to ensure that minority and women-owned business enterprises are given the opportunity to demonstrate their ability to provide goods and services at competitive prices. GOALS FOR MINORITY AND WOMEN- OWNED BUSINESS ENTERPRISES PARTICIPATION: For all State Contracts in excess of $25,000.00 whereby each SUNY campus is committed to expend or does expend funds in return for labor, services including but not limited to legal, financial and other professional services, supplies, equipment, materials or a combination of the foregoing or all State Contracts in excess of $100,000.00 whereby the SUNY campus expects to expend or does expend funds for the acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements thereon, Contractor shall exert good faith efforts to achieve a participation goal of zero percent (0%) for certified Minority-Owned Business Enterprises and zero percent (0%) for certified Women-Owned Business Enterprises.

21. NON-DISCLOSURE AND CONFIDENTIALITY: Except as it may be required by applicable law or a court of competent jurisdiction, Contractor, its officers, agents, employees, and subcontractors, if any, shall maintain strict confidence with respect to any Confidential Information to which Contractor its officers, agents, employees, and subcontractors, if any, have access. This representation shall survive the termination of the Agreement. For the purposes of the Agreement, all University information of which Contractor, its officers, agents, employees, and subcontractors, if any, becomes aware during the course of performing services for the University shall be deemed to be Confidential Information (oral, visual or written, in paper, electronic or any other format). The University agrees to provide Contractor with access to University’s database of information concerning University Alumni, fans, and supporters, Including information with respect to telephone numbers, e-mail addresses and prior ticket purchases. Such database and related information shall be used by Contractor solely for the purpose of Contractor performing the services under this Agreement and for no other purpose. All such information shall be deemed Confidential Information of the University and treated in accordance with the terms set forth herein and all applicable University policies and procedures, including, without limitation, University’s data protection policies. All information accessed and received by Contractor and their employees hereunder shall at all times remain the property of the University.

21.1 Notwithstanding the forgoing, information that falls into any of the following categories shall not be considered Confidential Information:

21.2 Information that is previously rightfully known to the receiving party without restriction on disclosure;

21.2.1 Information that becomes, from no act or failure to act on the part of the receiving parts, generally known in the relevant industry or is in the public domain; and

21.2.2 Information that is independently developed by Contractor without use of Confidential Information of the Client.

21.3 Contractor shall hold the Client harmless, without limitation, from any loss or damage to the Client resulting from the disclosure by Contractor, its officers, agents, employees, and subcontractors of such Confidential Information.

21.4 In the event that it becomes necessary for Contractor to receive Confidential Information, which Federal or State statute or regulation prohibits from disclosure, Contractor hereby agrees to return or destroy all such Confidential Information that has been received from the University when the purpose that necessitated its receipt by Contractor has been completed. In addition, Contractor agrees not to retain any Confidential Information, which Federal or State statute or regulation prohibits from disclosure after termination of the Agreement.

21.4.1 Notwithstanding the foregoing, if the return or destruction of the Confidential Information is not feasible, Contractor agrees to extend the protections of the Agreement for as long as necessary to protect the Confidential Information and to limit any further use of disclosure of that Confidential Information. If Contractor elects to destroy Confidential Information, it shall use reasonable efforts to achieve the same and notify the University accordingly. Contractor agrees that it will use all appropriate safeguards to prevent any unauthorized use of unauthorized disclosure of Confidential Information, which Federal or State statute or regulation prohibits from disclosure.

21.4.2 Immediately upon terminating this Agreement, Contractor will deliver to University all University’s Confidential Information Contractor and its employees possess.

22. NOTICES: Unless otherwise provided herein, any notice, request, demand, or statement provided for in the resulting contract shall be in writing and deemed given when deposited in the United States postage prepaid directed to the post office address of the parties.

23. OSHA: If applicable, the Contractor shall provide all necessary safeguards for safety and protection as set forth by the United States Department of Labor, Occupational Safety and Health Administration. The University reserves the right to stop work that is proceeding in an unsafe manner.

24. PAYMENT: Payment will be made thirty (30) calendar days of submission and acceptance of invoice, in accordance with New York State Prompt Payment Legislation.

27. RESTRICTIONS ON THE ACTITIVES OF CURRENT AND FORMER STATE OFFICERS AND EMPLOYEES: All Contractor employees must be aware of and comply with the requirements of the New York State Public Officers Law, all other appropriate provisions of New York State Law and all resultant codes, rules and regulations from State laws establishing the standards for business and professional activities of State employees and governing the conduct of employees of firms, associations and corporations in business with the State. The Contractor and their employees are cautioned that the hiring of former state employees may violate the Ethics Law. The governing provisions are set forth in the New York State Public Officers Law §§ 73 and 74, and the underlying principle of law is to prevent conflicts of interest and encourage ethical behavior. The law may be found on the following website: http://www.jcope.ny.gov/about/laws_regulations.html. Failure to comply with those provisions may result in termination of the Agreement and/or other civil or criminal proceedings as required by law.

28. REVIEW AND AUDIT: Periodic reviews will be conducted to ensure pricing is in compliance. All accounts, reports, files and other records relating to this contract shall be subject at all reasonable times to inspection and audit by University or their agents during the term of this contract and for seven (7) years thereafter.

29. SERVICE-DISABLED VETERAN-OWNED BUSINESS: It is the policy of the State University of New York to take affirmative action to ensure that Service-Disabled Veteran Owned Businesses are given the opportunity to demonstrate their ability to provide goods and services at competitive prices. Contractors shall exert good faith efforts to achieve a participation goal of six percent (6%) for New York State certified Service-Disabled Veteran Owned Businesses.

30. Encouraging Use of New York State Businesses in Contract Performance: Each Bidder must demonstrate their commitment to the use of New York State businesses by completing the form.

31. Child Protection Policy: The University is committed to the protection of the community’s children and students. The Bidder/Contractor must adhere to all requirements of the University’s Child Protection Policy.

32. Non-Collusion Certificate: Each Bidder must complete and return with their bid.

33. New York State Executive Order No. 177 Certificate: Each Bidder must complete and return with their bid.

34. SILENCE OF SPECIFICATIONS: The apparent silence of this specification and any supplemental specifications as to any details or the omission from it of a detailed description concerning any point shall be regarded as meaning that only the best professional practices are to prevail. All interpretations of the specification shall be made upon the basis of this statement.

35. STANDARD CLAUSES: Any contract resulting from this IFB shall include Exhibit ‘A’ (attached), the Standard Clauses for all New York State Contracts and Exhibit ‘A-1’ (attached), the Affirmative Action Clauses the provisions of which shall take precedence over any provision in this IFB. These clauses relate to, among other things, assignment of the contract, availability of funds, non-discrimination, affirmative action, non-collusion, Workers’ Compensation.

36. SUBCONTRACTORS: In the event the Contractor uses subcontractors, partners, or other third parties, the Contractor will remain responsible for compliance with all specifications and performance of all obligations under the contract resulting from this IFB. For the resulting agreement, the successful bidder will be the prime contractor. Within fifteen (15) calendar days after Notice of Award or upon request, the Successful Bidder must submit a written statement to the University giving the name and address of all proposed subcontractors. The statement must contain a description of the portion of the work and materials, which the proposed subcontractors are to perform, and must furnish any other information to document that the proposed subcontractors have the necessary facilities, skill, integrity, past experience and financial resources to perform the work in accordance with the terms and provisions of the contract. If the University finds that the proposed subcontractors are qualified, it will so notify the Contractor within ten (10) business days following receipt of Contractor’s written statement described above. If the University determines that a subcontractor is not qualified, it will so notify the Contractor. The Contractor must, within ten (10) business days thereafter, submit a written statement as described above with respect to other proposed subcontractors, unless the Contractor decides to do such work itself and in the University’s opinion is qualified to do such work. The University’s approval of a subcontractor shall not relieve the Contractor of any of its responsibilities, duties and liabilities under the contract. The Contractor shall be solely responsible to the University for the acts, omissions or defaults of such subcontractors and of such subcontractors' officers, agents and employees, each of whom shall, for this purpose, be deemed the agent or employee of the Contractor to the extent of its subcontract. No provisions of the awarded contract shall create or be construed as creating any contractual relation between the University and any subcontractor or subsubcontractor or with any person, firm or corporation employed by, contracted with or whose services does the Contractor utilize. The Contractor shall be fully responsible for the administration, integration, coordination, direction and supervision of all of its subcontractors and of all work. Contractor shall check requirements of the work, coordinate, and adjust as required so that conflicts in time, workspace, equipment and supplies do not occur in the work being performed by the Contractor with its own employees and the work being performed by its subcontractors. No subcontractor shall be permitted to work until it has furnished satisfactory evidence to the University of the insurance required by law. The Contractor shall execute a written agreement with each of its subcontractors and shall require all subcontractors to execute with their subsubcontractors a written agreement, which shall bind each to the terms and provisions of the prime contract, awarded, insofar as such terms and provisions are applicable to the work to be performed by such subcontractors. The Contractor shall require all subcontractors and subsubcontractors to file promptly with the University, upon request, a copy of such agreements upon request, from which the price and terms of payment may be deleted.

37. TERMINATION: The Contract awarded to the Contractor may be terminated by the University for any of the following reasons:

37.1 Convenience of University: The contract may be terminated at any time upon receipt of thirty (30) days prior written notice given by the…