Attachment I.2 Proposed Contract Terms.docx

Attachment I.2 - Proposed Contract Terms Proposed Contract Terms In addition to Sections I.1, Mandatory Terms and Conditions, and I.2, Proposed Contract Terms, the State proposes to include all the following terms in any contract resulting from this solicitation. You may state an exception to any of the terms in this Attachment. If you do so, you must:

a. Identify the term(s) on an attachment to your proposal;

b. Explain why you take exception to the State’s language;

c. Indicate what change or alternative language you propose;

d. Clearly identify why the acceptance of your change or alternative language would be advantageous to the State.

The State will interpret the absence of an exception to a term as your acceptance of that term.

When the apparent successful vendor has been determined, the agreed upon contract terms will be incorporated into a fully integrated document that will serve as the parties’ final contract.

Contents

Export Control ………………………………………………………………………………………………………………………………………..9 False Claims (JAN 2006) 9 GDPR Compliance …………………………………………………………………………………………………………………………………..9 Implementation Services in a Dual Prime Offer……………………………………………………………………………………..10 Indemnification Intellectual Property Infringement……………………………………………………………………………….10

Request for Proposals No. 5400023659 Attachment I.2, page ii Request for Proposals No. 5400023659 Attachment I.2, page ii Additional Terms and Conditions The Contractor(s) shall include any and all additional license or subscription documents, terms and conditions or ancillary contracts or open-source agreements relative to their proposal. The State reserves the right to negotiate the terms and conditions of any such Contractor supplied terms, documents, and agreements or to reject and substitute any other instruments that it determines necessary for completing the Contract as finally agreed upon. The State will not sign any third-party agreements in conjunction with the award or performance of this contract.

Assignment, Novation, and Change of Name, Identity, or Structure (MODIFIED)

(a) Offeror(s) shall not assign the contract, or its rights, obligations, or any other interest arising from the contract, or delegate any of its performance obligations, without the express written consent of the responsible procurement officer. The foregoing restriction does not apply to a transfer that occurs by operation of law (e.g., bankruptcy; corporate reorganizations and consolidations, but not including partial asset sales). Notwithstanding the foregoing, contractor may assign monies receivable under the contract provided that Clemson shall have no obligation to make payment to an assignee until thirty (30) days after contractor (not the assignee) has provided the responsible procurement officer with (i) proof of the assignment, (ii) the identity (by contract number) of the specific state contract to which the assignment applies, and (iii) the name of the assignee and the exact address or account information to which assigned payments should be made. (b) If contractor amends, modifies, or otherwise changes its name, its identity (including its trade name), or its corporate, partnership or other structure, or its FEIN, contractor shall provide the procurement officer prompt written notice of such change. (c) Any name change, transfer, assignment, or novation is subject to the conditions and approval required by Regulation 19-445.2180, which does not restrict transfers by operation of law.

Bankruptcy - General (MODIFIED)

(a) Notice. In the event a Offeror enters into proceedings relating to bankruptcy, whether voluntary or involuntary, the Offeror agrees to furnish written notification of the bankruptcy to the Using Governmental Unit. This notification shall be furnished within two (2) days of the initiation of the proceedings relating to the bankruptcy filing. This notification shall include the date on which the bankruptcy petition was filed, the identity of the court in which the bankruptcy petition was filed, and a listing of all State contracts against which final payment has not been made. This obligation remains in effect until final payment under the Contract. (b) Termination. The contract(s) is/are voidable and subject to immediate termination by Clemson upon any contractor's insolvency, including the filing of proceedings in bankruptcy.

Bankruptcy – Government Information (MODIFIED)

(a) All government information (as defined in the clause herein entitled “Definitions”) shall belong exclusively to the State or Clemson, and Offeror has no legal or equitable interest in, or claim to, such information. Offeror acknowledges and agrees that in the event Offeror enters into proceedings relating to bankruptcy, whether voluntary or involuntary, government information in its possession and/or under its control will not be considered property of its bankruptcy estate.

(b) Offeror agrees to notify Clemson within forty-eight (48) hours of any determination that it makes to file for bankruptcy protection, and Offeror further agrees to turn over to Clemson, before such filing, all government information that is in Offeror’s possession in a format that can be readily utilized by Clemson.

(c) In order to protect the integrity and availability of government information, Offeror shall take reasonable measures to evaluate and monitor the financial circumstances of any subcontractor that will process, store, transmit or access government information.

Changes (MODIFIED)

(1) Contract Modification. By a written order, at any time, and without notice to any surety, the Procurement Officer may, subject to all appropriate adjustments, make changes within the general scope of this contract in any one or more of the following:

(a) description of services to be performed,

(b) time of performance (i.e., hours of the day, days of the week, etc.); or,

(c) place of performance of the services.

(2) Adjustments of Price or Time for Performance. If any such change increases or decreases the contractor's cost of, or the time required for, performance of any part of the work under this contract, whether or not changed by the order, an adjustment shall be made in the contract price, the delivery schedule, or both, and the contract modified in writing accordingly. Any adjustment in contract price made pursuant to this clause shall be determined in accordance with the Price Adjustment Clause of this contract. Failure of the parties to agree to an adjustment shall not excuse the contractor from proceeding with the contract as changed, provided that Clemson promptly and duly make such provisional adjustments in payment or time for performance as may be reasonable. By proceeding with the work, the contractor shall not be deemed to have prejudiced any claim for additional compensation, or an extension of time for completion.

(3) Time Period for Claim. Within 30 days after receipt of a written contract modification under Paragraph (1) of this clause, unless such period is extended by the Procurement Officer in writing, the contractor shall file notice of intent to assert a claim for an adjustment. Later notification shall not bar the contractor's claim unless Clemson is prejudiced by the delay in notification.

(4) Claim Barred After Final Payment. No claim by the contractor for an adjustment hereunder shall be allowed if notice is not given prior to final payment under this contract.

Choice-Of-Law (JAN 2006) The Agreement, any dispute, claim, or controversy relating to the Agreement, and all the rights and obligations of the parties shall, in all respects, be interpreted, construed, enforced and governed by and under the laws of the State of South Carolina, except its choice of law rules. As used in this paragraph, the term "Agreement" means any transaction or agreement arising out of, relating to, or contemplated by the solicitation. [07-7A010-1]

CISG

The parties expressly agree that the UN Convention on the International Sale of Goods shall not apply to this agreement.

Compliance With Laws (JAN 2006) During the term of the contract, contractor shall comply with all applicable provisions of laws, codes, ordinances, rules, regulations, and tariffs. [07-7B035-1] Contract Limitations (JAN 2006) No sales may be made pursuant to this contract for any item or service that is not expressly listed. No sales may be made pursuant to this contract after expiration of this contract. Violation of this provision may result in termination of this contract and may subject contractor to suspension or debarment. [07-7B045-1] Contractor Personnel (JAN 2006) The Contractor shall enforce strict discipline and good order among the Contractor's employees and other persons carrying out the Contract. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. [07-7B060-1] Contractor's Liability Insurance - General (MODIFIED) NOTE: This requirement is only in effect from the effective date of the contract through the completion of the implementation of the Solution.

(a) Without limiting any of the obligations or liabilities of Offeror(s), each Offeror shall procure from a company or companies lawfully authorized to do business in South Carolina and with a current A.M. Best rating of no less than A: VII, and maintain for the duration of the contract, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work and the results of that work by the contractor, his agents, representatives, employees or subcontractors.

(b) Coverage shall be at least as broad as:

(1) Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01 12 07 covering CGL on an "occurrence" basis, including products-completed operations, personal and advertising injury, with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, the general aggregate limit shall be thrice the required occurrence limit. This contract shall be considered to be an "insured contract" as defined in the policy.

(2) Auto Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if Offeror has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limits no less than $1,000,000 per accident for bodily injury and property damage.

(3) Worker's Compensation: As required by the State of South Carolina, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.

(c) Every applicable Using Governmental Unit, and the officers, officials, employees and volunteers of any of them, must be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Offeror including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Offeror's insurance at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10 and CG 20 37 if a later edition is used.

(d) For any claims related to the contract, the Offeror's insurance coverage shall be primary insurance as respects Clemson, every applicable Using Governmental Unit, and the officers, officials, employees and volunteers of any of them. Any insurance or self-insurance maintained by Clemson, every applicable Using Governmental Unit, or the officers, officials, employees and volunteers of any of them, shall be excess of the Offeror's insurance and shall not contribute with it.

(e) Prior to commencement of the work, the Offeror shall furnish Clemson with original certificates and amendatory endorsements, or copies of the applicable policy language effecting coverage required by this section. All certificates are to be received and approved by Clemson before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Offeror's obligation to provide them. Clemson reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by this section, at any time.

(f) Should any of the above-described policies be cancelled before the expiration date thereof, notice will be delivered in accordance with the policy provisions. In addition, the Offeror shall notify Clemson immediately upon receiving any information that any of the coverages required by this section are or will be changed, cancelled, or replaced.

(g) Each Offeror hereby grants to the State, Clemson and every applicable Using Governmental Unit a waiver of any right to subrogation which any insurer of said Offeror may acquire against the State or Clemson or applicable Using Governmental Unit by virtue of the payment of any loss under such insurance. Each Offeror agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the State, Clemson or any Using Governmental Unit has received a waiver of subrogation endorsement from the insurer.

(h) Any deductibles or self-insured retentions must be declared to and approved by Clemson. Clemson may require each Offeror to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.

(i) Clemson serves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.

Contractor's Liability Insurance - Information Security and Privacy (MODIFIED) [ASK QUESTIONS NOW: For products providing the coverages required by this clause, the insurance market is evolving. Our research indicates that the requirements stated herein reflect commercially available insurance products. Any offeror having concerns with any specific requirements of this clause should communicate those concerns to the procurement officer well in advance of opening.]

(a) Without limiting any other obligations or liabilities of a Offeror, each Offeror shall procure from a company or companies lawfully authorized to do business in South Carolina and with a current A.M. Best rating of no less than A: VII, and maintain for the duration of the contract, a policy or policies of insurance against claims which may arise from or in connection with the performance of the work and the results of that work by the contractor, his agents, representatives, employees, subcontractors or any other entity for which the contractor is legally responsible.

(b) Coverage must include claims for:

(i) information security risks, including without limitation, failure to prevent unauthorized access to, tampering with or unauthorized use of a computer system; introduction of malicious codes, computer viruses, worms, logic bombs, etc., into data or systems; or theft, damage, unauthorized disclosure, destruction, or corruption of information in whatever form;

(ii) privacy risks, including (A) failure to properly handle, manage, store, destroy, or otherwise control non-public personally identifiable information in any format; (B) loss or disclosure of confidential information; and (C) any form of invasion, infringement or interference with rights of privacy, including breach of security/privacy laws or regulations;

(iii) contractual liability for the contractor’s obligations described in the clauses titled “Indemnification - Third Party Claims – Disclosure Of Information” and “Information Use And Disclosure;” and

(iv) errors, omissions, or negligent acts in the performance, by the contractor or by any entity for which the contractor is legally responsible, of professional services included in the work.

(c) If the work includes content for internet web sites or any publications or media advertisements, coverage must also include claims for actual or alleged infringement of intellectual property rights, invasion of privacy, as well as advertising, media and content offenses.

(d) Coverage must also include claims for intellectual property infringement arising out of Software and/or content (with the exception of patent infringement and misappropriation of trade secrets).

(e) Coverage shall have limits no less than five million ($5,000,000.00) dollars per occurrence and ten million ($10,000,000.00) dollars aggregate.

(f) If the insurance required by this clause is procured on a form affording “claims-made” coverage, then (i) all limits stated above as “per occurrence” shall be understood to mean “per claim” or “per occurrence,” as is consistent with the terms of the “claims-made” policy; and (ii) such claims-made insurance shall provide for a retroactive date no later than the date the contract is awarded.

(g) All terms of this clause shall survive termination of the contract and shall continue until thirty (30) days past the final completion of the work, including the performance of any warranty work. In addition, contractor shall maintain in force and effect any “claims-made” coverage for a minimum of two (2) years after final completion of all work or services to be provided hereunder. Offeror shall purchase an extended reporting period, or “tail coverage,” if necessary to comply with the latter requirement.

(h) Every applicable Using Governmental Unit, and the officers, officials, employees and volunteers of any of them, must be covered as additional insureds on the policy or policies of insurance required by this clause.

(i) For any claims related to this contract, the insurance coverage required by this clause shall be primary insurance as respects the State, Clemson, every applicable Using Governmental Unit, and the officers, officials, employees and volunteers of any of them. Any insurance or self-insurance maintained by the State, every applicable Using Governmental Unit, or the officers, officials, employees and volunteers of any of them, shall be excess of the Offeror’s insurance and shall not contribute with it.

(j) Prior to commencement of the work, each Offeror shall furnish Clemson with original certificates of insurance for every applicable policy effecting the coverage required by this clause. All certificates are to be received and approved by the Procurement Officer before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Offeror’s obligation to provide them. Clemson reserves the right to require complete, certified copies of all required insurance policies, including policy declarations and any endorsements required by this section, at any time.

(k) Should any of the above-described policies be cancelled before the expiration date thereof, notice will be delivered in accordance with the policy provisions. In addition, the Offeror shall notify Clemson immediately upon receiving any information that any of the coverages required by this clause are or will be changed, cancelled, or replaced.

(l) Each Offeror hereby grants to the State, Clemson and every applicable Using Governmental Unit a waiver of any right to subrogation which any insurer of said Offeror may acquire against the State, Clemson or applicable Using Governmental Unit by virtue of the payment of any loss under such insurance as is required by this clause. Each Offeror agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the State Clemson or Using Governmental Unit has received a waiver of subrogation endorsement from the insurer.

(m) Any deductibles or self-insured retentions must be declared to and approved by Clemson. Clemson may require the Offeror to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.

Contractor's Obligation -- General (JAN 2006) The contractor shall provide and pay for all materials, tools, equipment, labor and professional and non-professional services, and shall perform all other acts and supply all other things necessary, to fully and properly perform and complete the work. The contractor must act as the prime contractor and assume full responsibility for any subcontractor's performance. The contractor will be considered the sole point of contact with regard to all situations, including payment of all charges and the meeting of all other requirements. [07-7B065-1] Contractor's Obligation – Prime Contractor Contractor(s) acknowledge(s) and agree(s) this Solicitation is to procure an ERP System via a SaaS deployment model, whether by way of a Sole Prime Operation Model or a Dual Prime Operating Model and Contractor(s) shall be responsible to provide and pay for all software, computer hardware and circuits, communications requirements, materials, tools, equipment, labor and professional and non-professional services, excluding Clemson’s infrastructure or work station requirements needed to access and use the System during the term. Contractor(s) shall perform all other acts and supply all other things necessary, to fully and properly perform and complete the work and provide Clemson the System and Software Support, implementation and integration services. Even in a Dual Prime Operating Model, each Contractor(s) must act as a prime contractor and assume full responsibility for any related subcontractors. No subcontracting will release Contractor(s) from any contractually assigned responsibility or obligations under its Contract. Contractor(s) will be Clemson’s sole point of contact with respect to the System and Services. Contractor(s) shall remain liable and responsible for any related subcontractors’ work and activities, including a related subcontractor(s)’ compliance with and breach of the terms of the contract, and for all acts and omissions of such subcontractors. Contractor(s) shall be solely responsible for the payment of all fees and expenses to its related subcontractors.

Contractor's Security Representations (Modified) The following obligations are subordinate to any other contract clause to the extent the other clause specifically provides for enhanced safeguarding of government information, applicable information systems, or applicable organizations. Contractor (i) warrants that the work will be performed, and any applicable information system will be established and maintained in substantial conformity with the information provided in Contractor’s Response to SPSAQ; (ii) agrees to provide the Using Governmental Unit with prompt notice of any material variation in operations from that reflected in the Response to SPSAQ; and (iii) agrees to comply with all other obligations involving either information security or information use and disclosure imposed by the contract, notwithstanding any inconsistent statement in Contractor’s Response to SPSAQ. To the extent Contractor’s Response to SPSAQ does not conform to any other contractual requirements, the Using Agency’s lack of objection does not constitute a waiver.

Contractor's Use of State Property (JAN 2006) Upon termination of the contract for any reason, the State shall have the right, upon demand, to obtain access to, and possession of, all State properties, including, but not limited to, current copies of all State application programs and necessary documentation, all data, files, intermediate materials and supplies held by the contractor. Contractor shall not use, reproduce, distribute, display, or sell any data, material, or documentation owned exclusively by the State without the State's written consent, except to the extent necessary to carry out the work. [07-7B067-1] Default (MODIFIED)

(a) (1) Clemson may, subject to paragraph (c) of this clause, by written notice of default to the Offeror(s), terminate the Contract, in whole or in part, in a Sole Prime Operating Model or terminate either or both Contracts in a Dual Prime Operating Model, in whole or in part, if a Offeror fails to:

(i) Deliver the System or perform the Services within the time specified in this contract or any extension (but see paragraph (a)(2) of this clause);

(ii) Make progress, so as to endanger performance of any obligations hereunder (but see paragraph (a)(2) of this clause); or

(iii) Perform any material provisions of the contract(s) (but see paragraph (a)(2) of this clause).

(2) Clemson's right to terminate the Contract(s) under subdivisions (a)(1)(i), (ii) or (iii) above may be exercised if the Offeror(s) does not cure such failure within thirty (30) days (or more if authorized in writing by the Procurement Officer) after receipt of the notice from the Procurement Officer specifying the failure. For purposes of clarification, in the event an award is issued to two Offerors under a Dual Prime Operating Model, the Offerors hereby acknowledge and agree that a default committed by one Offeror under its Contract with Clemson which gives rise to a right to terminate shall also be considered an event of default under the other Contract with the second Prime Offeror giving rise to a right for Clemson to terminate either or both Contracts, in whole or in part, in the sole discretion of Clemson.

(b) If Clemson terminates a Contract in whole or in part, it may acquire, under the terms and in the manner the Procurement Officer considers appropriate, a System or services similar to those terminated, and the Offeror(s) will be liable to Clemson for any excess costs for the same. However, the Offeror(s) shall continue work not terminated.

(c) Force Majeure. Except as provided in Section 7.53 and except for defaults of subcontractors at any tier, the Offeror(s) shall not be liable for any excess costs if the failure to perform the contract arises from causes beyond the control and without the fault or negligence of the Offeror(s). Examples of such causes include (1) acts of God or of the public enemy, (2) acts of either the State or Clemson in either its sovereign or contractual capacity, (3) fires, (4) floods, (5) epidemics, (6) quarantine restrictions, (7) strikes, (8) freight embargoes, and (9) unusually severe weather. In each instance the failure to perform must be beyond the control and without the fault or negligence of the Offeror(s).

(d) If, after termination, it is determined that the Offeror was not in default, or that the default was excusable, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of Clemson.

(e) The rights and remedies of Clemson in this clause are in addition to any other rights and remedies provided by law or under this contract.

Disaster Recovery

(a) Within sixty (60) days after the Effective Date, Offeror shall develop and implement to the satisfaction of Clemson and deliver to Clemson as part of the Project Plan, a Disaster Recovery Plan applicable to all of Clemson; provided, however, that to the extent any portions of the Disaster Recovery Plan are developed prior to the expiration of such sixty (60) day period, Offeror shall deliver such portions to Clemson as soon as they are so developed.

Notwithstanding the provisions of Section 7.32(c) entitled Force Majeure, Offeror shall be responsible for providing disaster recovery services if Offeror experiences or suffers a disaster or Force Majeure event. Offeror shall take all necessary steps to ensure that Clemson shall not be denied access to any of the Services hereunder for more than twelve (12) hours in the event there is a disaster that impacts any communications, data center, equipment, software, data, or any other thing necessary to provide the Services. Offeror shall maintain the capability to resume of the Services from an alternative location and via an alternative telecommunications route in the event of a disaster or Force Majeure event that impacts, diminishes, or prevents Offeror from providing the Services. If Offeror fails to restore all of the Government Information and begin performing all of the Services in accordance with the Service Levels within forty-eight (48) hours of the initial disruption to Service, or Offeror declares more than two (2) disasters or Force Majeure event in any twelve (12) month period, Clemson may declare Offeror to be in default of the Contract and Clemson may seek alternate services, which would have otherwise been provided under this Agreement, from third parties. Offeror shall reimburse Clemson for all costs reasonably incurred by Clemson in obtaining such alternative services, with payment to be made within thirty (30) days of Clemson’s written request for such payment(s).

(b) Disaster Recovery Backup - Offeror shall provide off-site storage on a daily basis of all backup disks, media, data or materials of any type whatsoever produced, processed or stored in whole or in part in connection with or related to the performance by Offeror of its obligations under this Contract (including without limitation discs, tapes, other storage media, work papers and partial drafts of documentation and source code).

Disaster Recovery Backup Contractor shall provide off-site storage on a daily basis of all backup disks, media, data or materials of any type whatsoever produced, processed or stored in whole or in part in connection with or related to the performance by Contractor of its obligations under this Contract (including without limitation discs, tapes, other storage media, work papers and partial drafts of documentation and source code). This location must be a minimum of 500 miles (radius) from the main Clemson University campus.

Escrow for Source Code If Offeror at any point during the continued installation and operation of the System discontinues the conduct of business or for any other reason fails to continue to provide maintenance and support for the System, Clemson shall be provided a copy of the source code for said System within five (5) business days at no expense to Clemson.

For the effective term of this contract, contractor will provide, to a mutually agreed upon escrow agent in the United States, the most recent version of the source code on magnetic media.

Source code shall be deposited into the escrow account within fifteen (15) days of the initiation of the contract, or any major update, non-customized enhancement, version or release of said Software.

The source code may be accessed only upon the following conditions:

a. Offeror fails or refuses to provide software maintenance, bug fixes, upgrades, updates and/or enhancement services under the terms set forth in this contract or as generally provided to similarly situated customers; or

b. Offeror ceases to do business or exist as a valid business entity, as evidenced by an adjudication of bankruptcy or other definitive measure of cessation of operations.

With regards to Offeror(s)’ Software, Clemson may not sell, assign lease, or otherwise provide said source code(s) to any other person or entity, regardless of modification, without the express written consent of Offeror(s), its/their successors, and assigns.

Export Control If Contractor is providing any items, data or services under this order that are controlled by the Department of State, Directorate of Defense Trade Controls, International Traffic in Arms Regulations (ITAR), it must notify University (by fax at 864-656-4475), and receive prior authorization from, the University’s Office of Export Controls before delivery. The notification provided by Contractor shall include the name of the University point of contact, identify each ITAR controlled commodity, provide the associated U.S. Munitions List (USML) category number(s), and indicate whether or not the determination was reached as a result of a commodity jurisdiction or self-classification process. Contractor agrees that if it fails to notify the University that it is providing ITAR-controlled items, data or services, it shall reimburse the University for any fines, legal costs and other fees imposed by the above-named regulatory agency for any violation of export controls regarding the provided items, data, or services.

False Claims (JAN 2006) According to the S.C. Code of Laws Section 16-13-240, "a person who by false pretense or representation obtains the signature of a person to a written instrument or obtains from another person any chattel, money, valuable security, or other property, real or personal, with intent to cheat and defraud a person of that property is guilty" of a crime. [07-7A035-1] GDPR Compliance Contractor hereby affirms that it is compliance with the General Data Protection Regulation (GDPR) of the European Union if the Contract involves the processing of Personal Data within the jurisdiction of the GDPR. Contractor represents that is has implemented appropriate technical and organizational measures in relation to the Processing of Personal Data intended to ensure the level of security suitable for Personal Data Processing, including the ability to ensure confidentiality, integrity, availability, and resilience of processing systems and a procedure for regularly testing, assessing, and evaluating the effectiveness of these measures. Contractor shall ensure that its sub-processors are contractually obligated to protect Personal Data in compliance with Data Protection Laws and consistent with the obligations imposed on the Contractor. Contractor shall remain responsible for the acts and omissions of each sub-processor. Contractor will notify University within 72 hours of a Personal Data security breach that could or does impact University records or data.

Implementation Services in a Dual Prime Offer While the Clemson, System Provider and third parties will provide Systems Integrator with general guidance to assist Systems Integrator in completing the implementation services to the Clemson’s satisfaction, Service Integrator is, nevertheless, ultimately responsible for directing and controlling the performance of the tasks comprising such scope of work, in accordance with the terms and conditions of this Contract, and Systems Integrator shall be solely and entirely responsible for its acts and those of any Systems Integrator personnel.

Indemnification Intellectual Property Infringement Contractor(s) will defend, indemnify and hold harmless the Indemnitees against all actions, proceedings or claims of any nature threatened or brought, directly or indirectly, by a third party (including Subcontractors) alleging that the system, derivative works or services or the use or exploitation thereof directly or indirectly misappropriates or violates any intellectual property rights of any third party (provided that Contractor(s) may not settle any claim unless it unconditionally releases Indemnitees of all liability) in violation of Contractor’s representation and warranty in paragraph 3 of the section titled Representations & Warranties:

0. Notwithstanding the foregoing, Contractor(s) shall have no indemnification obligation under this section to the extent that the alleged infringement arises out of or results from:

0. Contractor(s)’s compliance with Clemson’s specific written designs or specifications as set forth in an applicable Scope of Work if the infringement would not have occurred but for the specific written designs or specifications; or

0. Clemson’s material modification or alteration to the System which Contractor did not intend or authorize, other than as contemplated by the Contract(s), if the infringement would not have occurred but for such material alteration or modification.

0. If there is a third-party claim which may give rise to an indemnity claim under this section, Contractor(s) may:

1. obtain the right to continue using the infringing components of the System or Derivative Works;

1. modify or amend the infringing materials, without materially diminishing its functionality or performance, so that it becomes non-infringing; or

(iii) require that Clemson discontinue the use of the infringing materials and promptly return same to Contractor(s) and Contractor(s) will (x) replace the infringing materials or the relevant parts of the same with non-infringing substitutes provided that such substitutes do not entail a material reduction in the quality or performance of the respective Services; or (y) refund Clemson the services fees relating to the infringing Services or materials.

Indemnification - Third Party Claims – Disclosure of Information (FEB 2015)

(a) Without limitation, Contractor shall defend and hold harmless Indemnitees from and against any and all suits, claims, investigations, or fines (hereinafter “action”) of any character (and all related damages, settlement payments, attorneys' fees, costs, expenses, losses or liabilities) by a third party which arise out of or in connection with a disclosure of government information (as defined in the clause titled Information Security - Definitions) caused in whole or in part by any act or omission of contractor, its subcontractors at any tier, their employees, workmen, servants, agents, or anyone directly or indirectly employed by them or anyone for whose acts any of them may be liable, regardless of whether or not caused in part by an Indemnitee, and whether or not such action is brought by a third party or an Indemnitee, but only if the act or omission constituted a failure to perform some obligation imposed by the contract or the law.

(b) Indemnitee must notify contractor in writing within a reasonable period of time after Indemnitee first receives written notice of any action. Indemnitee's failure to provide or delay in providing such notice will relieve contractor of its obligations under this clause only if and to the extent that such delay or failure materially prejudices contractor’s ability to defend such action. Indemnitee must reasonably cooperate with contractor's defense of such actions (such cooperation does not require and is without waiver of an Indemnitees attorney/client, work product, or other privilege) and, subject to Title 1, Chapter 7 of the South Carolina Code of Laws, allow contractor sole control of the defense, so long as the defense is diligently and capably prosecuted. Indemnitee may participate in contractor’s defense of any action at its own expense. Contractor may not, without Indemnitee’s prior written consent, settle, compromise, or consent to the entry of any judgment in any such commenced or threatened action unless such settlement, compromise or consent (i) includes an unconditional release of Indemnitee from all liability related to such commenced or threatened action, and (ii) is solely monetary in nature and does not include a statement as to, or an admission of fault, culpability or failure to act by or on behalf of, an Indemnitee or otherwise adversely affect an Indemnitee. Indemnitee’s consent is necessary for any settlement that requires Indemnitee to part with any right or make any payment or subjects Indemnitee to any injunction.

(c) Notwithstanding any other provision, contractor’s obligations pursuant to this clause are without any limitation whatsoever. Contractor’s obligations under this clause shall survive the termination, cancellation, rejection, or expiration of the contract. This provision shall be construed fairly and reasonably, neither strongly for nor against either party, and without regard to any clause regarding insurance.

(d) "Indemnitee" means the State of South Carolina, its instrumentalities, agencies, departments, boards, political subdivisions and all their respective officers, agents and employees. [07-7B102-1] Indemnification-Third Party Claims - General (MODIFIED) Notwithstanding any limitation in this agreement, and to the fullest extent permitted by law, Contractor shall defend and hold harmless Indemnitees for and against any and all suits or claims of any character (and all related damages, settlement payments, attorneys' fees, costs, expenses, losses or liabilities) by a third party which are attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property arising out of or in connection with the goods or services acquired hereunder or caused in whole or in part by any act or omission of contractor, its subcontractors, their employees, workmen, servants, agents, or anyone directly or indirectly employed by them or anyone for whose acts any of them may be liable, regardless of whether or not caused in part by an Indemnitee, and whether or not such claims are made by a third party or an Indemnitee; however, if an Indemnitee's negligent act or omission is subsequently determined to be the sole proximate cause of a suit or claim, the Indemnitee shall not be entitled to indemnification hereunder. Contractor shall be given timely written notice of any suit or claim. Contractor's obligations hereunder are in no way limited by any protection afforded under workers' compensation acts, disability benefits acts, or other employee benefit acts. This clause shall not negate, abridge, or reduce any other rights or obligations of indemnity which would otherwise exist. The obligations of this paragraph shall survive termination, cancelation, or expiration of the parties' agreement. This provision shall be construed fairly and reasonably, neither strongly for nor against either party, and without regard to any clause regarding insurance. As used in this clause, "Indemnitees" means Clemson and the State of South Carolina, its instrumentalities, agencies, departments, boards, political subdivisions and all their respective officers, agents and employees.

Information Security - Definitions (FEB 2015) The following definitions are used in those clauses that cross reference this clause.

Compromise means disclosure of information to unauthorized persons, or a violation of the security policy of a system in which unauthorized intentional or unintentional disclosure, modification, destruction, or loss of an object may have occurred. Without limitation, the term “compromise” includes copying the data through covert network channels, or copying the data to unauthorized media, or disclosure of information in violation of any obligation imposed by this contract.

Data means a subset of information in an electronic format that allows it to be retrieved or transmitted.

Government information means information (i) provided to Contractor by, or generated by Contractor for, the using governmental unit, or (ii) acquired or accessed by Contractor as a result of performing the Work. Without limiting the foregoing, government information includes any information that Contractor acquires or accesses by software or web-based services, which includes, without limitation, any metadata or location data. Government information excludes unrestricted information.

Information means any communication or representation of knowledge such as facts, statistics, or opinions, in any medium or form, including textual, numerical, graphic, cartographic, narrative, or audiovisual.

Information system means a discrete set of information resources organized for the collection, processing, maintenance, use, sharing, dissemination, or disposition of information.

Public information means any specific information, regardless of form or format, that the State has actively and intentionally disclosed, disseminated, or made available to the public. Information is not public information solely because it may be subject to inspection pursuant to an unfulfilled public records request.

Software means any computer program accessed or used by the Using Governmental Unit or a third party pursuant to or as a result of this contract.

Third party means any person or entity other than the Using Governmental Unit, the Contractor, or any subcontractors at any tier.

Unrestricted information means (1) public information acquired other than through performance of the work, (2) information acquired by Contractor prior to contract formation, (3) information incidental to your contract administration, such as financial, administrative, cost or pricing, or management information, and (4) any ideas, concepts, know-how, methodologies, processes, technologies, techniques which Contractor develops or learns in connection with Contractor’s performance of the work.

Web-based service means a service accessed over the Internet and acquired, accessed, or used by the using governmental unit or a third party pursuant to or as a result of this contract, including without limitation, cloud services, software-as-a-service, and hosted computer services. [07-7B104-1] Information Security – Location of Data Notwithstanding any other provisions, contractor is prohibited from processing, storing, transmitting, or accessing government information, as defined in the clause titled Information Security - Definitions, outside the continental United States, Alaska, and Hawaii, without the prior written consent from Clemson, including Clemson approving applicable levels of system level access, access limited to Clemson approved Contractor personnel and only those of Contractor’s staff that required to perform services under the contract. Prior to any access, Contractor’s Clemson-approved staff shall sign a Contractor nondisclosure agreement which includes a requirement for maintaining the confidentiality of all Governmental Information acceptable to Clemson, identification of the category of confidential Clemson data that may be accessed and a security agreement acceptable to Clemson. In no event shall Governmental Information be copied, processed or archived from any geographic area outside the continental United States. For clarity, this obligation is a material requirement of this contract and applies to subcontractors at any tier.

Information Security - Safeguarding Requirements (MODIFIED)

(a) Definitions. The terms used in this clause shall have the same meaning as the terms defined in the clause titled Information Security – Definitions. In addition, as used in this clause— Clearing means removal of data from an information system, its storage devices, and other peripheral devices with storage capacity, in such a way that the data may not be reconstructed using common system capabilities (i.e., through the keyboard); however, the data may be reconstructed using laboratory methods.

Intrusion means an unauthorized act of bypassing the security mechanisms of a system.

Media means physical devices or writing surfaces including but not limited to magnetic tapes, optical disks, magnetic disks, portable hard drives, “thumb” drives, large scale integration memory chips, and printouts (but not including display media, e.g., a computer monitor, cathode ray tube (CRT) or other (transient) visual output) onto which information is recorded, stored, or printed within an information system.

Safeguarding means measures or controls that are prescribed to protect information.

Voice means all oral information regardless of transmission protocol.

(b) Safeguarding Information. Without limiting any other legal or contractual obligations, contractor shall implement and maintain reasonable and appropriate administrative, physical, and technical safeguards (including without limitation written policies and procedures) for protection of the security, confidentiality and integrity of the government information in its possession.