ESBD_359249_1715701723112_ATTACHMENT B - Sample Contract.pdf

ATTACHMENT B:

SAMPLE CONTRACT

NOT FOR EXECUTION

STATE OF TEXAS SERVICES AGREEMENT

Point of Sale System COUNTY OF TRAVIS Contract #2024-XX

I. CONTRACTING PARTIES:

This Agreement is entered into by and between the State Preservation Board (SPB), an agency of the State of Texas, located at 201 E. 14th St., Ste. 950, Austin, Texas 78701 and ___________________ (Contractor), located at __________________________for a cloud point of sale system as described more fully in SPB RFP #809-24-0006.

II. SCOPE OF WORK:

ALL SERVICES MUST COMPLY WITH STATE OF TEXAS ACCESSIBILITY STANDARDS FOR

ELECTRONIC AND INFORMATION RESOURCES SPECIFIED IN 1 TAC CHAPTER 206 AND 1 TAC

CHAPTER 213

Contractor shall provide to SPB all of the services and deliverables described in and in the manner required by all of the following documents:

• this contract document; including Attachment A-1

• SPB's RFP #809-24-0006 (Exhibit A)

• Contractor's Proposal including any HUB requirements (Exhibit B)

All of the above are attached to and incorporated as part of this Contract for all purposes. In the case of conflicts between this document and any of the above attachments, priority shall be in the order as listed above.

III. TERM OF AGREEMENT:

This Agreement shall be effective as of the date executed by the last party and shall terminate on ______________________ unless extended by the parties or terminated earlier as provided in the Terms and Conditions.

IV. CONTRACT AMOUNT:

The total amount of this contract shall not exceed $_________________; all costs and services listed in the RFP and response must be included within this amount.

Invoices must be itemized based on the budget categories listed below. The Contractor shall submit itemized monthly invoices for all services completed, delivered to, and accepted by SPB, per the Contract requirements. Payments to Contractor will be made within thirty (30) days from latter of services performed or receipt of a valid, uncontested invoice in accordance with

___________________ SPB #2024-xx Page 2 the Texas Government Code, Chapter 2251, Texas Prompt Payment Act.

To receive payment, Contractor must submit an invoice to SPB. The invoice format must be acceptable to the SPB and must include the following:

1. Contractor’s name and mailing address;

2. Name and telephone number of a person designated by Contractor to answer questions regarding the invoice;

3. SPB Contract Number;

4. Valid Texas Identification number (TIN) issued by the Comptroller of Public Accounts;

5. Description of each item for the goods/services listed on the Contract in sufficient detail to identify the order that relates to the invoice; and

6. Failure to submit “HUB Subcontracting Plan Progress Assessment Report” form with each invoice will cause rejection of the invoice by SPB and its return to Contractor. A copy of the required report is available at http://www.window.state.tx.us/procurement/prog/hub/hub-forms/ and attached as Exhibit D.

Please send invoices to:

State Preservation Board Attn: Accounting Dept.

P.O. Box 13286, Austin, TX 78711 TSPB.accounting@tspb.state.tx.us

V. KEY PERSONNEL:

Contractor may not change or substitute the key personnel identified in its Proposal without the prior written consent of the SPB.

VI. NOTICE:

Any notice required or permitted to be given pursuant to the Agreement shall be in writing and sent to the address set forth below. Notice shall be deemed delivered on: (i) the date of delivery if delivered by email, facsimile transmission, mailed by registered or certified mail, or hand delivered, or (ii) three business days after being mailed via United States Postal Service.

SPB: _____________________

PO Box13286 Austin, Texas 78711-3286

Contractor: _________________

Project Lead: _______________

Training and Onboarding: _____________

Technical Services: __________________

VII. PROJECT SCHEDULE AND DELIVERABLES:

http://www.window.state.tx.us/procurement/prog/hub/hub-forms/ProgressAssessmentReportForm.xls http://www.window.state.tx.us/procurement/prog/hub/hub-forms/

___________________ SPB #2024-xx Page 3

See Attachment A to this contract and/or RFP.

VIII. RIGHTS AND OWNERSHIP:

A. Definitions

1.“ Work Product” means any and all deliverables produced by Contractor for SPB pursuant to this Contract, including any and all tangible or intangible items or things that have been or will be prepared, created, developed, invented or conceived at any time following the effective date of the Contract, including but not limited to the website and any (i) works of authorship (such as manuals, instructions, printed material, graphics, artwork, images, illustrations, photographs, computer programs, computer software, scripts, HTML, object code, source code or code in any computer language, flow charts, notes, outlines, lists, compilations, manuscripts, writings, pictorial materials, schematics, formulae, processes, algorithms, data, information, multimedia files, text web pages or web sites, other written or machine readable expression of such works fixed in any tangible media, and all other copyrightable works), (ii) trademarks, service marks, trade dress, trade names, logos, or other indicia of source or origin, (iii) ideas, designs, concepts, personality rights, methods, processes, techniques, apparatuses, inventions, formulas, discoveries, or improvements, including any patents, trade secrets and know-how, (iv) domain names, (v) any copies, and similar or derivative works to any of the foregoing, (vi) all documentation and materials related to any of the foregoing,

(vii) all other goods, services or deliverables to be provided to SPB under the Contract, and (viii) all Intellectual Property Rights in any of the foregoing, and which are or were created, prepared, developed, invented or conceived for the use or benefit of SPB in connection with this Contract, or with funds appropriated by or for SPB or SPB’s benefit:

(a) by any Contractor personnel or SPB personnel, or (b) any SPB personnel who then became personnel to Contractor or any of its affiliates or subcontractors, where, although creation or reduction-to-practice is completed while the person is affiliated with Contractor or its personnel, any portion of same was created, invented or conceived by such person while affiliated with SPB.

2. “Intellectual Property Rights” means the worldwide legal rights or interests evidenced by or embodied in: (i) any idea, design, concept, personality right, method, process, technique, apparatus, invention, discovery, or improvement, including any patents, trade secrets, and know-how; (ii) any work of authorship, including any copyrights, moral rights or neighboring rights; (iii) any trademark, service mark, trade dress, trade name, or other indicia of source or origin; (iv) domain name registrations;

and (v) any other proprietary or similar rights. The Intellectual Property Rights of a party include all worldwide legal rights or interests that the party may have acquired by assignment or license with the right to grant sublicenses.

3. “Third Party IP” means the Intellectual Property Rights of any third party not a party to this Contract, and which is not directly or indirectly providing any goods or services to SPB under this Contract.

4. “Contractor IP” shall mean all tangible or intangible items or things, including the Intellectual Property Rights therein, created or developed by Contractor (a) prior to

___________________ SPB #2024-xx Page 4 providing any Services or Work Product to SPB and prior to receiving any documents, materials, information or funding from or on behalf of SPB relating to the Services or Work Product, or (b) after the Effective Date of the Contract if such tangible or intangible items or things were independently developed by Contractor outside Contractor’s provision of Services or Work Product for SPB hereunder and were not created, prepared, developed, invented or conceived by any SPB personnel who then became personnel to Contractor or any of its affiliates or subcontractors, where, although creation or reduction-to-practice is completed while the person is affiliated with Contractor or its personnel, any portion of same was created, invented or conceived by such person while affiliated with SPB.

B. Ownership. As between Contractor and SPB, the Work Product and Intellectual Property Rights therein are and shall be owned exclusively by SPB, and not Contractor. Contractor specifically agrees that the Work Product shall be considered “works made for hire” and that the Work Product shall, upon creation, be owned exclusively by SPB.

To the extent that the Work Product, under applicable law, may not be considered works made for hire, Contractor hereby agrees that the Contract effectively transfers, grants, conveys, assigns, and relinquishes exclusively to SPB all right, title and interest in and to all ownership rights in the Work Product, and all Intellectual Property Rights in the Work Product, without the necessity of any further consideration, and SPB shall be entitled to obtain and hold in its own name all Intellectual Property Rights in and to the Work Product. Contractor acknowledges that Contractor and SPB do not intend Contractor to be a joint author of the Work Product within the meaning of the Copyright Act of 1976. SPB shall have access, during normal business hours (Monday thru Friday, 8AM to 5PM) and upon reasonable prior notice to Contractor, to all Contractor materials, premises and computer files containing the Work Product. Contractor and SPB, as appropriate, will cooperate with one another and execute such other documents as may be reasonably appropriate to achieve the objectives herein. No license or other right is granted hereunder to any Third Party IP, except as may be incorporated in the Work Product by Contractor.

C. Further Actions. Contractor, upon request and without further consideration, shall perform any acts that may be deemed reasonably necessary or desirable by SPB to evidence more fully the transfer of ownership and/or registration of all Intellectual Property Rights in all Work Product to SPB to the fullest extent possible, including but not limited to the execution, acknowledgement and delivery of such further documents in a form determined by SPB. In the event SPB shall be unable to obtain Contractor’s signature due to the dissolution of Contractor or Contractor’s unreasonable failure to respond to SPB’s repeated requests for such signature on any document reasonably necessary for any purpose set forth in the foregoing sentence, Contractor hereby irrevocably designates and appoints SPB and its duly authorized officers and agents as Contractor’s agent and Contractor’s attorney-in-fact to act for and in Contractor’s behalf and stead to execute and file any such document and to do all other lawfully permitted acts to further any such purpose with the same force and effect as if executed and delivered by Contractor, provided however that no such grant of right to SPB is applicable if Contractor fails to execute any document due to a good faith dispute by Contractor with respect to such document. It is understood that such power is coupled with an interest and is therefore irrevocable. SPB shall have the full and sole power to prosecute such applications and to take all other action concerning the Work Product, and Contractor shall cooperate, at SPB’s sole expense, in the preparation and prosecution of all such applications and in any legal actions and proceedings concerning the Work Product.

___________________ SPB #2024-xx Page 5

D. Waiver of Moral Rights. Contractor hereby irrevocably and forever waives, and agrees never to assert, any Moral Rights in or to the Work Product which Contractor may now have or which may accrue to Contractor’s benefit under U.S. or foreign copyright or other laws and any and all other residual rights and benefits which arise under any other applicable law now in force or hereafter enacted. Contractor acknowledges the receipt of equitable compensation for its assignment and waiver of such Moral Rights. The term “Moral Rights” shall mean any and all rights of paternity or integrity of the Work Product and the right to object to any modification, translation or use of the Work Product, and any similar rights existing under the judicial or statutory law of any country in the world or under any treaty, regardless of whether or not such right is denominated or referred to as a moral right.

E. Confidentiality. All documents, information and materials forwarded to Contractor by SPB for use in and preparation of the Work Product, shall be deemed the confidential information of SPB, and subject to the license granted by SPB to Contractor under sub-paragraph H. hereunder, Contractor shall not use, disclose, or permit any person to use or obtain the Work Product, or any portion thereof, in any manner without the prior written approval of SPB.

F. Injunctive Relief. The Contract is intended to protect SPB’s proprietary rights pertaining to the Work Product, and the Intellectual Property Rights therein, and any misuse of such rights would cause substantial and irreparable harm to SPB’s business. Therefore, Contractor acknowledges and stipulates that a court of competent jurisdiction may immediately enjoin any material breach of the intellectual property, use, and confidentiality provisions of this Contract, upon a request by SPB, without requiring proof of irreparable injury as same should be presumed.

G. Return of Materials Pertaining to Work Product. Upon the request of SPB, but in any event upon termination or expiration of this Contract or a Statement of Work, Contractor shall surrender to SPB all documents and things pertaining to the Work Product, including but not limited to drafts, memoranda, notes, records, drawings, manuals, computer software, reports, data, and all other documents or materials (and copies of same) generated or developed by Contractor or furnished by SPB to Contractor, including all materials embodying the Work Product, any SPB confidential information, or Intellectual Property Rights in such Work Product, regardless of whether complete or incomplete. This section is intended to apply to all Work Product as well as to all documents and things furnished to Contractor by SPB or by anyone else that pertains to the Work Product.

H. Contractor License to Use. SPB hereby grants to Contractor a non-transferable, non-exclusive, royalty-free, fully paid-up license to use any Work Product solely as necessary to provide the Services to SPB. Except as provided in this Section, neither Contractor nor any Subcontractor shall have the right to use the Work Product in connection with the provision of services to its other customers without the prior written consent of SPB, which consent may be withheld in SPB’s sole discretion.

I. Third-Party IP. Contractor agrees obtain written approval from SPB before including any Third Party IP. Contractor shall provide SPB with documentation indicating a third party’s written approval for Contractor to use any Third Party IP that may be embodied or reflected in the Work Product. Contractor will obtain all necessary permissions, licenses, and rights clearances and will perform all pertinent patent, trademark and copyright searches and explore securing releases for any Third Party IP identified by Contractor for inclusion in the Work Product.

___________________ SPB #2024-xx Page 6

Contractor will provide written documentation of all applicable rights, clearances, and licenses.

The total cost of obtaining such rights and licenses shall be included in the budget referenced above. Contractor is solely responsible for identifying and obtaining properties that can be obtained within this budget. SPB will be responsible for securing the rights to any Third Party IP identified by SPB for inclusion in the Project.

J. Agreement with Subcontractors Contractor agrees that it shall have written agreement(s) that are consistent with the provisions hereof related to Work Product and Intellectual Property Rights with any employees, agents, consultants, contractors or subcontractors providing Services or Work Product pursuant to the Contract, prior to their providing such Services or Work Product, and that it shall maintain such written agreements at all times during performance of this Contract, which are sufficient to support all performance and grants of rights by Contractor. Copies of such agreements shall be provided to the SPB promptly upon request.

K. License to SPB. Contractor grants to SPB, a perpetual, irrevocable, royalty free license, solely for the SPB’s internal business purposes, to use, copy, modify, display, perform (by any means), transmit and prepare derivative works of any Contractor IP embodied in or delivered to SPB in conjunction with the Work Product. The foregoing license includes the right to sublicense third parties, solely for the purpose of engaging such third parties to assist or carryout SPB’s internal business use of the Work Product. Except for the preceding license, all rights in Contractor IP remain in Contractor.

IX. TECHNOLOGY ACCESS CLAUSE :

(A) Effective September 1, 2006 state agencies and institutions of higher education shall procure products which comply with the State of Texas Accessibility requirements for Electronic and Information Resources specified in 1 TAC Chapter 206 and 1 TAC Chapter 213 when such products are available in the commercial marketplace or when such products are developed in response to a procurement solicitation.

(B) The Contractor shall provide SPB with the URL to its Voluntary Product Accessibility Template (VPAT) for reviewing compliance with the State of Texas Accessibility requirements (based on the federal standards established under Section 508 of the Rehabilitation Act), or indicate that the product/service accessibility information is available from the General Services Administration "Buy Accessible Wizard" (http://www.buyaccessible.gov). Vendors not listed with the "Buy Accessible Wizard" or supplying a URL to their VPAT must provide SPB with a report that addresses the same accessibility criteria in substantively the same format.

Additional information regarding "Buy Accessible Wizard" or obtaining a copy of the VPAT is located at http://www.section508.gov/.

(C) Contractor represents and warrants (the "EIR Accessibility Warranty") that the electronic and information resources and all associated information, documentation, and support (collectively the "EIRs") that it provides the SPB under the Contract comply with the applicable requirements set forth in 1 Texas Administrative Code Chapters 206 and 213. To the extent Contractor becomes aware that the EIRs, or any portion thereof, do not comply with the EIR Accessibility Warranty, then Contractor represents and warrants that it will, at no cost to SPB, either (1) perform all the necessary remediation to make the EIRs satisfy the EIR Accessibility Warranty or

(2) replace the EIRs with new EIRs that satisfy the EIR Accessibility Warranty. In the event that Contractor fails or is unable to do so, then SPB may terminate the Contract and Contractor will http://www.buyaccessible.gov/ http://www.section508.gov/

___________________ SPB #2024-xx Page 7 refund to the SPB all amounts the SPB has paid under the Contract within thirty (30) days after the termination date.

X. TECHNICAL, LICENSING AND SUPPORT REQUIREMENTS:

(A)Be a cloud POS system delivered entirely over the internet accessed through common web browsers. The system must receive software upgrades remotely over the internet, without the SPB executing upgrades.

(B)Have non-proprietary operating system and hardware requirements. The system will be platform and device agnostic, able to run on Apple and Windows operating systems, and on any web enabled device, including desktops, laptops, tablets, and smartphones.

(C )Have the ability to take transactions in an offline mode.

(D) Be EMV and NFC capable.

(E) Be compatible with the nova/Elavon platform for credit card processing and communication.

(F) Be capable of supporting separate credit card merchant accounts for each SPB retail location.

(G)Have a dedicated representative for service who can be contacted directly and who will coordinate maintenance for the system.

(H) Be PCI-DSS 3.1 Level 1 compliant as verified by a Qualified Security Assessor (QSA) or completely out of PCI scope. Submit Certificate of Validation with proposal or describe method of data handling that renders the system out of scope.

(I ) Be hosted in a data center with at least two locations and conforms to Service Organization Controls Standards SSAE 16 (Statement on Standards for Attestation Engagements No. 16, formerly SAS 70 Type II.)

(J) Support multi-channel order management, with the ability to house separate channel sales and inventory in addition to multiple locations within a channel. The system will be able to receive transaction files from non-retail channels of business, such as online stores, online parking reservation and ticketing systems, parking garage systems, or other revenue streams for sales reporting by channel.

(K) Have flexible, real-time reporting, with the ability to create custom queries on all available item, customer, and sales fields, on demand, using a simple user interface.

(L) Use REST APIs and have APIs available for data in the below listed four (4) integrations.

(M) Be able to integrate with Upshot Commerce.

(N) Be able to integrate with Blackbaud Altru.

(O) Be able to integrate with Constant Contact.

(P) Be able to integrate with or export data to Sage MIP/Abila.

XI. STANDARD TERMS AND CONDITIONS:

A. Anti Trust Affirmation: The undersigned affirms under penalty of perjury of the laws of the State of Texas that (1) in connection with this Response, neither I nor any representative of the

Respondent have violated any provision of the Texas Free Enterprise and Antitrust Act, Tex. Bus.

& Comm. Code Chapter 15; (2) in connection with this Response, neither I nor any representative of the Respondent have violated any federal antitrust law; and (3) neither I nor any representative

___________________ SPB #2024-xx Page 8 of the Respondent have directly or indirectly communicated any of the contents of this Response to a competitor of the Respondent or any other company, corporation, firm, partnership or individual engaged in the same line of business as the Respondent.

B. Assignment: Respondent shall not assign its rights under the contract or delegate the performance of its duties under the contract without prior written approval from the Agency. Any attempted assignment in violation of this provision is void and without effect.

C. Buy Texas: In accordance with Section 2155.4441 of the Texas Government Code, Respondent agrees that during the performance of a contract for services it shall purchase products and materials produced in Texas when they are available at a price and time comparable to products and materials produced outside the state.

D. Changes in Law and Compliance with Laws: Any alteration, additions or deletions to the terms of the contract that are required by changed in federal or state law or regulations are automatically incorporated into the contract without written amendment hereto, and shall become effective on the date designated by such lwa or by regulation.

E. Child Support Obligation Affirmation: Under Section 231.006 of the Family Code, the vendor or applicant certifies that the individual or business entity named in this contract, bid or application is not ineligible to receive the specified grant, loan, or payment and acknowledges that this contract may be terminated and payment may be withheld if this certification is inaccurate in addition to other remedies set out in 231.006(f).

F. COVID-19 Vaccine Passport Prohibition: Respondent certifies that it does not require its customers to provide any documentation certifying the customer’s COVID-19 vaccination or post-transmission recovery on entry to, to gain access to, or to receive service from the

Respondent’s business. Respondent acknowledges that such a vaccine or recovery requirement would make Respondent ineligible for a state-funded contract.

G. Damage to Government Property: In the event of loss, destruction or damage to SPB or State of

Texas property by Respondent or Respondent’s employee or subcontractor, Respondent shall be liable for the full cost of repair, reconstruction and/or replacement of the lost, destroyed or damaged property. Respondent will reimburse SPB/State of Teas for such damage within 10 calendar days of Agency notice of loss/damage.

H. Dealings with Public Servants Affirmation: Respondent has not given, offered to give, nor intends to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with the submitted Response.

I. Debts and Delinquencies Affirmation: Respondent agrees that any payments due under the contract shall be applied towards any debt or delinquency that is owed to the State of Texas.

Respondent agrees that any payments due under the contract shall be directly applied towards eliminating any debt or delinquency it has to the State of Texas including, but not limited to, delinquent taxes, delinquent student loan payments, and delinquent child support.

J. Disaster Recovery Plan: Upon agency request, Respondent shall provide descriptions of its business continuity and disaster recovery plans.

K. Disclosure of Prior State Employment: In accordance with Section 2254.033 of the Texas

Government Code, relating to consulting services, Respondent certifies that it does not employ an individual who has been employed by Agency or another agency at any time during the two years

___________________ SPB #2024-xx Page 9 preceding the submission of the Response or, in the alternative, Respondent has disclosed in its

Response the following: (i) the nature of the previous employment with Agency or the other agency; (ii) the date the employment was terminated; and (iii) the annual rate of compensation for the employment at the time of its termination.

L. Dispute Resolution : The dispute resolution process provided for in Chapter 2260 of the Texas

Government Code must be used to attempt to resolve any dispute arising under the contract.

Disputes arising under the contract shall be resolved in accordance with the dispute resolution process provided in Chapter 2260 of the Texas Government Code. Or The dispute resolution process provided for in Chapter 2260 of the Texas Government Code must be used to attempt to resolve any dispute arising under the contract. If the Contractor’s claim for breach of Contract cannot be resolved informally with the Agency, the claim shall be submitted to the negotiation process provided in Chapter 2260. To initiate the process, the Contractor shall submit written notice, as required by Chapter 2260, to the individual identified in the Contract for receipt of notices. Any informal resolution efforts shall in no way modify the requirements or toll the timing of the formal written notice of a claim for breach of contract required under §2260.051 of the

Texas Government Code. Compliance by the Contractor with Chapter 2260 is a condition precedent to the filing of a contested case proceeding under Chapter 2260. The contested case process provided in Chapter 2260 is the Contractor’s sole and exclusive process for seeking a remedy for an alleged breach of Contract by the Agency if the parties are unable to resolve their disputes as described above. Notwithstanding any other provision of the Contract to the contrary, unless otherwise requested or approved in writing by the Agency, the Contractor shall continue performance and shall not be excused from performance during the period any breach of contract claim or while the dispute is pending. However, the Contractor may suspend performance during the pendency of such claim or dispute if the Contractor has complied with all provisions of

Section 2251.051, Texas Government Code, and such suspension of performance is expressly applicable and authorized under that law.

M. Electrical Items: All electrical items myst meet all applicable OSHA standards and regulations, and bear the appropriate listing from the Underwriters laboratory(UL), Factory Mutual Resource

Corporation (FMRC) or National Electrical Manufacturers Association (NEMA).

N. Energy Company Boycotts: If Respondent is required to make a verification pursuant to Section

2276.002 of the Texas Government Code, Respondent represents and warrants that: (1) it does not, and will not for the duration of the contract, boycott energy companies or (2) the verification required by Section 2274.002 of the Texas Government Code does not apply to the contract. If circumstances relevant to this provision change during the course of the contract, Respondent shall promptly notify Agency.

O. Entities that Boycott Israel: Respondent represents and warrants that (1) it does not, and shall not for the duration of the contract, boycott Israel or (2) the verification required by Section 2271.002 of the Texas Government Code does not apply to the contract. If circumstances relevant to this provision change during the course of the contract, Respondent shall promptly notify Agency.

P. Equal Employoment Opportunity: Respondent represents and warrants its compliance with all applicable duly enacted state and federal laws governing dqual employment opportunities.

Q. E-Verify Program: Respondent certifies that for contracts for services, Respondent shall utilize the U.S. Department of Homeland Security’s E-Verify system during the term of the contract to determine the eligibility of:

1. all persons employed by Respondent to perform duties within Texas; and

2. all persons, including subcontractors, assigned by Respondent to perform work pursuant the contract within the United States of America.

___________________ SPB #2024-xx Page 10

R. Excess Obligations Prohibited: The contract is subject to termination or cancellation, without penalty to Agency, either in whole or in part, subject to the availability of state funds. Any contract resulting from this Solicitation is contingent upon the continued availability of lawful appropriations by the Texas Legislature.

S. Excluded Parties: Respondent certifies that it is not listed in the prohibited vendors list authorized by Executive Order No. 13224, “Blocking Property and Prohibiting Transactions with Persons

Who Commit, Threaten to Commit, or Support Terrorism”, published by the United States

Department of the Treasury, Office of Foreign Assets Control.

T. Executive Head of a State Agency Affirmation: In accordance with Section 669.003 of the Texas

Government Code, relating to contracting with the executive head of a state agency, Respondent certifies that it is not (1) the executive head of the Agency, (2) a person who at any time during the four years before the date of the contract was the executive head of the Agency, or (3) a person who employs a current or former executive head of the Agency.

U. False Statements: Respondent represents and warrants that all statements and information prepared and submitted in this document are current, complete, true, and accurate. Submitting a Response with a false statement or material misrepresentations made during the performance of a contract is a material breach of contract and may void the submitted Response and any resulting contract.

V. Financial Participation Prohibited Affirmation: Pursuant to Section 2155.004(a) of the Texas Government Code, Respondent certifies that neither Respondent nor any person or entity represented by Respondent has received compensation from Agency to participate in the preparation of the specifications or solicitation on which this Response or contract is based.

Under Section 2155.004(b) of the Texas Government Code, Respondent certifies that the individual or business entity named in this Response or contract is not ineligible to receive the specified contract and acknowledges that the contract may be terminated and payment withheld if this certification is inaccurate

W. Firearm Entities and Trade Associations Discrimination: If applicable, Respondent verifies that:

(1) it does not, and will not for the duration of the contract, have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association or (2) the verification required by Section 2274.002 of the Texas Government Code does not apply to the contract. If circumstances relevant to this provision change during the course of the contract, Respondent shall promptly notify Agency.

X. Foreign Terrorist Organizations: Respondent represents and warrants that it is not engaged in business with Iran, Sudan, or a foreign terrorist organization, as prohibited by Section 2252.152 of the Texas Government Code.

Y. Former Agency Employees: In accordance with Section 2252.901 of the Texas Government Code, Respondent represents and warrants that none of its employees including, but not limited to, those authorized to provide services under the contract, were former employees of the Agency during the twelve (12) month period immediately prior to the date of execution of the contract.

Z. Governing Law and Venue The contract shall be governed by and construed in accordance with the laws of the State of Texas, without regard to the conflicts of law provisions. The venue of any suit arising under the contract is fixed in any court of competent jurisdiction of Travis County, Texas, unless the specific venue is otherwise identified in a statute which directly names or otherwise identifies its applicability to the contracting Agency.

AA. Historically Underutilized Businesses (HUBs): In accordance with State law, it is SPB’s policy to assist HUBs, whether minority or women-owned, whenever possible, to participate in providing

___________________ SPB #2024-xx Page 11 goods and services to the agency. SPB encourages those parties with whom it contracts for the provision of goods and services to adhere to this same philosophy in selecting subcontractors to assist in fulfilling Contractor’s obligations with SPB.

BB. Human Trafficking Prohibition: Under Section 2155.0061 of the Texas Government Code, the Respondent certifies that the individual or business entity named in this Response or contract is not ineligible to receive the specified contract and acknowledges that this contract may be terminated and payment withheld if this certification is inaccurate.

CC. Indemnification: RESPONDENT SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE STATE

OF TEXAS AND AGENCY, AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES,

CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM ANY AND ALL LIABILITY, ACTIONS,

CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES

ARISING OUT OF, OR RESULTING FROM ANY ACTS OR OMISSIONS OF RESPONDENT OR ITS

AGENTS, EMPLOYEES, SUBCONTRACTORS, ORDER FULFILLERS, OR SUPPLIERS OF

SUBCONTRACTORS IN THE EXECUTION OR PERFORMANCE OF THE CONTRACT AND ANY

PURCHASE ORDERS ISSUED UNDER THE CONTRACT. THE DEFENSE SHALL BE COORDINATED BY

RESPONDENT WITH THE OFFICE OF THE TEXAS ATTORNEY GENERAL WHEN TEXAS STATE

AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND RESPONDENT MAY NOT AGREE TO

ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE

TEXAS ATTORNEY GENERAL. RESPONDENT AND AGENCY AGREE TO FURNISH TIMELY WRITTEN

NOTICE TO EACH OTHER OF ANY SUCH CLAIM.

DD. Indemnification (IP): RESPONDENT SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS AGENCY

AND THE STATE OF TEXAS FROM AND AGAINST ANY AND ALL CLAIMS, VIOLATIONS,

MISAPPROPRIATIONS OR INFRINGEMENT OF ANY PATENT, TRADEMARK, COPYRIGHT, TRADE

SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS AND/OR OTHER INTANGIBLE PROPERTY,

PUBLICITY OR PRIVACY RIGHTS, AND/OR IN CONNECTION WITH OR ARISING FROM: (1) THE

PERFORMANCE OR ACTIONS OF RESPONDENT PURSUANT TO THIS CONTRACT; (2) ANY

DELIVERABLE, WORK PRODUCT, CONFIGURED SERVICE OR OTHER SERVICE PROVIDED

HEREUNDER; AND/OR (3) AGENCY’S AND/OR RESPONDENT’S USE OF OR ACQUISITION OF ANY

REQUESTED SERVICES OR OTHER ITEMS PROVIDED TO AGENCY BY RESPONDENT OR OTHERWISE

TO WHICH AGENCY HAS ACCESS AS A RESULT OF RESPONDENT’S PERFORMANCE UNDER THE

CONTRACT. RESPONDENT AND AGENCY AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH

OTHER OF ANY SUCH CLAIM. RESPONDENT SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE,

INCLUDING ATTORNEYS’ FEES. THE DEFENSE SHALL BE COORDINATED BY RESPONDENT WITH

THE OFFICE OF THE TEXAS ATTORNEY GENERAL(OAG) WHEN TEXAS STATE AGENCIES ARE

NAMED DEFENDANTS IN ANY LAWSUIT AND RESPONDENT MAY NOT AGREE TO ANY

SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM OAG. IN ADDITION,

RESPONDENT WILL REIMBURSE AGENCY AND THE STATE OF TEXAS FOR ANY CLAIMS, DAMAGES,

COSTS, EXPENSES OR OTHER AMOUNTS, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ FEES

AND COURT COSTS, ARISING FROM ANY SUCH CLAIM. IF AGENCY DETERMINES THAT A

CONFLICT EXISTS BETWEEN ITS INTERESTS AND THOSE OF RESPONDENT OR IF AGENCY IS

REQUIRED BY APPLICABLE LAW TO SELECT SEPARATE COUNSEL, AGENCY WILL BE PERMITTED TO

SELECT SEPARATE COUNSEL AND RESPONDENT WILL PAY ALL REASONABLE COSTS OF AGENCY’S

COUNSEL.

EE. No Conflicts of Interest: Respondent represents and warrants that the provision of goods and services or other performance under the contract will not constitute an actual or potential conflict of interest or reasonably create an appearance of impropriety

FF. Prior Disaster Relief Contract Violation: Sections 2155.006 and 2261.053 of the Texas Government Code, prohibit state agencies from accepting a Response or awarding a contract that includes proposed financial participation by a person who, in the past five years, has been

___________________ SPB #2024-xx Page 12 convicted of violating a federal law or assessed a penalty in connection with a contract involving relief for Hurricane Rita, Hurricane Katrina, or any other disaster, as defined by Section 418.004 of the Texas Government Code, occurring after September 24, 2005. Under Sections 2155.006 and 2261.053 of the Texas Government Code, Respondent certifies that the individual or business entity named in this Response or contract is not ineligible to receive the specified contract and acknowledges that this contract may be terminated and payment withheld if this certification is inaccurate.

GG. Public Information Act Respondent understands that Agency will comply with the Texas Public Information Act (Chapter 552 of the Texas Government Code) as interpreted by judicial rulings and opinions of the Attorney General of the State of Texas. Information, documentation, and other material in connection with this Solicitation or any resulting contract may be subject to public disclosure pursuant to the Texas Public Information Act. In accordance with Section

2252.907 of the Texas Government Code, Respondent is required to make any information created or exchanged with the State pursuant to the contract, and not otherwise excepted from disclosure under the Texas Public Information Act, available in a format that is accessible by the public at no additional charge to the State.

HH. Independent Contractor: Respondent acknowledges and agrees that it is furnishing products and services in the capacity of an independent contractor and that Respondent and its personnel are not employees of the Agency or the State of Texas.

II. Limitation on Authority: Respondent shall have no authority to act for or on behalf of Agency or the State of Texas except as expressly provided for in the contract; no other authority, power or use is granted or implied. Respondent may not incur any debt, obligation, expense or liability of any kind on behalf of Agency or the State of Texas.

JJ. No Implied Waiver: The failure of a Party to insist at any time upon the strict performance of any covenant or agreement or to exercise any option, right, power, or remedy contained in the contract shall not be construed as a waiver or a relinquishment thereof for the future.

KK. No Third-Party Beneficiaries: The contract is made solely and specifically among and for the benefit of the parties named herein and their respective successors and assigns, and no other person shall have any right, interest, or claims hereunder or be entitled to any benefits pursuant to or on account of the contract as a third-party beneficiary or otherwise.

LL. Records Retention:Respondent shall maintain and retain all records relating to the performance of the contract including supporting fiscal documents adequate to ensure that claims for contract funds are in accordance with applicable State of Texas requirements. These records will be maintained and retained by Respondent for a period of seven (7) years after the contract expiration date or until all audit, claim, and litigation matters are resolved, whichever is later.

MM. Signature Authority: By submitting the Response, Respondent represents and warrants that the individual submitting this document and the documents made part of this Response is authorized to sign such documents on behalf of the Respondent and to bind the Respondent under any contract that may result from the submission of this Response. The undersigned certifies that I am duly authorized to submit this Response and execute a contract on my own behalf or on behalf of the Respondent listed below. Or Other text that specifies that the Respondent signatory is authorized to act on behalf of the Respondent in submitting the Response or executing the contract.

NN. State Auditor’s Right to Audit: Pursuant to Section 2262.154 of the Texas Government Code, the state auditor may conduct an audit or investigation of any entity receiving funds from the state directly under any contract or indirectly through a subcontract under the contract. The acceptance of funds by the Respondent or any other entity or person directly under the contract or indirectly through a subcontract under the contract acts as acceptance of the authority of the state auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. Under the direction of the legislative audit

___________________ SPB #2024-xx Page 13 committee, the Respondent or other entity that is the subject of an audit or investigation by the state auditor must provide the state auditor with access to any information the state auditor considers relevant to the investigation or audit. Respondent shall ensure that this paragraph concerning the authority to audit funds received indirectly by subcontractors through the contract and the requirement to cooperate is included in any subcontract it awards.

OO. Suspension and Debarment: Respondent certifies that it and its principals are not suspended or debarred from doing business with the state or federal government as listed on the State of Texas Debarred Vendor List maintained by the Texas Comptroller of Public Accounts and the System for Award Management (SAM) maintained by the General Services Administration.

PP. Severability: If any provision of the contract is construed to be illegal or invalid, such construction will not affect the legality or validity of any of its other provisions. The illegal or invalid provision will be deemed severable and stricken from the contract as if it had never been incorporated herein, but all other provisions will continue in full force and effect.

QQ. Sovereign Immunity: Nothing in the contract shall be construed as a waiver of the Agency’s or the State’s sovereign immunity. This contract shall not constitute or be construed as a waiver of any of the privileges, rights, defenses, remedies, or immunities available to the Agency or the State of Texas. The failure to enforce, or any delay in the enforcement, of any privileges, rights, defenses, remedies, or immunities available to Agency or the State of Texas under the contract or under applicable law shall not constitute a waiver of such privileges, rights, defenses, remedies, or immunities or be considered as a basis for estoppel. Agency does not waive any privileges, rights, defenses, or immunities available to Agency by entering into the contract or by its conduct prior to or subsequent to entering into the contract.

RR. Subcontractors: Respondent may not subcontract any or all of the work and/or obligations due under the contract without prior written approval of the Agency. Subcontracts, if any, entered into by the Respondent shall be in writing and be subject to the requirements of the contract.

Should Respondent subcontract any of the services required in the contract, Respondent expressly understands and acknowledges that in entering into such subcontract(s), Agency is in no manner liable to any subcontractor(s) of Respondent. In no event shall this provision relieve Respondent of the responsibility for ensuring that the services performed under all subcontracts are rendered in compliance with the contract.

SS. Survival: Expiration or termination of the contract for any reason does not release Respondent from any liability or obligation set forth in the contract that is expressly stated to survive any such expiration or termination, that by its nature would be intended to be applicable following any such expiration or termination, or that is necessary to fulfill the essential purpose of the contract, including without limitation the provisions regarding warranty, indemnification, confidentiality, and rights and remedies upon termination.

TT. Taxes: Purchases made for State of Texas use are exempt from the State Sales Tax and Federal Excise Tax. Agency will furnish Tax Exemption Certificates upon request. Respondent represents and warrants that it shall pay all taxes or similar amounts resulting from the contract, including, but not limited to, any federal, State, or local income, sales or excise taxes of Respondent or its employees. Agency shall not be liable for any taxes resulting from the contract.

UU. Termination for Convenience: Agency reserves the right to terminate the contract at any time, in whole or in part, without cost or penalty, by providing thirty (30) calendar days’ advance written notice, if Agency determines that such termination is in the best interest of the state. In the event of such a termination, Respondent must, unless otherwise mutually agreed upon in writing, cease all work immediately upon the effective date of termination. Agency shall be liable for payments limited only to the portion of work Agency authorized in writing and which Respondent has completed, delivered to Agency, and which has been accepted by Agency. All such work shall have been completed, in accordance with contract requirements, prior to the

___________________ SPB #2024-xx Page 14 effective date of termination. Agency shall have no other liability, including no liability for any costs associated with the termination. O

VV. Technology Access Clause: Respondent expressly acknowledges that state funds may not be expended in connection with the purchase of an automated information system unless that system meets certain statutory requirements relating to accessibility by persons with visual impairment. Accordingly, Respondent represents and warrants to Agency that the technology provided to Agency for purchase is capable, either by virtue of features included within the technology or because it is readily adaptable by use with other technology, of: • providing equivalent access for effective use by both visual and non-visual means; • presenting information, including prompts used for interactive communications, in formats intended for nonvisual use; and • being integrated into networks for obtaining, retrieving, and disseminating information used by individuals who are not blind or visually impaired. For purposes of this Section, the phrase “equivalent access” means a substantially similar ability to communicate with or make use of the technology, either directly by features incorporated within the technology or by other reasonable means such as assistive devices or services which would constitute reasonable accommodations under the Americans With Disabilities Act or similar state or federal laws. Examples of methods by which equivalent access may be provided include, but are not limited to, keyboard alternatives to mouse commands and other means of navigating graphical displays, and customizable display appearance. In accordance with Section

2157.005 of the Texas Government Code, the Technology Access Clause contract provision remains in effect for any contract entered into before September 1, 2006.

WW. Terms and Conditions Attached to Response: Any terms and conditions attached to a Response will not be considered unless specifically referred to in the Response. TEX GOVT CODE § 2155.0012 EXCEPTION: Clause does not apply to contracts but is an Essential Clause for solicitations. This clause ensures that Responses received by the agency are complete prior to the closing date of the solicitation.

XX. Texas Bidder Affirmation: Respondent certifies that if a Texas address is shown as the address of the Respondent on this Response, Respondent qualifies as a Texas Bidder as defined in Section 2155.444(c) of the Texas Government Code.

YY. Unfair Business Practices: Respondent represents and warrants that it has not been the subject of allegations of Deceptive Trade Practices violations under Chapter 17 of the Texas Business and Commerce Code, or allegations of any unfair business practice in any administrative hearing or court suit and that Respondent has not been found to be liable for such practices in such proceedings.