ESBD_393011_1738043580576_Attachment D - Anticipated Contract (Reference Only).pdf

Student Success Acceleration Program (SSAP) Evaluation No. 781-5-03529A

Attachment D: Anticipated Contract (Reference Only)

THECB Contract No.: _____

STANDARD SERVICE CONTRACT

Section 1. Parties

This agreement (Contract) is entered into by and between the TEXAS HIGHER EDUCATION COORDINATING BOARD, a Texas state agency, hereinafter designated “THECB” and [Contracted Party], hereinafter designated “Contractor” or “Contracted Party.” At times, THECB and Contractor are referred to singularly as “Party” and collectively as “Parties.”

Receiving Agency: Texas Higher Education Coordinating Board 1801 N. Congress Ave.

Suite 12.200 Austin, Texas 78701

Contractor: [Contracted Party] [Contracted Party Address] [City, State Zip Code]

Section 2. Term of Contract

THECB shall pay Contractor for the reasonable and approved costs incurred by Contractor in connection with this Contract during the period beginning upon execution and ending on [Month, Day, Year] unless extended or terminated as otherwise provided for in this Contract (Contract Term). Subject to proper approvals, the Parties may amend this Contract to extend the Contract Term, provided both Parties agree in writing to do so, prior to the expiration date. Any extensions shall have the same terms and conditions, plus any approved changes.

Section 3. Purpose and Statement of Services to be Performed

3.1 Purpose

The purpose of this Contract is for Contractor to [Enter Purpose and Description].

3.2 Statement of Work

[Enter the Statement of Work, including budget information, payment requirements, reporting requirements, and monitoring language.]

Section 4. THECB Maximum Liability Under this Contract and Payment

4.1 Contract Amount

THECB’s total liability under this Contract shall not exceed the sum of $[enter dollar amount] (Contract Amount). This maximum liability includes any pre-authorized expenses incurred. Any changes to the maximum liability are subject to proper approvals.

4.2 Invoices

Contractor shall provide invoices to THECB for services performed. No payment shall be made under this Contract without the prior submission of detailed, correct invoices, accepted by THECB. All payments due to Contractor will be made pursuant to the Texas Prompt Payment Law, Texas Government Code §§ 2251.001-.055. The form of any invoice must comply with the specifications of THECB and must be submitted in the manner and with the documentation THECB may require. All invoices (which are to include reimbursement claims for expenses if authorized under this Contract) shall be submitted to THECB Program Manager, or their successor, who is listed in this Contract. Payments under this Contract are subject to the availability of appropriated funds. Submission of an invoice shall constitute Contractor’s certification that services and other obligations under the Contract have been performed in accordance with this Contract.

4.3 Payment Instructions

To receive payment, Contractor must submit an invoice to accountspayable@highered.texas.gov and the designated THECB Program Manager(s). The invoice must include the following minimum information:

1. Contractor’s mailing and e-mail (if applicable) address;

2. Contractor’s telephone number;

3. The name and telephone number of a person designated by Contractor to answer questions regarding the invoice;

4. THECB’s name, agency number (781), and delivery address;

5. The THECB purchase order number, if applicable;

6. The contract number or other reference number, if applicable;

7. A valid Texas identification number (TIN) issued by the comptroller;

8. A description of the goods or services, in sufficient detail to identify the order which relates to the invoice;

9. The unit numbers corresponding to the amount of the invoice, if applicable;

10. If submitting an invoice after receiving an assignment of a contract, the TIN of the original contractor and the TIN of the successor vendor; and

11. Other relevant information supporting and explaining the payment requested.

4.4 Direct Deposit

The Texas Comptroller of Public Accounts uses an electronic funds transfer system to make payments to vendors who choose to receive payment through the electronic funds transfer system, rather than by state warrant. If not already established to receive direct deposit payments from the state of Texas, vendors who choose to receive payment by electronic funds transfer should complete and submit the Vendor Direct Deposit Authorization located on the Comptroller’s website.

Section 5. General and Special Provisions of Contract, Certain Certifications

5.1 Contractor further certifies the following:

5.1.1 Former Agency Employees

Contractor represents and warrants that none of its employees including, but not limited to, those authorized to provide services under this Contract, were former employees of THECB during the twelve (12) month period immediately prior to the date of execution of this Contract.

5.1.2 Prior Disaster Relief Contract Violation

“Under Section 2155.006, Government Code, the vendor certifies that the individual or business entity named in this bid 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.” Tex.

Gov’t Code § 2155.006.

“Under Section 2261.053, Government Code, the contractor certifies that the individual or business entity named in this bid 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.” Tex.

Gov’t Code § 2261.053.

5.1.3 Disclosure of Potential Conflicts of Interest

Pursuant to Texas Government Code § 2261.252(b), “[a] state agency may not enter into a contract for the purchase of goods or services with a private vendor with whom any of the following agency employees or officials have a financial interest: (1) a member of the agency’s governing body; (2) the governing official, executive director, general counsel, chief procurement officer, or procurement director of the agency; or (3) a family member related to an employee or official described [above in] (1) or (2) within the second degree of affinity or consanguinity.”

5.1.4 Executive Head of a State Agency

In accordance with Texas Government Code § 669.003, relating to contracting with the executive head of a state agency, Contractor certifies that it is not (a) the executive head of THECB, (b) a person who at any time during the four years before the date of the contract was the executive head of THECB, or (c) a person who employs a current or former executive head of THECB.

5.1.5 Disclosure of Interested Parties

Pursuant to Texas Government Code § 2252.908, Contractor agrees to submit a disclosure of interested parties to THECB at the time Contractor submits the signed Contract to THECB. This section applies only to a contract of a governmental entity or state agency that either (a) requires an action or vote by the governing body of the entity or agency before the contract may be signed or (b) has a value of at least $1 million.

5.1.6 Felony Criminal Convictions

Contractor represents and warrants that Contractor has not and Contractor’s employees who will be involved in the Contract Project have not been convicted of a felony criminal offense, or that, if such a conviction has occurred, Contractor has fully advised THECB as to the facts and circumstances surrounding the conviction(s) and has received THECB’s prior written consent to proceed.

5.1.7 Certification Concerning Restricted Employment for Former State Officers or Employees

Pursuant to Texas Government Code § 572.069, Contractor certifies that is has not employed and will not employ a former THECB employee or state officer who participated in a procurement or contract negotiation for THECB involving Contractor within two years of the date this Contract is signed or the procurement is terminated or withdrawn.

5.1.8 Franchise Tax Certification

Contractor certifies that it is exempt or not delinquent in the payment of any franchise taxes owed the state of Texas under Texas Tax Code §§ 171.0001- .909. If Contractor is a qualifying business entity type per Texas Comptroller of Public Accounts guidelines and is not set up in the Texas Franchise system, Contractor must do so prior to contracting with the state of Texas.

5.1.9 Certification Concerning Dealing with Public Servants

Contractor 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 this Contract.

5.1.10 Certification Concerning Financial Participation

Texas Government Code § 2155.004 prohibits a person or entity from receiving a state contract if that person or entity received compensation for participating in preparing the solicitation or specification for the contract.

“Under Section 2155.004, Government Code, the vendor certifies that the individual or business entity named in this bid 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.” Tex.

Gov’t Code § 2155.004.

5.1.11 COVID-19 Vaccine Passport Prohibition

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

5.1.12 Critical Infrastructure Affirmation

Pursuant to Texas Government Code § 2274.0102, Contractor certifies that neither it nor its parent company, nor any affiliate of Contractor or its parent company, is: (1) majority owned or controlled by citizens or governmental entities of China, Iran, North Korea, Russia, or any other country designated by the Governor under Texas Government Code § 2274.0103, or

(2) headquartered in any of those countries.

5.1.13 Energy Company Boycotts (Only applicable to a contract that: (1) is with a company that has ten or more full-time employees; and (2) has a value of $100,000 or more that is to be paid wholly or partly from public funds of

THECB.)

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

5.1.14 Firearm Entities and Trade Association Discrimination (Only applicable to a contract that: (1) is with a company that has ten or more full-time employees; and (2) has a value of $100,000 or more that is to be paid wholly or partly from public funds of THECB.)

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

5.1.15 Cloud Computing Services

To the extent applicable and pursuant to Texas Government Code § 2054.0593, Contractor represents and warrants that it complies with the requirements of the state risk and authorization management program, Department of Information Resources’ Texas Risk and Authorization Management Program (TX-RAMP). Contractor agrees to maintain program compliance and certifications throughout the term of this Contract.

5.1.16 Signature Authority

Contractor represents and warrants that the individual submitting this document, and any other documents made part of this Contract, is authorized to sign such documents on behalf of the Contractor and to bind Contractor under this Contract.

Section 6. Terms and Conditions

6.1 Termination

Notwithstanding the termination or expiration of this Contract, the provisions of this Contract regarding confidentiality, indemnification, transition, records, right to audit and independent audit, property rights, dispute resolution, invoice and fee verification, and default shall survive the termination or expiration dates of this Contract.

6.1.1 Convenience of the State

THECB, in its sole discretion, may terminate this Contract upon one (1) calendar day’s written notice to Contractor. Such notice will be provided in accordance with section 6.28 of this Contract. In the event of such termination, Contractor shall, unless otherwise mutually agreed upon in writing, cease all work immediately upon the effective date of termination.

THECB will be liable only for payments for any goods and/or services ordered from Contractor before the termination date.

6.1.2 Termination for Cause

THECB may, by written notice to Contractor, immediately terminate this Contract for cause if: (a) THECB is not reasonably satisfied with Contractor’s services; (b) default or abandonment by Contractor occurs; or (c) Contractor fails to comply fully with any term or condition of this Contract, through no material fault of THECB. If THECB deems it appropriate under the circumstances, THECB will provide a three (3) business day advance written notice of intent to terminate to Contractor, and THECB will provide Contractor with an opportunity for consultation with THECB prior to termination during that three (3) business day period.

If Contractor fails or refuses to perform its obligations under this Contract, THECB may exercise any rights available to it by law or in equity. In the event THECB exercises its right to terminate for cause, Contractor is responsible for paying damages to THECB including but not limited to re-procurement costs (if applicable), and any other consequential damages to the state of Texas and THECB resulting from Contractor’s non-performance.

6.1.3 Abandonment or Default

If Contractor abandons or defaults on this Contract, THECB reserves the right to terminate this Contract without notice and either re-solicit or re-award the Contract to the next best responsive and responsible contractor. The defaulting Contractor will not be considered in the re-solicitation and may not be considered in future solicitations for the same type of work unless the specification or scope of work significantly changed. The period of suspension will be determined by THECB based on the seriousness of the default.

6.1.4 Applicable Law and Conforming Amendments

THECB may terminate this Contract immediately upon notice to Contractor in the event federal or state law is enacted, amended, or judicially interpreted so as to render continued fulfillment of this Contract, on the part of THECB, wholly unreasonable or impossible. THECB reserves the right, at its sole discretion, to unilaterally amend this Contract throughout the Contract Term to incorporate any modifications necessary for THECB’s compliance, as a Texas state agency, with all applicable state and federal laws, rules, regulations, requirements, and guidelines.

6.1.5 Excess Obligations (Non-Appropriation)

This Contract is subject to termination or cancellation, without penalty to THECB, either in whole or in part, subject to the availability of state funds.

6.1.6 Effect of Termination

Upon any termination, all indemnities, including without limitation those set forth in this Contract, as well as Contract provisions regarding confidentiality, records retention, right to audit, ownership, and dispute resolution, shall survive the termination of this Contract for any reason whatsoever and shall remain in full force and effect. In the event of any termination, Contractor shall, unless otherwise mutually agreed upon in writing, cease all services immediately upon the effective date of termination, except such services that THECB deems are necessary to wind-up in a cost-effective manner. For any termination by THECB other than termination for non-appropriation, THECB shall be liable to Contractor for only that portion of the services authorized by THECB and which have been completed prior to the effective date of termination, provided that THECB shall not be liable for any work performed that is not acceptable to THECB and/or does not meet Contract requirements, plus any necessary work deemed appropriate by THECB to cost-effectively wind-up.

6.1.7 Transfer of Duties

In the event of termination, Contractor will provide reasonable cooperation to transfer its duties under this Contract to another entity without disruption.

6.2 Amendment

This Contract may be modified only by written amendment executed by the Parties hereto; however, any amendment of this Contract that conflicts with Texas state laws shall be void ab initio.

6.3 Indemnification, Acts or Omissions

CONTRACTOR SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS THE STATE OF

TEXAS AND THECB, 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 CONTRACTOR OR ITS AGENTS, EMPLOYEES, SUBCONTRACTORS,

ORDER FULFILLERS, OR SUPPLIERS OF SUBCONTRACTORS IN EXECUTION OR

PERFORMANCE OF THIS CONTRACT AND ANY PURCHASE ORDERS ISSUED UNDER THIS

CONTRACT. THE DEFENSE SHALL BE COORDINATED BY CONTRACTOR WITH THE

OFFICE OF THE ATTORNEY GENERAL OF TEXAS WHEN TEXAS STATE AGENCIES ARE

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

SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE OF THE OFFICE OF THE

ATTORNEY GENERAL OF TEXAS. CONTRACTOR AND THECB AGREE TO FURNISH TIMELY

WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM.

6.4 Sovereign Immunity

The Parties stipulate and agree that no provision of, or any part of this Contract between THECB and Contractor, or any subsequent amendment shall be construed:

(a) as a waiver of the doctrine of sovereign immunity or immunity from suit as provided for in the Texas Constitution and Texas state laws; (b) to extend liability to THECB beyond such liability provided for in the Texas Constitution and Texas state laws; or (c) as a waiver of any immunity provided by the Eleventh Amendment or any other provision of the United States Constitution or any immunity recognized by the courts and the laws of the state of Texas and the United States. The state of Texas and THECB do not waive sovereign immunity by entering this Contract and specifically retain such immunity and all defenses available to them under Texas state laws or common law.

6.5 Assignment

Contractor shall not assign its rights under this Contract or delegate the performance of its duties under this Contract without prior written approval from THECB. Any attempted assignment in violation of this provision is void and without effect.

6.6 Delegation or Subcontracting

Unless as otherwise provided for in this Contract, no contractual rights, interest, or obligation shall be delegated or subcontracted by Contractor without prior written approval of THECB. No delegation or subcontract approved by THECB shall relieve Contractor of any obligation or responsibility under this Contract. It is the Parties’ intent that to the extent subcontracting is approved by THECB, Contractor shall make a good faith effort to subcontract with Historically Underutilized Businesses (HUB) as defined in Texas Government Code § 2161.001(2) during the performance of this Contract. The goal of the HUB program is to promote full and equal business opportunities for all businesses contracting with the state of Texas.

6.7 Right to Audit; Records Retention

Contractor understands that acceptance of funds under this Contract, or indirectly through a subcontract under this Contract, acts as acceptance of the authority of the State Auditor’s Office, THECB or any successor agency, as well as any external auditors selected by the State Auditor’s Office, THECB or, in contracts involving federal funds, any auditors selected by the United States, including, but not limited to the cognizant federal agencies and/or federal Offices of the Inspector General (collectively referred to as “Audit Entities”), to conduct an audit or investigation in connection with those funds. Contractor further agrees to cooperate fully with the Audit Entities in the conduct of an audit or investigation, including promptly providing all records requested. Contractor will ensure that this clause concerning the authority to audit funds received indirectly by subcontractors through Contractor and the requirements to cooperate is included in any subcontract it awards.

6.7.1 Records and Accounts

Contractor shall maintain its records and accounts in a manner which assures a full accounting for all funds received and expended by Contractor in connection with the Contract Project. These records and accounts (which includes all receipts of expenses incurred by Contractor) shall be retained by Contractor and made available for inspecting, monitoring, programmatic or financial auditing, or evaluation by THECB and by others authorized by law or regulation to do so for a period of not less than seven (7) years from the date of completion of the Contract Project or the date of THECB’s receipt of Contractor’s final claim for payment or final expenditure report or until any litigation/billing issues are resolved, whichever is later. If an audit has been announced, the records shall be retained until such audit has been completed. Contractor shall make available at reasonable times and upon reasonable notice, and for reasonable periods, all documents and other information related to the services provided in this Contract. Contractor and any subcontractors shall provide any Audit Entities with any information such entity deems relevant to any monitoring, investigation, evaluation, or audit.

6.7.2 Failure to Comply

Contractor’s failure to comply with this subsection (Right to Audit; Records Retention) shall constitute a material breach of this Contract and shall authorize THECB and the state of Texas to immediately assess appropriate damages for such failure. THECB reserves the right to require the reimbursement of any overpayments determined as a result of any audit or inspection of records on work performed under this Contract. Contractor shall reimburse THECB for any overpayments within thirty (30) calendar days of receipt of THECB’s written notice.

6.7.3 State Auditor’s Right to Audit

The state auditor may conduct an audit or investigation of any entity receiving funds from the state directly under this Contract or indirectly through a subcontract under this Contract. The acceptance of funds directly under the contract or indirectly through a subcontract under this 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 committee, an 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.

6.8 Child Support Obligation Family Code Applicability

“Under Section 231.006, 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.”

Tex. Fam. Code § 231.006(d). If this certification is shown to be false, Contractor is liable to THECB for attorneys’ fees, the costs necessary to complete the Contract, including the cost of advertising and awarding a second contract, and any other damages provided by law or contract.

6.9 Dispute Resolution

If THECB determines that any work product is not acceptable, THECB shall notify Contractor of the specific deficiencies in writing. Contractor shall then undertake all steps necessary to correct any deficiencies at no additional cost to THECB. In the event any issues cannot be resolved, the dispute resolution process provided for in Texas Government Code §§ 2260.001-.108 must be used by THECB and Contractor to attempt to resolve any dispute arising under this Contract.

6.10 Public Disclosure

Contractor understands and agrees that no public disclosures or news releases pertaining to this Contract, including any results, findings or reports conducted to fulfill requirements of this Contract, shall be made without prior written approval of

THECB.

6.11 Confidentiality, Public Information Act, and Family Educational Rights and Privacy Act

Notwithstanding any provisions of this Contract to the contrary, Contractor understands that, as a Texas state agency, THECB is subject to and will comply with the Texas Public Information Act, Texas Government Code §§ 552.001-.376, as interpreted by judicial rulings and opinions of the Attorney General of Texas.

Contractor will cooperate with THECB in the production of documents responsive to any such requests under the Public Information Act at no additional charge to THECB.

6.11.1 Public Information Act

THECB will determine whether to submit a request for a ruling seeking to withhold information from a Public Information Act requestor to the Open Records Division of the Office of the Attorney General of Texas. This Contract and all data and other information generated or otherwise obtained in its performance may be subject to the Texas Public Information Act. Contractor will notify THECB’s contact within twenty-four (24) hours of receipt of any third-party requests for information it receives relating to this Contract. In accordance with Texas Government Code § 2252.907, Contractor is required to make any information created or exchanged with THECB pursuant to this 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 THECB and shall cooperate with THECB in doing

so. Contractor agrees to maintain the confidentiality of information received from THECB and the state of Texas during the performance of this Contract, including information which discloses confidential personal information particularly, but not limited to, social security numbers. Contractor will not disclose any information to which it is privy under this Contract without the prior written consent of THECB. Contractor will indemnify and hold harmless the state of Texas, its officers, and its employees and THECB, its officers, and its employees for any claims for damages that arise from the disclosure by Contractor of information also held by the state of Texas or THECB to which Contractor is privy under this Contract.

6.11.2 Family Educational Rights and Privacy Act

Contractor agrees to comply with the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, and the implementing federal regulations, 34 C.F.R. Part 99, the Children’s Online Privacy Protection Act (COPPA); and Individuals with Disabilities Education Act (IDEA).

6.11.3 Protection of Confidential Data (Covered Data and Information)

Covered Data and Information (CDI) means education records containing personally identifiable information (PII), which are subject to limitations on disclosure set forth in the Family Educational Rights and Privacy Act (34 C.F.R. § 99.33(a)(2)) and with the terms set forth below in sections 6.11.4– 6.11.11.

No CDI will be shared with Contractor. If access to CDI becomes necessary for Contractor to perform the services described in Section 3.0 above, no CDI will be shared with Contractor until a Data Sharing Agreement is executed by Contractor.

6.11.4 Acknowledgment of Prohibited Access to CDI

Contractor acknowledges that this Contract does not allow Contractor access to CDI. THECB agrees not to knowingly provide Contractor with access to such information. Contractor agrees it will not knowingly view, access, acquire, transfer, copy, or otherwise reproduce any student level or other FERPA confidential data.

6.11.5 Prohibition on Unauthorized Use or Disclosure of CDI

While this Contract does not allow Contractor access to CDI, in the event Contractor should in any way acquire CDI, Contractor agrees to hold CDI in strict confidence. Contractor shall not use or disclose CDI received from or on behalf of THECB except as permitted or required by this Contract, as required by law, or as otherwise authorized in writing by THECB. Contractor agrees not to use CDI for any purpose other than the purpose for which the disclosure was made.

6.11.6 Return or Destruction of CDI

Upon termination, cancellation, expiration or other conclusion of this Contract, Contractor shall return all CDI to THECB or, if return is not feasible, destroy all CDI. If Contractor destroys the information, Contractor shall provide THECB with a certificate confirming the date the data was destroyed.

6.11.7 Breach

Any violation of these FERPA provisions by Contractor shall be deemed a material breach of this Contract.

6.11.8 Maintenance of the Security of Electronic Information

Contractor shall develop, implement, maintain, and use appropriate administrative, technical, and physical security measures to preserve the confidentiality, integrity, and availability of all electronically maintained or transmitted CDI received from, or on behalf of THECB. These measures will be extended by contract to all subcontractors used by Contractor.

Contractor warrants it has a sound data security program that, at a minimum, meets industry standards, that protects both data at rest and data in transmission. Contractor shall ensure that proper information security controls are in place and shall comply with all requirements and security protocols found in Title 1 Texas Administrative Code chapter 202, Texas Cybersecurity Framework Standards, and other applicable laws, including

FERPA.

6.11.9 Security Controls for Agency Data

Pursuant to Texas Government Code § 2054.138, to the extent that Contractor is authorized to access, transmit, use, or store THECB data, Contractor certifies that it will comply with the security controls that THECB determines are proportionate with THECB’s risk under this Contract based on the sensitivity of the THECB data. Contractor must periodically provide THECB with evidence that it meets the security controls required under this Contract.

6.11.10 Cybersecurity Insurance Coverage

Contractor agrees to obtain and maintain cyber security insurance coverage including both first- and third-party coverage, covering claims involving privacy violations, information theft, damage to or destruction of electronic information, intentional and/or unintentional release of private information, alteration of electronic information, extortion, and network security.

6.11.11 Reporting of Unauthorized Disclosures or Misuse of Covered Data and Information

Contractor shall, within one hour of discovery, report to THECB any use or disclosure of CDI not authorized by this Contract or in writing by THECB.

Contractor’s report shall identify: (a) the nature of the unauthorized use or disclosure, (b) the CDI used or disclosed, (c) who made the unauthorized use and who received the unauthorized disclosure, (d) what Contractor has done or shall do to mitigate any deleterious effect of the unauthorized use or disclosure, and (e) what corrective action Contractor has taken or shall take to prevent future similar unauthorized use or disclosure. Contractor shall provide such other information, including a written report, as requested by THECB. Contractor shall be responsible for any data breach notifications and damages to affected individuals that are required by state or federal law.

6.12 Infringements

CONTRACTOR SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS THE STATE OF

TEXAS, THECB, AND THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, OTHER

CONTRACTORS, ASSIGNEES, OFFICERS, AND DESIGNEES FROM AND AGAINST ALL

CLAIMS, VIOLATIONS, MISAPPROPRIATIONS OR INFRINGEMENT OF ANY PATENT,

COPYRIGHT, TRADEMARK, SERVICE MARK, 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 PERFORMANCES

OR ACTIONS OF CONTRACTOR PURSUANT TO THIS CONTRACT; (2) ANY DELIVERABLE,

WORK PRODUCT, CONFIGURED SERVICE, OR OTHER SERVICE PROVIDED HEREUNDER;

AND/OR (3) THECB’S AND/OR CONTRACTOR’S USE OF OR ACQUISITION OF ANY

REQUESTED SERVICES OR OTHER ITEMS PROVIDED TO THECB BY CONTRACTOR OR

OTHERWISE TO WHICH THECB HAS ACCESS AS A RESULT OF CONTRACTOR’S

PERFORMANCE UNDER THIS CONTRACT. CONTRACTOR AND THECB AGREE TO

FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM.

CONTRACTOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING

ATTORNEYS’ FEES. THE DEFENSE SHALL BE COORDINATED BY CONTRACTOR WITH THE

OFFICE OF THE ATTORNEY GENERAL OF TEXAS WHEN TEXAS STATE AGENCIES ARE

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

SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE OF THE OFFICE OF THE

ATTORNEY GENERAL OF TEXAS. IN ADDITION, CONTRACTOR WILL REIMBURSE THECB

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 THECB DETERMINES THAT A CONFLICT EXISTS

BETWEEN ITS INTERESTS AND THOSE OF CONTRACTOR OR IF THECB IS REQUIRED BY

APPLICABLE LAW TO SELECT SEPARATE COUNSEL, THECB WILL BE PERMITTED TO

SELECT SEPARATE COUNSEL AND CONTRACTOR WILL PAY ALL REASONABLE COSTS OF

THECB’S COUNSEL.

Contractor shall have no liability under this section if the alleged infringement is caused in whole or in significant part by: (a) THECB’s use of the product or service for a purpose or in a manner for which the product or service was not designed, (b) any modification made to the product by THECB without Contractor’s approval, (c) any modifications made to the product by Contractor pursuant to THECB’s specific instructions, (d) any intellectual property right owned by or licensed to THECB by a person or entity other than Contractor, or (e) any use of the product or service by THECB that is not in substantial conformity with the terms of any applicable license agreement.

If Contractor becomes aware of an actual or potential claim, or THECB provides Contractor with notice of an actual or potential claim, Contractor may (or in the case of an injunction against THECB, shall), at Contractor’s sole option and expense: (a) procure for THECB the right to continue to use the affected portion of the product or service, or (b) modify or replace the affected portion of the product or service with functionally equivalent or superior product or service so that THECB’s use is non-infringing.

6.13 Ownership/Work Made for Hire

All work product generated as a result of this Contract Project, including but not limited to all information, materials, products, research, reports, studies, statistical analyses, work papers, approaches, designs, deliverables, systems, documentation, methodologies, concepts, research materials, data, photos, software, intellectual property, or other property produced or generated in connection with this Contract that had not previously been produced or generated by Contractor, either completed or partially completed, shall be the sole property of THECB and all rights, title, and interest in and to the work product shall vest in THECB upon payment for the services.

Contractor shall deliver all such work product to THECB upon completion, termination, or cancellation of this Contract. THECB shall retain all property rights, including publication rights, hereunder and Contractor shall assert no right in law or equity to such work product. THECB shall have the right to obtain and to hold in its own name any and all patents, copyrights, trademarks, service marks, or such other protection as may be appropriate to the subject matter, and any extensions and renewals thereof.

Contractor shall ensure that this provision, “Ownership/Work Made for Hire,” is contained in any subcontract THECB has authorized Contractor to award. Contractor may, at its own expense, keep copies of all its materials for its personal files.

Contractor shall not use, willingly allow, or cause to have such work product used for any purpose other than the performance of Contractor’s obligations under this Contract without THECB’s prior written consent; provided, however, that Contractor shall be allowed to use non-confidential materials for writing samples in pursuit of work.

6.14 Governing Law and Venue

This Contract shall be governed by and construed in accordance with Texas state laws, without regard to the conflicts of law provisions. The venue of any suit arising under this 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 THECB.

6.15 Additional Contractor Responsibilities

Contractor shall comply with all federal, state, and local laws, statutes, ordinances, rules, and regulations and the orders and decrees of any court, administrative body, or tribunal in any matter affecting the performance of this Contract, including applicable workers’ compensation laws, compensation statutes and regulations, and licensing laws and regulations. Upon THECB’s request, Contractor shall furnish THECB with satisfactory proof of its compliance. Contractor shall be responsible for damage to THECB’s equipment, and/or the workplace and its contents by Contractor’s or its subcontractors’ work, negligence in work, personnel, and equipment. Contractor shall be responsible and liable for the safety and health of its employees and contractors while they are performing work for THECB under this Contract. Contractor shall provide all labor and equipment necessary to furnish the goods or perform the services. All employees of Contractor shall be a minimum of eighteen (18) years of age and experienced in the type of work to be performed. Contractor shall permit no visitors or relatives of Contractor’s employees and contractors on THECB’s property unless they also are bona fide employees or subcontractors of Contractor.

6.16 Conflict of Interest

Contractor represents and warrants that Contractor, its principals, employees, or subcontractors have no actual or potential conflict of interest in providing services to THECB under this Contract, and that the provision of services under this Contract does not create an appearance of impropriety. Failure to disclose a conflict of interest, at any time during the duration of this Contract, shall be cause for termination of this Contract. Contractor represents and warrants that the provision of goods and services or other performance under this Contract will not constitute an actual or potential conflict of interest or reasonably create an appearance of impropriety.

6.17 Financial Interests; Gifts

Contractor represents and warrants that neither Contractor nor any person or entity that will participate financially in this Contract has received compensation from THECB or any Texas state agency for participation in preparation of specifications for this Contract.

6.18 Additional Contractor’s Representations

Contractor hereby covenants, represents, and warrants that Contractor (including, for purposes of this section, its employees, consultants, subcontractors, and agents): (a) has the technical expertise and general skills necessary to perform the services in accordance with this Contract competently and professionally; (b) is not a party to or bound by any agreement, obligation, or understanding which restricts or limits in any way Contractor’s right to enter into this Contract or Contractor’s right or ability to perform Contractor’s obligations under this Contract; (c) shall not use the trade secrets, intellectual property rights, copyrights, or other proprietary rights of any third party in the performance of Contractor’s obligations under this Contract without having first lawfully obtained the right in writing to do so; and (d) has the necessary equipment, facilities, and workers to perform Contractor’s obligations under this Contract. To the extent that this Contract involves architectural or engineering services, Contractor represents and warrants that, pursuant to Texas Government Code § 2254.0031, Contractor shall “perform services: (1) with professional skill and care ordinarily provided by competent engineers or architects practicing under the same or similar circumstances and professional license; and (2) as expeditiously as is prudent considering the ordinary professional skill and care of a competent engineer or architect.” Tex. Loc. Gov’t Code § 271.904(d).

6.19 Antitrust

The undersigned affirms under penalty of perjury of Texas state laws that: “(1) in connection with this Contract, neither I nor any representative of the Contracted Party have violated any provision of the Texas Free Enterprise and Antitrust Act, Texas Business and Commerce Code §§ 15.01-.52; (2) in connection with this Contract, neither I nor any representative of the Contracted Party have violated any federal antitrust law; and (3) neither I nor any representative of the Contracted Party have directly or indirectly communicated any of the contents of this Contract to a competitor of the Contracted Party or any other company, corporation, firm, partnership or individual engaged in the same line of business as the Contracted Party.”

6.20 Equal Opportunity

Contractor represents and warrants that it shall not discriminate against any person on the basis of race, color, national origin, religion, political belief, sex, age, or disability in the performance of this Contract.

6.21 Independent Contractor

Contractor shall be an independent contractor in all matters relating to this Contract.

Contractor and its employees, agents, and subcontractors shall not be deemed or construed to be the employees or agents of THECB for any purposes whatsoever.

Contractor agrees and acknowledges that Contractor, its employees and agents, and Contractor’s subcontractors are independent contractors of THECB and/or the state of Texas and are not employees of THECB or the state of Texas, and Contractor agrees that it shall have complete responsibility in the area of employment law and relations regarding its employees, contractors, and agents, including but not limited to:

wrongful discharge lawsuits, unemployment issues, workers’ compensation, employment taxes, any other benefits and reimbursement due to losses in these areas. Consistent therewith, Contractor agrees that it shall provide its employees with all necessary employee benefits, including unemployment and workers’ compensation benefits, and THECB is in no way a party to such arrangements.

Regarding its employees, Contractor shall have the sole authority to hire, fire, transfer, train, evaluate, discipline, pay, and assign work.

Contractor agrees and acknowledges that Contractor and Contractor’s employees or assistants shall not be entitled to any state of Texas benefit on account of the services provided hereunder. If THECB or the state of Texas shall nonetheless become liable for such payments or obligations, Contractor shall promptly pay or reimburse THECB or the state of Texas for such liability or obligation.

6.22 Eligibility/Authorization to Work in the United States

Contractor shall ensure that all personnel provided to perform work under this Contract possess proof of eligibility/authorization to work in the United States in compliance with the Immigration Reform and Control Act of 1986, the Immigration Act of 1990 including any amendments already adopted or as may be adopted hereafter, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 including any amendments already adopted or as may be adopted hereafter.

Contractor shall maintain written records on all personnel provided under this Contract and shall provide such records to THECB upon request. Failure to maintain and provide records upon request shall represent a material breach of this Contract and THECB shall have the right to terminate this Contract for cause. Contractor shall ensure this section is included in all subcontracts it is authorized by THECB to enter.

6.23 Taxes, Workers’ Compensation Insurance, and Unemployment Insurance, Including Indemnity

CONTRACTOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF THIS

CONTRACT, CONTRACTOR SHALL BE ENTIRELY RESPONSIBLE FOR THE LIABILITY AND

PAYMENT OF CONTRACTOR’S AND CONTRACTOR’S EMPLOYEES’ TAXES OF

WHATEVER KIND, ARISING OUT OF THE PERFORMANCE OF THIS CONTRACT.

CONTRACTOR AGREES TO COMPLY WITH ALL STATE AND FEDERAL LAWS APPLICABLE

TO ANY SUCH PERSONS, INCLUDING LAWS REGARDING WAGES, TAXES, INSURANCE,

AND WORKERS’ COMPENSATION. THECB AND/OR THE STATE OF TEXAS SHALL NOT BE

LIABLE TO CONTRACTOR, ITS EMPLOYEES, AGENTS, OR OTHERS FOR THE PAYMENT

OF TAXES OR THE PROVISION OF UNEMPLOYMENT INSURANCE AND/OR WORKERS’

COMPENSATION OR ANY BENEFIT AVAILABLE TO A STATE EMPLOYEE OR EMPLOYEE

OF ANOTHER GOVERNMENTAL ENTITY.

CONTRACTOR AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THECB, THE

STATE OF TEXAS AND THEIR OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES,

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

CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEYS’ FEES, AND

EXPENSES, RELATING TO TAX LIABILITY, UNEMPLOYMENT INSURANCE AND/OR

WORKERS’ COMPENSATION IN ITS PERFORMANCE UNDER THIS CONTRACT.

CONTRACTOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING

ATTORNEYS’ FEES. THE DEFENSE SHALL BE COORDINATED BY CONTRACTOR WITH THE

OFFICE THE ATTORNEY GENERAL OF TEXAS IF THECB AND/OR THE STATE OF TEXAS

AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, OTHER

CONTRACTORS, ASSIGNEES, AND DESIGNEES ARE A NAMED DEFENDANT IN ANY

LAWSUIT AND CONTRACTOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST

OBTAINING THE CONCURRENCE OF THE OFFICE OF THE ATTORNEY GENERAL OF

TEXAS. CONTRACTOR AND THECB AGREE TO FURNISH TIMELY WRITTEN NOTICE TO

EACH OTHER OF ANY SUCH CLAIM.

6.24 Prohibition on Use of Funds for Lobbying

Contractor represents and warrants that THECB’s payments and Contractor’s receipt of appropriated or other funds under this Contract are not prohibited by Texas Government Code §§ 556.005, 556.0055, or 556.008.

6.25 Buy Texas

In accordance with Texas Government Code § 2155.4441, Contractor 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 this state.

6.26 Provision of Services

Upon THECB’s request for the remittance of any services for which THECB has made payment, Contractor shall immediately remit such services to THECB. Any failure to remit such services immediately shall be considered a material breach of this Contract.

6.27 Force Majeure

THECB may grant relief from performance of this Contract if Contractor is prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of Contractor. The burden of proof for the need of such relief shall rest upon Contractor. Contractor shall notify THECB in writing if it believes that a force majeure may have occurred and THECB shall, in its sole discretion, determine if force majeure has occurred.

6.28 Notice

6.28.1 Form of Notice

All notices and other communications in connection with this Contract shall be in writing.

6.28.2 Method of Notice

All notices must be given by (a) personal delivery, (b) express courier (with confirmation), (c) registered or certified mail (return receipt requested), or

(d) electronic mail to the Party at the address specified in this Contract, or to the address that a Party has notified to be that Party’s address for the purposes of this section.

6.28.3 Receipt of Notice

A notice in accordance with this Contract will be effective upon receipt by the Party to which it is given or, if mailed by registered or certified mail, upon the earlier of receipt or the third business day following mailing.

THECB’s Notice Address Name Title Texas Higher Education Coordinating Board 1801 N. Congress Ave., Suite 12.200 Austin, Texas 78701 Email Address

Contractor’s Notice Address Name

Title Address City, State Zip Code Email Address

6.29 False Statements; Breach of Representations

Contractor represents and warrants that all statements and information prepared and submitted in this document are current, complete, true, and accurate. Submitting a false statement or material misrepresentations made during the performance of this Contract is a material breach of contract and may void this Contract.

6.30 Severability and Waiver

The invalidity, illegality, or unenforceability of any provision of this Contract shall in no way affect the validity, legality, or enforceability of any other provisions.

Each and every right granted to the Parties hereunder or under any other document delivered hereunder or in connection herewith, or allowed them by law or equity, shall be cumulative and may be exercised from time to time. Failure by THECB or Contractor at any time to require strict performance of any contractual provision or obligation contained herein shall not constitute a waiver or diminish the rights of either Party thereafter to demand strict compliance.