ESBD_443357_1754488023214_Attachment 1 - PSRS MSA Final.pdf

RFO 212-25-0959

ATTACHMENT 1: MASTER SERVICES AGREEMENT

Master Services Agreement OCA Contract No. 212-25-0959

Between

Texas Office of Court Administration and

Contractor i

TABLE OF CONTENTS

Page

1. INTRODUCTION

1.1 Provision, Performance and Management by Contractor

1.2 Contractor’s Experience and Qualifications

1.3 Definitions

1.4 Other Terms

1.5 Compliance with Procurement Laws

2. ORDER OF PRECEDENCE

3. TERM

3.1 Term

4. SERVICES

4.1 Services

4.2 Termination Assistance Services

4.3 Change Request

4.4 Acceptance

5. PERFORMANCE STANDARDS

5.1 Performance and Service Levels

5.2 Reimbursements

5.3 Service Problem Analysis

6. CONTRACTOR PERSONNEL

6.1 Contractor Project Manager

6.2 Contractor Program Manager

6.3 Contractor Personnel Are Not State or OCA Employees

6.4 Responsibility for Contractor Personnel

6.5 Qualifications of Contractor Personnel

6.6 Removal of Contactor Personnel

6.7 Union Agreements

7. CONTRACTOR RESPONSIBILITIES

7.1 Reports, Data Correction, Re-Performance

7.2 Internal Controls

7.3 Change Control

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7.4 Subcontractors

7.5 Technology Evolution

8. OCA RESPONSIBILITIES

8.1 Savings Clause

9. AUDITS

9.1 Audit Rights

10. FEES

10.1 General

10.2 Taxes

11. INVOICING AND PAYMENT

11.1 Invoicing

11.2 Set Off

11.3 Disputed Charges

12. PSRS DATA AND OTHER CONFIDENTIAL INFORMATION

12.1 Confidentiality

12.2 PSRS Data

12.3 Security Incident

12.4 Survival

12.5 Requirements for Information in Legal Proceedings

13. LICENSE GRANT AND MATERIALS

13.1 Contractor Owned and Licensed Materials

13.2 Work Product; Other Materials

14. REPRESENTATIONS, WARRANTIES AND COVENANTS

14.1 Work Standards

14.2 Software Currency

14.3 Efficiency and Cost Effectiveness

14.4 Intellectual Property

14.5 Non-Infringement

14.6 General

14.7 Certifications

14.8 Inducements; OCA Code of Ethics

14.9 Malicious Code

14.10 Compliance with Laws

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14.11 Equal Opportunity Compliance

14.12 Information Furnished to OCA

14.13 Previous Contracts

14.14 Completeness of Due Diligence Activities

14.15 Interoperability

14.16 Prohibition on Contracts with Companies Boycotting Israel

14.17 Financial Condition

15. INSURANCE AND RISK OF LOSS

16. INDEMNITIES

16.1 General Indemnity by Contractor

16.2 Intellectual Property Indemnity

16.3 No Double Recovery

16.4 Comparative Fault

16.5 Infringement and Mitigation

16.6 Indemnification Procedures

16.7 Subrogation

17. LIABILITY

17.1 General Intent

17.2 Force Majeure

17.3 Limitation of Liability

18. DISPUTE RESOLUTION

18.1 Informal Dispute Resolution

18.2 Jurisdiction

18.3 Continued Performance

18.4 Governing Law

19. TERMINATION

19.1 Termination for Cause

19.2 Termination for Convenience

19.3 Termination Upon Contractor Change of Control

19.4 OCA Rights Upon Contractor’s Bankruptcy

19.5 Termination for Adverse Change in Contractor’s Financial Condition

19.6 Step-In Rights

19.7 Absolute Right

iv

19.8 Lack of Sufficient Funds or Statutory Authority

19.9 General Termination Rights

19.10 Effect of Termination

20. GENERAL

20.1 No Waiver of Sovereign Immunity

20.2 RFO Errors and/or Omissions

20.3 Abandonment or Default

20.4 Place of Performance

20.5 Buy Texas

20.6 Binding Nature and Assignment

20.7 Entire Agreement; Amendment

20.8 Notices

20.9 Counterparts

20.10 Headings

20.11 Relationship of Parties

20.12 Severability

20.13 Consents and Approval

20.14 Waiver of Default; Cumulative Remedies

20.15 Survival

20.16 Publicity

20.17 Export

20.18 No Third Party Beneficiaries

20.19 Covenant Against Pledging

20.20 Solicitation and Hiring of Employees

20.21 Further Assurances

20.22 Liens

20.23 Covenant of Good Faith, Commercially Reasonable Efforts

20.24 Acknowledgment

20.25 References

20.26 Guaranty

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TABLE OF EXHIBITS:

Exhibit 1 Definitions Exhibit 2 Statement of Work Exhibit 3 Service Level Agreement Exhibit 4 Pricing and Financial Provisions

Exhibit 5 Historically Underutilized Business Subcontracting Plan Exhibit 6 Guaranty

Public Safety Report System

MASTER SERVICES AGREEMENT

This Master Services Agreement (this “Agreement”) is entered by and between the Texas Office of Court Administration (“OCA”), on behalf of the State of Texas, with its principal place of business at 205 W. 14th St., Suite 600, Austin, Texas 78701, and [_____] (“Contractor”), a [_____] corporation, with its principal place of business at [_____], effective as of the full execution of this Agreement by OCA and Contractor (the “Effective Date”).

WHEREAS, OCA has a mission to provide resources and information for the efficient administration of the judicial branch of Texas;

WHEREAS, OCA is required to provide a Public Safety Report System (“PSRS”) to enable local jurisdictions to perform magistrations;

WHEREAS, OCA seeks to develop, implement, and maintain a scalable, cloud-based, robust statewide PSRS, and in accordance with the Laws of the State, issued the “Request for Offer” on the Texas Comptroller of Public Accounts’ Electronic State Business Daily website, Request for Offer No. 212-25-0959 “Request for Offer for a Public Safety Report System” (the “RFO”);

WHEREAS, after evaluation of the responses to the RFO (each a “Response”), OCA determined, and Contractor demonstrated, that Contractor is capable of providing and completing the Services in a successful, on-time manner, within budget, and in the manner documented in this Agreement; and

WHEREAS, OCA desires to procure from Contractor, and Contractor desires to provide to OCA, on the terms and conditions of this Agreement, the Services described herein.

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and for other good and valid consideration, the receipt and sufficiency of which are hereby acknowledged, OCA and Contractor (collectively, the “Parties” and each, a “Party”) hereby agree as follows:

1. INTRODUCTION

1.1 Provision, Performance and Management by Contractor.

OCA desires that certain Services be provided, performed, and managed by Contractor as described in this Agreement. Contractor has carefully reviewed the terms of this Agreement and desires to provide, perform and manage such Services for OCA in accordance with the terms herein.

1.2 Contractor’s Experience and Qualifications.

Contractor represents and warrants that it is an established provider of the Services as awarded under this Agreement and has the skills, qualifications, expertise, financial resources and experience necessary to provide the Services described in this Agreement in accordance with the terms herein.

1.3 Definitions.

Capitalized terms used in this Agreement shall have the meanings set forth in the Definitions attached hereto as Exhibit 1, unless otherwise defined in the context of the provision. Words having well-known technical or trade meanings but not otherwise defined in this Agreement shall be accorded such meaning unless expressly defined otherwise herein.

1.4 Other Terms.

(a) Construction. The terms defined in this Agreement shall, where appropriate in the context so written, be deemed to apply to the plural as well as the singular of such terms. Unless otherwise expressly stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section, Subsection, Exhibit, Attachment or other subdivision. Article, Section, Subsection, Exhibit and Attachment references refer to the articles, sections and subsections of, and exhibits and attachments to, this Agreement. The words “include” and “including” shall not be construed as terms of limitation. Unless otherwise modified, the words “day,” “month,” and “year” mean, respectively, calendar day, calendar month and calendar year. The words “notice” and “notification” and their derivatives mean notice or notification in writing. All references to this Agreement shall include the Exhibits, Statement of Work, Accepted Change Requests, and any other Attachments to this Agreement unless otherwise provided.

(b) Requirement of Writing. To the extent that Contractor is required under this Agreement to obtain OCA’s approval, consent, or agreement, such approval, consent, or agreement shall be in writing and must be signed by, or directly transmitted by electronic mail from, OCA Program Manager, or its designee. Except as expressly set forth herein, OCA’s failure to respond to a requested approval, consent or agreement shall be construed as OCA’s rejection of same.

1.5 Compliance with Procurement Laws.

This Agreement is the result of compliance with applicable procurement Laws of the State. OCA issued the RFO for the Services. Contractor provided the Response and after an evaluation and a determination by OCA that Contractor was invited into negotiations, OCA and Contractor engaged in extensive negotiations, discussions and due diligence that culminated in the formation of the contractual relationship described in this Agreement. OCA shall post a notice of award for an agreement arising from the RFO on the Electronic State Business Daily website.

2. ORDER OF PRECEDENCE

In the event of a conflict between or among the various documents comprising this Agreement, the following order of precedence shall control:

(a) Article 1 through Article 20 of this Agreement;

(b) Exhibit 1 (Definitions);

(c) Exhibit 2 (Statement of Work);

(d) Exhibit 3 (Service Level Agreement);

(e) Exhibit 4 (Pricing and Financial Terms);

(f) Exhibit 5 (Historically Underutilized Business Subcontracting Plan); and

(g) Exhibit 6 (Guaranty).

3. TERM

3.1 Term.

(a) Initial Term. The term of this Agreement shall commence as of 12:00:00 a.m., Central Standard Time, on the Effective Date and continue until 11:59:59 p.m., Central Standard Time, August 31, 2030, unless this Agreement is terminated earlier as provided herein, in which case the term of this Agreement shall end at 11:59:59 p.m., Central Standard Time, on the effective date of such termination (the “Initial Term”).

(b) Extension. OCA may, in its sole and absolute discretion, unilaterally extend the then-applicable term of this Agreement for up to three (3) twelve-month extension periods (each twelve-month extension period, a “Renewal Term”) on the same terms and conditions of this Agreement, by giving Contractor notice of such extension, and of the length thereof, at least ninety

(90) days before the end of the Initial Term or any then-existing Renewal Term under this Section 3.1(b). The Initial Term and any Renewal Term shall constitute the “Term”.

4. SERVICES

4.1 Services.

Contractor will provide the following Services:

(a) Implementation Services and Production Services, performed in accordance with the Statement of Work attached hereto as Exhibit 2; and

(b) Delivery, response, maintenance, monitoring, support, and other services as set forth in the Statement of Work and other documents to ensure that the Service Level Agreement attached hereto as Exhibit 3 and Service Level Requirements attached hereto as Attachment 3-1 to Exhibit 3 are met.

4.2 Termination Assistance Services.

Upon the earlier of notice of termination or expiration of the Agreement, Contractor shall promptly (but not more than ten days) deliver to OCA all requested PSRS Data and current definition of the API (including data structure) in a format reasonably requested, or, if no request is made as to format, Contractor shall provide OCA a hard drive containing such requested PSRS Data and current definition of the API in a format that is easily readable and understandable.

Contractor shall take all steps required or reasonably requested to make an orderly transition of the Services to OCA’s designees in migrating such PSRS Data.

(a) General. Upon OCA’s request following an Assistance Event, Contractor shall provide Termination Assistance Services directly to OCA, its successors or assigns and any of their designee(s)

(i) Period of Provision. Contractor shall provide Termination Assistance Services commencing on the date that OCA determines there shall be an Assistance Event and continuing for up to twelve

(12) months after the effective date of such Assistance Event, as designated by OCA, subject to further extensions as permitted by Section 4.2(a)(iii).

(ii) Notice of an Assistance Event. OCA shall provide Contractor with written notice of an Assistance Event. Such notice shall include a description of the Services that are to be terminated or discontinued, and the anticipated effective date of the Assistance Event. OCA may modify or update any of the information provided in the initial notice of an Assistance Event from time to time by a supplemental notice from OCA to Contractor.

(iii) Suspension and Extension of Services. OCA may, at any time upon ten (10) Business Days’ written notice to Contractor, elect to (i) suspend the period of performance of any Termination Assistance Services (in whole or in part) and, upon fifteen (15) Business Days’ written notice to Contractor, restart the period for performance of any Termination Assistance Services, or (ii) extend the period for performance of the Termination Assistance Services (in whole or in part); provided that the total of all such delays or extensions shall not cause Contractor to provide the Termination Assistance Services for more than twenty-four (24) months.

(iv) Firm Commitment. Contractor shall provide Termination Assistance Services regardless of the reason for the Assistance Event.

(v) Performance. Contractor shall perform Termination Assistance Services with at least the same degree of accuracy, quality, completeness, timeliness, responsiveness and resource efficiency as the accepted industry standards of first tier providers of services that are the same as or similar to the Services. The quality and level of performance of Termination Assistance Services provided by Contractor shall continue to meet or exceed the Service Levels and shall not be degraded or deficient in any respect. Service Level Reimbursements shall be assessed for any failure to meet Service Levels during any period in which Termination Assistance Services are provided. If any period for performing any Termination Assistance Services extends beyond the expiration or the effective date of any termination of this Agreement, the provisions of this Agreement shall remain in full effect for the duration of such period.

(b) Scope. As part of the Termination Assistance Services, Contractor shall timely transfer the control and responsibility for Services previously performed by or for Contractor to OCA and/or its designee(s), and upon OCA’s request, shall provide any and all information and reasonable assistance requested by OCA including (i) the Services required to continue without interruption or adverse effect, or (ii) the orderly transfer of the Services (or replacement or supplemental services) to OCA and/or its designee(s).

(c) General Support. As part of the Termination Assistance Services, Contractor shall (i) within thirty (30) days from receipt of notice of an Assistance Event, develop and provide OCA and/or its designee(s) with a written plan for the migration of the Services to OCA and/or its designee(s), which plan shall include capacity planning, process planning, facilities planning, human resources planning, technology planning, telecommunications planning and other planning necessary to effect the transition (“Termination Assistance Plan”), (ii) upon OCA’s Acceptance of the applicable Termination Assistance Plan, perform all Services necessary to implement the Termination Assistance Plan, (iii) analyze and report on the space required for PSRS Data and the Software needed to provide the Services and necessary documentation to replicate API mapping and connectivity, (iv) assist in the execution of a parallel operation, data migration and testing process until the successful completion of the transition to OCA and/or its designee(s), (v) create and provide copies of PSRS Data in the format and on the media reasonably requested by OCA and/or its designee(s), and (vi) provide other technical and process assistance, documentation and information as requested by OCA and/or its designee(s).

(d) Rates and Charges. Contractor shall provide all Termination Assistance Services at no additional charge during the Term of this Agreement and following the Term for Charges as set forth in the Pricing and Financial Provisions attached hereto as Exhibit 4.

(e) Resources. At all times during the Term, Contractor shall retain the resources necessary to perform any Termination Assistance Services.

(f) Information. Upon receipt of written request by OCA following the occurrence of any breach by Contractor under this Agreement or in the event that OCA elects to evaluate re-procurement of all or any portions of Services, Contractor shall promptly (but not less than ten (10) Business Days following receipt of such request) deliver to OCA reports, data and information that OCA deems necessary, including all reports, data and information specified in Section 7.1. For the avoidance of doubt, Contractor shall deliver all such reports, data and information regardless of whether OCA has provided notice of or otherwise declared an Assistance Event.

4.3 Change Request.

If OCA requests that Contractor perform any New Services within the scope of the RFO that are reasonably related to the Services or other services generally provided by Contractor, Contractor shall promptly prepare a Change Request for OCA’s consideration in accordance with the change process outlined in the Integrated Change Management Plan developed pursuant to the Statement of Work.

4.4 Acceptance.

(a) Deliverables. OCA shall determine, in its reasonable judgment, when a Deliverable shall be Accepted in accordance with the process set forth below:

(i) Acceptance Review Period. For determining whether to Accept or reject each Deliverable, OCA shall have either (A) the period of time set forth in the Statement of Work, or (B) if no such period is set forth, ten (10) Business Days following OCA’s acknowledgement of receipt of Contractor’s notification that Contractor has completed such Deliverable (any such period of time, the “Acceptance Review Period”). Contractor shall perform comprehensive testing (e.g., unit, string, integration, stress/performance, volume, system testing, regression, security/intrusion, user acceptance), if applicable, on each such Deliverable prior to submitting such item to OCA for Acceptance.

(ii) Acceptance Review. During the Acceptance Review Period, OCA shall review and may further test each Deliverable, individually and/or collectively, to determine whether any such item contains any type of Noncompliance. Contractor shall cooperate with such review and testing efforts, provide access to a technical environment to facilitate such review, and provide all applicable documentation that may assist in such review and testing, including the results of any testing performed by Contractor pursuant to Section 4.4(a)(i).

(iii) Acceptance. Upon OCA’s Acceptance of a Deliverable, OCA shall inform Contractor in writing of such Acceptance. If OCA does not Accept a Deliverable, OCA shall provide Contractor a notice of Noncompliance as described below. If OCA does not Accept or deliver a notice of Noncompliance to Contractor by the end of the Acceptance Review Period, Contractor shall provide OCA with written notice that the Acceptance Review Period has expired, and may deliver a written request for a meeting to take place within two

(2) days with the OCA Program Manager, or its designee, to discuss, review, and consider Acceptance of such Deliverable.

(iv) Noncompliance. If OCA detects any Noncompliance during the Acceptance Review Period, OCA shall promptly notify Contractor in writing and reasonably specify the nature of the failure or deficiency giving rise to such Noncompliance. Promptly after receiving such notice from OCA (but not more than two (2) days from Contractor’s receipt of such notice), and at no charge to OCA, Contractor shall correct any such Noncompliance. Following correction of any such Noncompliance, Contractor shall resubmit the Deliverable to OCA for Acceptance and the applicable Acceptance Review Period shall begin again in accordance with Section 4.4(a)(i) through (iii).

(v) Failure to Cure a Noncompliance. If Contractor does not correct all Noncompliance of a Deliverable within a reasonable period of time following resubmission and receipt of a second notice of such Noncompliance (not to exceed five (5) Business Days), then OCA may, in its sole discretion and upon written notification to Contractor,

(A) provide Contractor an additional cure period to fix the Noncompliance; (B) conditionally Accept the Deliverable and, at no cost to OCA, require Contractor to develop a remediation plan, subject to OCA’s approval of such plan, whereby Contractor shall design and implement a workaround solution that mitigates the Noncompliance; (C) reject the Deliverable entirely, in which case Contractor shall fully refund any Charges paid for such Deliverable;

(D) correct the Noncompliance itself or hire a Third Party to correct the Noncompliance at Contractor’s reasonable expense (all such out-of-pocket expenses and costs incurred by OCA shall be subject to set-off as set forth in Section 11.2); (E) implement and use the Deliverable despite the Noncompliance and equitably reduce the

Charges in an amount reasonably determined by OCA; or (F) require Contractor to pay the Deliverable Fees. If OCA elects options (A) or

(B) above and Contractor fails to cure the Noncompliance in accordance with the foregoing, OCA may thereafter also elect to pursue options (C), (D), (E) or (F). The remedies above are in addition to and shall not limit OCA’s other remedies, whether at Law, in equity, or under this Agreement.

(vi) Previously Accepted Items. In the event any modification or rework of a previously Accepted Deliverable or other Deliverable is required for the Acceptance of a subsequent deliverable, then Contractor shall perform such modification or rework at no Charge to OCA.

Furthermore, in the event of a discovery of a latent defect in a previously Accepted Deliverable, where such latent defect would have qualified as Noncompliance at the time of Acceptance, upon notification by OCA, Contractor shall, at no additional Charge, repair or replace or otherwise correct the Noncompliance to the level of performance specified in this Agreement.

5. PERFORMANCE STANDARDS

5.1 Performance and Service Levels.

Contractor will perform the Services under the Statement of Work in accordance with the applicable Service Level Requirements along with calculation methodologies and other detailed terms as detailed in the Statement of Work, the Deliverable Expectation Document, or the Service Level Agreement, as the case may be. Contractor shall provide OCA with detailed Reports on Contractor’s compliance with the Statement of Work and the Service Levels upon the frequency set forth in the Statement of Work or the Service Level Agreement, as the case may be, or if not specified in the Statement of Work or the Service Level Agreement, then monthly. In addition, any changes to the Statement of Work or the Service Levels are subject to OCA’s prior written approval. In the absence of any modifications, the performance targets, Service Level Requirements, and measurement intervals in the Service Level Agreement shall apply to all Contract Years. Nothing in this Section 5.1 shall be deemed to supersede the Service Levels set forth in the Service Level Agreement.

5.2 Reimbursements.

(a) Deliverable Fees. Contractor recognizes that OCA is paying Contractor to provide certain Deliverables by the time and in the manner set forth in the Statement of Work. If Contractor fails to meet its obligations with respect to such Deliverables, then, in addition to other remedies available to OCA, Contractor shall pay to OCA the applicable Deliverable Fees set forth in the Statement of Work. Deliverable Fees are distinct from Service Level Reimbursements. Under no circumstances shall the imposition of

Deliverable Fees be construed as OCA’s sole or exclusive remedy for any failure to meet Contractor’s agreed obligations.

(b) Service Level Reimbursements. Contractor recognizes that OCA is paying Contractor to deliver the Services at specified Service Levels in the manner set forth in the Service Level Agreement. If Contractor fails to meet such Service Levels or if Contractor fails to deliver the performance monitoring Report within the timeframe set forth in the Service Level Agreement, then, in addition to other remedies available to OCA, Contractor shall pay to OCA the relevant Service Level Reimbursements in recognition of the diminished value of the Services resulting from Contractor’s failure to meet the agreed upon level of performance, and not as a penalty. Under no circumstances shall the imposition of Service Level Reimbursements be construed as OCA’s sole or exclusive remedy for any failure to meet the Service Levels.

5.3 Service Problem Analysis.

(a) Notification of Problems. If Contractor becomes aware of any Problem, then Contractor will immediately inform OCA in writing of such situation and promptly (but not later than two (2) days after the time in which Contractor first becomes aware of any such situation) provide OCA with a reasonably detailed description of such acts, omissions, failures or other events and the impact or expected impact, and Contractor Program Manager and OCA will meet to formulate and implement an action plan to minimize or eliminate the impact of such situation.

(b) Corrective Action Plan. In the event that either (i) OCA reasonably determines that a Problem has occurred or a Problem reasonably likely could occur or (ii) Contractor has determined that a Problem has occurred or a Problem reasonably likely could occur, then OCA or Contractor, as applicable, shall promptly (but not later than two (2) days after the time in which such Party first becomes aware of the Problem) notify the other Party of such failure or anticipated failure (a “CAP Notice”). Upon notice of a Problem or receipt of a CAP Notice, Contractor shall (1) immediately take steps to mitigate any harmful effects of such failure within its control,

(2) upon OCA’s approval, correct the problem as soon as practicable,

(3) continuously advise OCA of the progress and status of remedial efforts to resolve the Problem, and (4) demonstrate to OCA that all reasonable actions have been taken to prevent a recurrence of the Problem. Promptly upon resolution of the Problem (and in any event, within five (5) days after resolution of the Problem), Contractor shall perform a Root Cause Analysis, report to OCA the nature and scope of the Problems identified and prepare a Corrective Action Plan to correct the source of the Problem(s) and take all actions necessary to prevent their recurrence, including providing all additional resources necessary to resolve such Problem. Following delivery of a Corrective Action Plan and Acceptance of such Corrective Action Plan by OCA, Contractor shall, within the timeline set forth in the Corrective Action Plan, promptly correct the source of the Problem(s) in accordance with the Corrective Action Plan, advise OCA of the progress of correction efforts at stages determined by OCA, and demonstrate to OCA that all reasonable action has been taken to prevent a recurrence of the failure.

(c) Additional Remedies. In the event that Contractor fails to identify and resolve any Problems within its control that may impede or delay the timely delivery of the activities of the Statement of Work without prejudice to OCA’s other rights and remedies under this Agreement or at Law or equity, Contractor shall immediately provide, at its sole cost and expense, all such additional resources as are necessary to identify and resolve any such Problems that may impede or delay the delivery of the Implementation Services or the Services, as the case may be. In addition, without prejudice to OCA’s other rights and remedies under this Agreement or at Law or equity, OCA may equitably reduce the Charges in an amount reasonably estimated by OCA to account for the delayed or incomplete tasks in the Statement of Work or the Services that OCA is not receiving or did not receive.

6. CONTRACTOR PERSONNEL

6.1 Contractor Project Manager.

Contractor shall designate a Contractor Project Manager. The Contractor Project Manager shall (i) be a full-time employee of Contractor, (ii) devote his or her full time and effort to managing the Implementation Services, (iii) remain in this position until Contractor completes the Implementation Services in accordance with the Statement of Work (except as the result of voluntary resignation or involuntary termination for cause, illness, disability, or death, or other leave of absence protected by applicable Law (e.g., the Family and Medical Leave Act)),

(iv) serve as the single point of accountability for the Implementation Services, (v) be the single point of contact to whom all OCA communications concerning the Implementation Services and the Statement of Work may be addressed, (vi) have authority to act on behalf of Contractor in all day-to-day matters pertaining to the Implementation Services and the Statement of Work, and (vii) have day-to-day responsibility for ensuring timely delivery of all Deliverables and performance of the Implementation Services in accordance with the Statement of Work.

6.2 Contractor Program Manager.

Within ten (10) days from the Effective Date, Contractor shall designate a Contractor Program Manager and provide written notice to OCA of the identity and contact information of the designated Contractor Program Manager. The Contractor Program Manager shall (a) be a full-time employee of Contractor, (b) devote sufficient effort to manage the Services, (c) remain in this position for a minimum period of one (1) year from the Commencement Date (except as a result of voluntary resignation or involuntary termination for cause, death or disability, or other leave of absence protected by applicable Law (e.g., the Family and Medical Leave Act)), (d) serve as the single point of accountability for the Services, (e) be the single point of contact to whom all communications from OCA concerning this Agreement or the Services may be addressed, (f) have authority to act on behalf of Contractor in all day-to-day matters pertaining to this Agreement, (g) have day-to-day responsibility for service delivery, billing and relationship management, and

(h) have day-to-day responsibility for ensuring customer satisfaction and attainment of all Service Levels.

6.3 Contractor Personnel Are Not State or OCA Employees.

The Parties intend to create an independent contractor relationship and nothing in this Agreement shall operate and be construed as making the State and OCA, on the one hand, and Contractor, on the other hand, partners, joint venturers, principals, joint employers, agents or employees of or with the other. No officer, director, employee, agent, Affiliate of, or contractor or subcontractor retained by, Contractor to perform Services hereunder shall be deemed to be an officer, director, employee, agent, Affiliate, contractor or subcontractor of the State or OCA for any purpose. Contractor, and not the State or OCA, has the right, power, authority and duty to supervise and direct the activities of the Contractor Personnel and to compensate such Contractor Personnel for any Services performed by them hereunder. Except as expressly provided in this Agreement, neither Contractor nor any of Contractor’s employees, agents or Subcontractors may act in any sense as agents or representatives of OCA or the State. Contractor, and not the State or OCA, shall be fully responsible and therefore solely liable for all acts and omissions of Contractor Personnel in any way associated with or related to this Agreement, the Services, OCA Sites, Contractor Sites, OCA Confidential Information, or Equipment, including any and all acts and omissions constituting negligence, gross negligence, willful misconduct and/or fraud.

6.4 Responsibility for Contractor Personnel.

(a) Contractor Personnel and Subcontractors shall be paid exclusively by Contractor for all Services performed. Contractor is responsible for and must comply with all requirements and obligations related to such employees, agents or Subcontractors under local, State or federal law, including minimum wage, social security, unemployment insurance, State and federal Income Tax and workers’ compensation obligations.

(b) Contractor assumes sole and full responsibility for its acts and the acts of the Contractor Personnel and Subcontractors relating to the performance of this Agreement. Contractor expressly agrees that OCA does not and shall not assume any liability for the actions of, or judgments rendered against, the Contractor or any Contractor Personnel. OCA’s liability to the Contractor Personnel, if any, shall be governed by Chapter 101, Texas Civil Practice & Remedies Code.

(c) Contractor agrees that any claim on behalf of any person arising out of employment, alleged employment, agency or subcontracts (including claims of discrimination against Contractor, its officers, or its agents or its Subcontractors) is the sole responsibility of Contractor and is not the responsibility of OCA. Contractor agrees that any person who alleges a claim arising out of employment, alleged employment, agency, or subcontract by Contractor (including claims of discrimination against Contractor, its officers, its agents or its Subcontractors) will not be entitled to any compensation, rights, or benefits from OCA (including tenure rights, medical and hospital care, sick and annual/vacation leave, severance pay, or retirement benefits).

(d) Contractor shall demonstrate on‐site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of 1978, dealing with issuance of Form W‐2s to common‐law employees. Contractor is responsible for both federal and State unemployment insurance coverage and standard workers’ compensation insurance coverage. Contractor shall comply with all federal and State tax Laws and withholding requirements. The State of Texas shall not be liable to Contractor or its employees for any unemployment or workers’ compensation coverage, or federal or State withholding requirements.

6.5 Qualifications of Contractor Personnel.

(a) Contractor shall be responsible for verifying that all Contractor Personnel

(A) meet the criteria for Contractor Personnel under this Agreement, and

(B) have not been convicted of or accepted responsibility for a felony or a misdemeanor involving a dishonest or violent act, do not use illegal drugs and are not otherwise disqualified from performing their assigned Services under applicable Laws.

(b) Contractor shall comply with the requirements of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and the Immigration Act of 1990 (8 U.S.C. § 1101, et seq.) and any and all subsequent immigration laws and amendments.

(c) Background and/or Criminal History Investigations. Prior to the date any Contractor Personnel are assigned to OCA’s account, Contractor shall conduct, at its expense and in compliance with applicable Law, a background check, criminal history investigation, and substance abuse screening of each such member of the Contractor Personnel. Contractor Personnel background checks, criminal history investigations, and substance abuse screenings will include investigation of such matters as reasonably required by OCA, subject to the limitations of applicable Law.

Contractor shall maintain, in a reasonably accessible format and location, documentation evidencing that background checks, criminal history investigations and substance abuse screenings have been completed on all Contractor Personnel and will grant OCA access to such documentation upon request. Contractor will exercise reasonable care and diligence to ensure that Contractor does not assign individuals to the Contractor Personnel who are not legally authorized to work in the U.S. or who, based on the results of any background checks, criminal history investigations or substance abuse screenings, may present a threat to the safety or security of any person or any PSRS Data, facilities, operations, or assets.

6.6 Removal of Contactor Personnel.

Contractor shall immediately remove (or cause to be removed) any Contractor Personnel (i) known to be or reasonably suspected of engaging in activities that may present a threat to the safety or security of any person or any PSRS Data, facilities, operations, or assets or (ii) whose performance has been the subject of concern by OCA in that it is either deficient in work product or in responsiveness and such concerns have not been remedied within thirty (30) days following written notice to Contractor. In the case of reasonable suspicion, such removal shall be pending completion of the applicable investigation.

6.7 Union Agreements.

Contractor shall provide OCA not less than ninety (90) days’ notice of the expiration of any collective bargaining agreement with unionized Contractor Personnel if the expiration of such agreement or any resulting labor dispute could potentially interfere with or disrupt or impact the activities or operations of OCA or Contractor’s ability to timely perform the Services in accordance with this Agreement.

7. CONTRACTOR RESPONSIBILITIES

7.1 Reports, Data Correction, Re-Performance.

(a) Reports. In addition to any other reports required by this Agreement, Contractor shall provide OCA with (i) those reports described in the Statement of Work, (ii) those reports described in the Service Level Agreement, and (iii) such additional reports as OCA may reasonably identify from time to time to be generated and delivered by Contractor on an ad hoc or periodic basis (all such reports, the “Reports”).

(b) Back-Up Documentation. As part of the Services, Contractor shall retain, and provide OCA with, such documentation and other information available to Contractor (including original source documentation and data in its native format or in an alternative industry-standard format as requested by OCA) as may be requested by OCA from time to time in order to verify the accuracy of the Reports provided by Contractor. In addition, Contractor shall retain, and provide OCA with, all documentation and other information reasonably requested by OCA from time to time to verify that Contractor’s performance of the Services complies with the Service Levels and this Agreement.

(c) Correction of Errors. Contractor shall promptly, but not more than two (2) days from the time in which Contractor first becomes aware of any errors or inaccuracies with respect to the Reports, correct any such errors or inaccuracies as part of the Services and at no additional cost to OCA.

(d) System Documentation. Upon at least fifteen (15) Business Days’ notice from OCA (but no more than twice in a Contract Year), Contractor will meet with representatives of OCA and any of its designees to (i) explain how the Services are provided, and (ii) provide such training and documentation as OCA may require for OCA to (A) provide services that interact with or interface with the Services, and (B) understand and operate the Software.

Upon OCA’s request from time to time, Contractor will deliver to OCA a full description of the processes, tools and environmental configuration related to the Services.

7.2 Internal Controls.

(a) General. Contractor shall develop and implement Quality Assurance and to the extent applicable any customized Service-specific internal control (e.g., financial and accounting controls, organizational controls, input/output controls, system modification controls, processing controls, system design controls and access controls) processes and procedures, including implementing tools and methodologies, to perform the Services in an accurate and timely manner (and confirm that they are so performed and accounted for) in accordance with (i) the Service Levels and other requirements of this Agreement, (ii) generally accepted accounting principles (applied in accordance with generally accepted auditing standards), (iii) accepted industry standards of first tier providers of services that are the same as or similar to the Services, (iv) the Laws applicable to OCA (without limiting the obligations of the Parties under Section 14.10), and (v) the industry standards, described in Section 7.2(b), applicable to OCA and the performance of the Services. Such processes, procedures and controls shall include verification, checkpoint reviews, testing, acceptance and other procedures for OCA to assure the quality and timeliness of Contractor’s performance. Without limiting the generality of the foregoing, Contractor shall:

(i) Maintain a strong control environment in day-to-day operations to assure that the following fundamental control objectives are met: (A) financial, billing and operational information is valid, timely, complete and accurate; (B) operations are performed efficiently and achieve effective results, consistent with the requirements of this Agreement;

(C) assets and data are safeguarded in accordance with Contractor’s internal (and in all events reasonable) practices (but without expanding Contractor’s obligations under Section 12.2(b)); and (D) actions and decisions of Contractor are in compliance with Laws (without limiting the obligation of the Parties under Section 14.10) and the terms of this Agreement;

(ii) Build the following basic control activities into work processes:

(A) accountability clearly defined and understood; (B) access properly controlled; (C) adequate supervision; (D) transactions properly authorized; (E) transactions properly recorded; (F) transactions recorded in proper accounting period; (G) policies, procedures and responsibilities documented; (H) adequate training and education of Contractor Personnel; and (I) adequate separation of duties among the Parties;

(iii) Develop and execute a process to perform (and confirm performance

of) periodic control self-assessments with respect to all Services (such self-assessments to be performed at least annually unless and until OCA approves less frequent self-assessments) and provide the results of such self-assessments to OCA upon request;

(iv) Maintain an internal audit function set forth in the change management plan developed as part of the Statement of Work to sufficiently monitor the processes, internal controls and systems used to provide the Services in accordance with the Service Level Requirements (e.g., perform audits, track control measures, communicate status to management, drive corrective action);

(v) Provide copies and complete and accurate summaries of any internal audit reports related to the Services to OCA;

(vi) Conduct investigations of suspected fraudulent activities within Contractor’s organization. Contractor shall promptly (but not more than two (2) days from the time in which Contractor first becomes aware of any such situation) notify OCA of any such suspected fraudulent activity and provide OCA with a reasonable summary of the results of any such investigation as they relate to OCA and such supplemental materials as OCA may reasonably request. At Contractor’s request, OCA shall provide reasonable assistance to Contractor in connection with any such investigation;

(vii) Maintain disaster avoidance procedures designed to safeguard PSRS Data and OCA’s other Confidential Information. The force majeure provision shall not limit Contractor’s obligation under Section 7.2;

(viii) Utilize a high-availability fail-over system at a data center facility in the United States that is geographically remote from the primary system on which the Services are hosted (the “Secondary Backup Facility”). Except for its location and housing facility, the fail-over system shall (A) be, from the Authorized User’s perspective, identical in all respects to the primary system, (B) have hardware and software, network connectivity, power supplies, backup generators, and other similar equipment and services that operate independently of the primary system, (C) have current PSRS Data stored on the primary system, and (D) have the ability to provide the Services during the performance of routine and remedial maintenance or any outage or failure of the primary system. Contractor shall operate, monitor and maintain such fail-over system so that it may be activated within two (2) hours or less of any failure of the Services to be Available;

(ix) Conduct contemporaneous backups of PSRS Data and all Software necessary for the operation of the PSRS and Services; perform or cause to be performed other periodic backups of PSRS Data and Software and store such backup of PSRS Data and Software at the Secondary Backup Facility. On written notice from OCA, Contractor shall provide OCA with a copy of the backed up PSRS Data and Software in such machine-readable format as OCA requests. No backup of PSRS Data and Software shall be counted in allotting or calculating any data storage used or permitted to be used by OCA or any associated payment or fee; and

(x) In accordance with Texas Administrative Code, Title 13, Part 1, Chapter 6, Subchapter C, §6.94(a)(9) and the Statement of Work, provide to OCA the description of its Disaster Recovery Plan.

Contractor shall maintain the Disaster Recovery Plan for the Services and implement such Disaster Recovery Plan in the event of any unplanned interruption of the Services. Contractor shall actively test, review, and update the Disaster Recovery Plan at least on an annual basis using industry best practices, and provide OCA with copies of all reports and summaries resulting from any testing of or pursuant to the Disaster Recovery Plan within five (5) Business Days after Contractor’s receipt or preparation thereof. Contractor shall provide OCA with copies of all such updates to the Disaster Recovery Plan within five (5) Business Days of its adoption. If Contractor fails to reinstate the Services within the period of time set forth in the Disaster Recovery Plan, OCA may, in addition to any other remedies available hereunder, in its sole discretion, immediately terminate this Agreement as a non-curable default.

(b) Industry Standards, Certifications and Compliance. Contractor shall comply with industry standards and certifications applicable to the Services.

7.3 Change Control.

(a) Prohibition on Unauthorized Changes. Contractor shall not, without OCA’s prior written approval, which approval may be withheld in OCA’s sole discretion, make any change that may (i) increase OCA’s total cost of receiving the Services; (ii) require material changes to, or have an adverse impact on, any Authorized User’s operations, facilities, processes, systems, software, utilities, tools or equipment; (iii) require OCA or any Authorized Users to install, at its cost or expense, a new version, release, upgrade of or replacement for any Software or Equipment or to modify any Software or Equipment; (iv) have an adverse impact on the functionality, interoperability, performance, accuracy, speed, responsiveness, quality or resource efficiency of the Services; (v) have an adverse impact on the cost, either actual or planned, to OCA of terminating this Agreement, in whole or in part, or on OCA’s rights to in-source or use third parties; (vi) have an adverse impact on OCA’s or any Authorized User’s environment (including its flexibility to deal with future changes, interoperability and its stability); (vii) introduce new technology to (A) OCA’s or any Authorized User’s environment or operations or (B) Contractor’s environment, to the extent that such introduction has or may have an adverse impact on OCA’s or any Authorized User’s environment; (viii) have an adverse impact on the functionality, interoperability, performance, accuracy, speed, responsiveness, quality, cost or resource efficiency of the Services; (ix) increase the risk of Contractor not being able to provide the Services in accordance with this Agreement; or (x) violate or be inconsistent with OCA Standards or applicable Laws. If Contractor desires to make such a change, it shall provide to OCA a written risk assessment and mitigation plan.

(b) Financial Responsibility for Changes. Unless otherwise set forth in this Agreement or otherwise expressly approved by OCA in writing, Contractor shall bear all charges, fees and costs associated with any change desired by Contractor, including all charges, fees and costs associated with (i) the design, installation, implementation, testing and rollout of such change, (ii) any modification or enhancement to, or substitution for, any impacted process or associated Materials, Equipment, or Services, and (iii) any increase in the cost to OCA or to Authorized Users of operating, maintaining or supporting any impacted process or associated Materials, Equipment, or Services.

(c) Scheduled Downtime. Contractor shall notify OCA of all scheduled outages within the time frame afforded in the Service Level Agreement (“Scheduled Downtime”). All such scheduled outages shall be in accordance with the Infrastructure Services Plan. Contractor may request

OCA’s approval for extensions of the Scheduled Downtime, which approval may be granted in OCA’s sole discretion.

(d) Implementation of Changes. Contractor shall schedule and implement all changes made in accordance with this Section 7.3 so as not to materially

(i) disrupt or adversely impact the operations of OCA, (ii) degrade the Services or any other services then being received by OCA, or (iii) interfere with OCA’s ability to obtain the full benefit of the Services or any other services then being received by OCA.

(e) Planning and Tracking. On a monthly basis, Contractor shall prepare, with OCA’s participation and approval, a rolling quarterly “look ahead” schedule for ongoing and planned changes for the next three (3) months. The status of changes shall be monitored and tracked by Contractor against the applicable schedule.

7.4 Subcontractors.

(a) Use of…