ESBD_471938_1763741288082_Attachment 02 Data Use Agreement.pdf

IFB No. 3202600062 Attachment 02 Data Use Agreement Revised May 2024

ATTACHMENT 02 – DATA USE

AGREEMENT

DATA USE

AGREEMENT

BETWEEN THE

TEXAS WORKFORCE

COMMISSION AND

CONTRACTOR

This Data Use Agreement (DUA) is effective as of the date of the Base Contract (Effective Date) into which it is incorporated, by and between the Texas Workforce Commission (TWC) and Contractor (Base Contract).

ARTICLE 1. PURPOSE; APPLICABILITY; ORDER OF PRECEDENCE

The purpose of this DUA is to facilitate access to, creation, receipt, maintenance, use, disclosure, or transmission of Confidential Information with Contractor, and describe Contractor’s rights and obligations with respect to the Confidential Information and the limited purposes for which the Contractor may create, receive, maintain, use, disclose or have access to Confidential Information. This DUA also describes TWC’s remedies in the event of Contractor’s noncompliance with its obligations under this DUA. TWC requires its contractors to comply with the terms of this DUA to safeguard all Confidential Information.

As of the Effective Date of this DUA, if any provision of the Base Contract conflicts with this DUA, this DUA controls.

ARTICLE 2. DEFINITIONS

For the purposes of this DUA, the following terms have the following meanings:

Authorized Purpose means the specific purpose or purposes described in the Base Contract for Contractor to fulfill its obligations under the Base Contract, or any other purpose expressly authorized by TWC in writing in advance.

Authorized User means a person:

1. Who is authorized to create, receive, maintain, have access to, process, view, handle, examine, interpret, or analyze Confidential Information pursuant to this DUA;

2. For whom Contractor warrants and represents has a demonstrable need to create, receive, maintain, use, disclose or have access to the Confidential Information; and

3. Who has agreed in writing to be bound by the disclosure and use limitations pertaining to the Confidential Information as required by this DUA.

Breach means an impermissible use or disclosure of electronic or non-electronic sensitive personal information by an unauthorized person or for an unauthorized purpose that compromises the security or privacy of Confidential Information such that the use or disclosure poses a risk of reputational harm, theft of financial information, identify theft, or medical identity theft. Any suspicion or actual event of acquisition, access, use, disclosure, or loss of Confidential Information other than as permitted by this DUA shall be presumed to be a Breach unless Contractor demonstrates to TWC, based on a risk assessment approved by TWC, that there is a low probability that the Confidential Information has been compromised.

Confidential Information means any communication or record (whether oral, written, electronically stored or transmitted, or in any other form) describing an individual or entity provided to or made available to Contractor or that Contractor may create, receive, maintain, use, disclose or have access to on behalf of TWC or during the course of performance under the base contract, including this Data Use Agreement. Confidential information may be subject to federal or state laws or regulations, and any subsequent amendments thereto, including, but not limited to, any or all of the following: Unemployment Compensation records as defined in the Texas Unemployment Compensation Act and related federal laws and regulations, including 20 C.F.R. 603;

1. Vocational Rehabilitation Services records as defined in 34 C.F.R. 361;

2. Education records as defined in the Family Educational Rights and Privacy Act, 20 U.S.C. §1232g; 34 C.F.R. Part 99;

3. Federal Tax Information as defined in Internal Revenue Code §6103 and Internal Revenue Service Publication 1075;

4. Personal Identifying Information (PII) as defined in Texas Business and Commerce Code, Chapter 521;

5. Sensitive Personal Information (SPI) as defined in Texas Business and Commerce Code, Chapter 521;

6. Social Security Administration Data, including, without limitation, Medicaid information means disclosures of information made by the Social Security Administration or the Centers for Medicare and Medicaid Services from a federal system of records for administration of federally funded benefit programs under the Social Security Act, 42 U.S.C., Chapter 7;

7. All privileged work product;

8. All information designated as confidential under the constitution and laws of the State of Texas and of the United States, including the Texas Health & Safety Code and the Texas Public Information Act, Texas Government Code, Chapter 552.

Destroy, Destruction, for Confidential Information, means:

1. Paper, film, or other hard copy media have been shredded or destroyed such that the Confidential Information cannot be read or otherwise cannot be reconstructed. Redaction is specifically excluded as a means of data destruction.

2. Electronic media have been cleared, purged, or destroyed consistent with NIST Special Publication 800-88, Rev. 1, "Guidelines for Media Sanitization," such that the Confidential Information cannot be retrieved.

Discover, Discovery means the first day on which a Breach becomes suspected or known to Contractor, or, by exercising reasonable diligence would have been suspected or known to Contractor.

Legally Authorized Representative of an individual, including as provided in 42 CFR 435.923 (authorized representative); 45 CFR 164.502(g)(1) (personal representative); Tex. Occ. Code § 151.002(6);

Tex. H. & S. Code §166.164 (medical power of attorney); 34 CFR §361.5(c)(31) (individual’s representative); and Texas Estates Code § 22.031 (representative).

Required by Law means a mandate contained in law that compels an entity to use or disclose Confidential Information that is enforceable in a court of law, including court orders, warrants, subpoenas or investigative demands.

Security Incident means a breach or suspected breach of system security as defined by Section 521.053, Business & Commerce Code; or the introduction of ransomware, as defined by Section 33.023, Penal Code, into a computer, computer network, or computer system.

Subcontractor means a person or entity who contracts with a prime contractor to work, to supply commodities, or to contribute toward completing work for a governmental entity.

Workforce means employees, volunteers, trainees or other persons whose performance of work is under the direct control of a party, whether or not they are paid by that party.

ARTICLE 3. CONTRACTOR'S DUTIES REGARDING CONFIDENTIAL

INFORMATION

Section 3.01 Obligations of Contractor

Contractor agrees that:

A. With respect to ALL Confidential Information, Contractor shall:

1. Exercise reasonable care and no less than the same degree of care Contractor uses to protect its own confidential, proprietary and trade secret information to prevent Confidential Information from being used in a manner that is not expressly an Authorized Purpose or as Required by Law. Contractor will access, create, maintain, receive, use, disclose, transmit or Destroy Confidential Information in a secure fashion that protects against any reasonably anticipated threats or hazards to the security or integrity of such information or unauthorized uses.

2. Establish, implement, and maintain appropriate procedural, administrative, physical, and technical safeguards to preserve and maintain the confidentiality, integrity, and availability of the Confidential Information, in accordance with applicable laws or regulations relating to Confidential Information, to prevent any unauthorized use or disclosure of Confidential Information as long as Contractor has such Confidential Information in its actual or constructive possession.

3. Implement, update as necessary, and document privacy, security and Breach notice policies and procedures and an incident response plan to address a Breach, to comply with the privacy, security and breach notice requirements of this DUA prior to conducting work under the Base Contract. Contractor shall produce, within three (3) business days of a request by TWC, copies of its policies and procedures and records relating to the use or disclosure of Confidential Information.

4. Obtain TWC’s prior written consent to disclose or allow access to any portion of the Confidential Information to any person, other than Authorized Users, Workforce or Subcontractors of Contractor who have completed training in confidentiality, privacy, security, and the importance of promptly reporting any Breach to Contractor's management. Contractor shall produce evidence of completed training to TWC upon request. TWC, at its election, may assist Contractor in training and education on specific or unique TWC processes, systems and/or requirements. All of Contractor’s Authorized Users, Workforce and Subcontractors with access to a state computer system or database will complete a cybersecurity training program certified under Texas Government Code §

2054.519 by the Texas Department of Information Resources.

5. Establish, implement, and maintain appropriate sanctions against any member of its Workforce or Subcontractor who fails to comply with this DUA, the Base Contract or applicable law. Contractor shall maintain evidence of sanctions and produce it to TWC each time a sanction is imposed and when TWC requests information related to sanctions.

6. Obtain prior written approval of TWC, to disclose or provide access to any Confidential Information on the basis that such act is Required by Law, so that TWC may have the opportunity to object to the disclosure or access and seek appropriate relief. If TWC objects to such disclosure or access, Contractor shall refrain from disclosing or providing access to the Confidential Information until TWC has exhausted all alternatives for relief.

7. Certify that its Authorized Users each have a demonstrated need to know and have access to Confidential Information solely to the minimum extent necessary to accomplish the Authorized Purpose and that each has agreed in writing to be bound by the disclosure and use limitations pertaining to the Confidential Information contained in this DUA. Contractor and its Subcontractors shall maintain at all times an updated, complete, accurate list of

IFB No. 320260062 Attachment 02 Data Use Agreement Revised May 2024

Authorized Users and supply it to TWC upon request.

8. Provide, and shall cause its Subcontractors and agents to provide, to TWC periodic written confirmation of compliance with controls and the terms and conditions of this DUA.

9. Return to TWC or Destroy, at TWC’s election and at Contractor’s expense, all Confidential Information received from TWC or created or maintained by Contractor or any of Contractor’s agents or Subcontractors on TWC's behalf upon the termination or expiration of this DUA, if reasonably feasible and permitted by law. Contractor shall certify in writing to TWC that all such Confidential Information has been Destroyed or returned to TWC, and that Contractor and its agents and Subcontractors have retained no copies thereof.

10. Notwithstanding the foregoing, Contractor acknowledges and agrees that it may not Destroy any Confidential Information if federal or state law, or TWC record retention policy, or a litigation hold notice prohibits such Destruction. If such return or Destruction is not reasonably feasible, or is impermissible by law, Contractor shall immediately notify TWC of the reasons such return, or Destruction is not feasible and agree to extend the protections of this DUA to the Confidential Information for as long as Contractor maintains such Confidential Information.

11. Complete and return with the Base Contract to TWC, the TWC Security and Privacy Initial Inquiry (SPI) attached as Form 5 to this Solicitation. The SPI identifies basic privacy and security controls with which Contractor must comply to protect Confidential Information. Contractor shall comply with periodic security controls compliance assessment and monitoring by TWC as required by state and federal law, based on the type of Confidential Information Contractor creates, receives, maintains, uses, discloses, or has access to and the Authorized Purpose and level of risk. Contractor's security controls shall be based on the National Institute of Standards and Technology (NIST) Special Publication 800-53, Rev. 5. Contractor shall update its security controls assessment whenever there are significant changes in security controls for TWC Confidential Information and shall provide the updated document to TWC. TWC also reserves the right to request updates as needed to satisfy state and federal monitoring requirements.

12. Comply with the TWC Acceptable Use Policy (AUP)and require each Subcontractor and Workforce member who has direct access to TWC Information Resources, as defined in the AUP, to execute an TWC Acceptable Use Agreement, as applicable.

13. Only conduct secure transmissions of Confidential Information whether in paper, oral or electronic form. A secure transmission of electronic Confidential Information in motion includes secure File Transfer Protocol (SFTP) or encryption at an appropriate level as required by rule, regulation or law. Confidential Information at rest requires encryption. All electronic data transfer and communications of Confidential Information shall be through secure systems.

14. Contractor shall provide proof of system, media, or device security and/or encryption to TWC no later than 48 hours after TWC's written request in response to a compliance investigation, audit, or the Discovery of a Breach.

15. Designate and identify a person or persons, as Privacy Official and Information Security Official, each of whom is authorized to act on behalf of Contractor and is responsible for the development and implementation of the privacy and security requirements in this DUA. Contractor shall provide name and current address, phone number and e-mail address for such designated officials to TWC upon execution of this DUA and prior to any change. Upon written notice from TWC, Contractor shall promptly remove and replace such official(s) if such official(s) is not performing the required functions.

16. Make available to TWC any information TWC requires to fulfill TWC's obligations to provide access to, or copies of, Confidential Information in accordance with applicable laws, regulations or demands of a regulatory authority relating to Confidential Information. Contractor shall provide such information in a time and manner reasonably agreed upon or as designated by the applicable law or regulatory authority.

17. IF CONTRACTOR IS A “COVERED ENTITY” PURSUANT TO HEALTH

INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996

(HIPAA) AND TRANSFERS DATA TO TWC, THE CONTRACTOR IS

RESPONSIBLE FOR OBTAINING THE DATA SUBJECT’S INFORMED

CONSENT AND FOR NOTIFYING THE DATA SUBJECT THAT ANY

INFORMATION THAT IS “PROTECTED HEALTH INFORMATION”

PURSUANT TO HIPAA WHILE IT IS HELD BY THE COVERED

ENTITY WILL NO LONGER BE SUBJECT TO HIPAA PROTECTIONS

ONCE IT IS TRANSFERRED TO TWC.

18. Comply with the following laws and standards if applicable to the type of Confidential Information and Contractor's Authorized Purpose:

• Title 1, Part 10, Chapter 202, Subchapter B, Texas Administrative Code;

• The Privacy Act of 1974;

• OMB Memorandum 17-12;

• The Federal Information Security Management Act of

2002 (FISMA);

• Internal Revenue Publication 1075 – Tax Information Security Guidelines for Federal, State and Local Agencies;

• NIST Special Publications 800-53 and 800-53A – Recommended Security Controls for Federal Information Systems and Organizations, as currently revised;

• NIST Special Publication 800-47 – Security Guide for Interconnecting Information Technology Systems;

• NIST Special Publication 800-88, Rev 1, Guidelines for Media Sanitization;

• NIST Special Publication 800-111, Guide to Storage of Encryption Technologies for End User Devices containing

PHI;

• Federal Information Processing Standards 140-3 (or more recent validated mechanisms)

• Family Educational Rights and Privacy Act

• Texas Business and Commerce Code, Chapter 521;

• Any other State or Federal law, regulation, or administrative rule relating to the specific TWC program area that Contractor supports on behalf of TWC.

19. Be permitted to use or disclose Confidential Information for the proper management and administration of Contractor or to carry out Contractor’s legal responsibilities, except as otherwise limited by this DUA, the Base Contract, or law applicable to the Confidential Information, if:

(a) Disclosure is Required by Law;

(b) Contractor obtains reasonable assurances from the person to whom the information is disclosed that the person shall:

i. Maintain the confidentiality of the Confidential Information in accordance with this DUA;

ii. Use or further disclose the information only as Required by Law or for the Authorized Purpose for which it was disclosed to the person; and

iii. Notify Contractor in accordance with Section 4.01 of a Breach of Confidential Information that the person Discovers or should have Discovered with the exercise of reasonable diligence.

B. With respect to ALL Confidential Information, Contractor shall

NOT:

1. Attempt to re-identify or further identify Confidential Information that has been de-identified or attempt to contact any persons whose records are contained in the Confidential Information, except for an Authorized Purpose, without express written authorization from TWC.

2. Engage in prohibited marketing or sale of Confidential Information without the express written consent of TWC.

3. Permit, or enter into any agreement with a Subcontractor to, create, receive, maintain, use, disclose, have access to or transmit Confidential Information, on behalf of TWC without notifying TWC in advance and requiring that Subcontractor first execute either the Form Subcontractor Agreement, Attachment A, or Contractor’s own Subcontractor agreement that ensures that the Subcontractor shall comply with the same safeguards and restrictions contained in this

DUA for Confidential Information. Contractor is directly responsible for its Subcontractors’ compliance with, and enforcement of, this

DUA.

ARTICLE 4. BREACH NOTICE, REPORTING AND CORRECTION

REQUIREMENTS

Section 4.01. Cooperation and Financial Responsibility.

(A) Contractor shall, at Contractor’s expense, cooperate fully with TWC in investigating, mitigating and issuing notifications as directed by TWC, for any Breach of Confidential Information.

(B) Contractor shall make Confidential Information in Contractor’s possession available pursuant to the requirements of any applicable law or regulation upon a determination of a Breach.

(C) Contractor’s obligation begins at the Discovery of a Breach and continues as long as related activity continues, until all effects of the Breach are mitigated to TWC’s satisfaction (the "incident response period").

Section 4.02. Initial Breach Notice.

For federal information obtained from a federal system of records, including Federal Tax Information and Social Security Administration Data (which includes Medicaid and other governmental benefit program Confidential Information), Contractor shall notify TWC of the Breach within the first consecutive clock hour of Discovery. The Base Contract shall specify whether Confidential Information is obtained from a federal system of records. For all other types of Confidential Information Contractor shall notify TWC of the Breach not more than 12 chronological hours after Discovery. Contractor shall initially report to TWC's Privacy and Security Officers via email at: ciso@twc.texas.gov, risk.securitymanagement@twc.texas.gov with a copy to the TWC Privacy Advisor at privacy.advisor@twc.texas.gov, and to the TWC division responsible for the Base Contract.

Contractor shall report all information reasonably available to Contractor about the Breach. Contractor shall provide contact information to TWC for Contractor's single point of contact who will communicate with TWC both on and off business hours during the incident response period.

mailto:ciso@twc.texas.gov

Section 4.03. Twelve Chronological Hours Notice.

No later than twelve (12) chronological hours after Discovery, or a time within which Discovery reasonably should have been made by Contractor of a Breach of Confidential Information, Contractor shall provide written notification to TWC of all reasonably available information about the Breach, and Contractor's investigation, including, to the extent known to Contractor:

1. The date the Breach occurred;

2. The date of Contractor's and, if applicable, Subcontractor's Discovery;

3. A brief description of the Breach, including how it occurred and who is responsible (or hypotheses, if not yet determined);

4. A brief description of Contractor's investigation and the status of the investigation;

5. A description of the types and amount of Confidential Information involved;

6. Identification of and number of all individuals reasonably believed to be affected, including first and last name of the individual and if applicable, the Legally authorized representative, last known address, age, telephone number, and email address if it is a preferred contact method;

7. Contractor’s initial risk assessment of the Breach demonstrating whether individual or other notices are required by applicable law or this DUA for TWC approval, including an analysis of whether there is a low probability of compromise of the Confidential Information or whether any legal exceptions to notification apply;

8. Contractor's recommendation for TWC’s approval as to the steps individuals and/or Contractor on behalf of individuals, should take to protect the individuals from potential harm, including Contractor’s provision of notifications, credit protection, claims monitoring, and any specific protections for a Legally Authorized Representative to take on behalf of an individual with special capacity or circumstances;

9. The steps Contractor has taken to mitigate the harm or potential harm caused (including without limitation the provision of sufficient resources to mitigate);

10. The steps Contractor has taken, or will take, to prevent or reduce the likelihood of recurrence of a similar Breach;

11. Identify, describe, or estimate of the persons, Workforce, Subcontractor, or individuals and any law enforcement that may be involved in the Breach;

12. A reasonable schedule for Contractor to provide regular updates regarding response to the Breach, but no less than every three

(3) business days, or as otherwise directed by TWC in writing, including information about risk estimations, reporting, notification, if any, mitigation, corrective action, root cause analysis and when such activities are expected to be completed;

and

13. Any reasonably available, pertinent information, documents or reports related to a Breach that TWC requests following Discovery.

Section 4.04. Investigation, Response and Mitigation.

(A) Contractor shall immediately conduct a full and complete investigation, respond to the Breach, commit necessary and appropriate staff and resources to expeditiously respond, and report as required to TWC for incident response purposes and for purposes of TWC’s compliance with report and notification requirements, to the satisfaction of TWC.

(B) Contractor shall complete or participate in a risk assessment as directed by TWC following a Breach, and provide the final assessment, corrective actions and mitigations to TWC for review and approval.

(C) Contractor shall fully cooperate with TWC to respond to inquiries and/or proceedings by state and federal authorities, persons and/or individuals about the Breach.

(D) Contractor shall fully cooperate with TWC's efforts to seek appropriate injunctive relief or otherwise prevent or curtail such Breach, or to recover or protect any Confidential Information, including complying with reasonable corrective action or measures, as specified by TWC in a Corrective Action Plan if directed by TWC under the Base Contract.

Section 4.05. Breach Notification to Individuals and Reporting to Authorities.

(A) TWC may direct Contractor to provide Breach notification to individuals, regulators or third parties, as specified by TWC following a Breach.

(B) Contractor must comply with all applicable legal and regulatory requirements in the time, manner and content of any notification to individuals, regulators or third-parties, or any notice required by other state or federal authorities, including without limitation, notifications required by Texas Business and Commerce Code, and other applicable laws. Notice letters will be in Contractor's name and on Contractor's letterhead, unless otherwise directed by TWC, and will contain contact information, including the name and title of Contractor's representative, an email address and a toll-free telephone number, for the individual to obtain additional information.

(C) Contractor shall provide TWC with draft notifications for TWC approval prior to distribution and copies of distributed and approved communications.

(D) Contractor shall have the burden of demonstrating to the satisfaction of TWC that any required notification was timely made. If there are delays outside of Contractor's control, Contractor shall provide written documentation to TWC of the reasons for the delay.

(E) If TWC directs Contractor to provide notifications, TWC shall, in the time and manner reasonably requested by Contractor, cooperate and assist with Contractor’s information requests in order to make such notifications.

ARTICLE 5. GENERAL PROVISIONS

Section 5.01. Ownership of Confidential Information

Contractor acknowledges and agrees that the Confidential Information is and shall remain the property of TWC. Contractor agrees it acquires no title or rights to the Confidential Information.

Section 5.02. TWC Commitment and Obligations

TWC will not request Contractor to create, maintain, transmit, use, or disclose PHI in any manner that would not be permissible under applicable law if done by TWC.

Section 5.03. TWC Right to Inspection

At any time upon reasonable notice to Contractor, or if TWC determines that Contractor has violated this DUA, TWC, directly or through its agent, will have the right to inspect the facilities, systems, books, and records of Contractor to monitor compliance with this DUA. For purposes of this subsection, TWC’s agent(s) include, without limitation, the TWC Office of the Inspector General, the Office of the Attorney General of Texas, the State Auditor’s Office, outside consultants, legal counsel or other designee.

Section 5.04. Term; Termination of DUA; Survival

This DUA will be effective on the date on which Contractor executes the Base Contract and will terminate upon termination of the Base Contract and as set forth herein. If the Base Contract is extended, this DUA is extended to run concurrent with the Base Contract.

(A) If TWC determines that Contractor has violated a material term of this DUA; TWC may in its sole discretion:

1. Exercise any of its rights including but not limited to reports, access and inspection under this DUA and/or the Base Contract; or

2. Require Contractor to submit to a corrective action plan, including a plan for monitoring and plan for reporting as TWC may determine necessary to maintain compliance with this DUA; or

3. Provide Contractor with a reasonable period to cure the violation as determined by TWC; or

4. Terminate the DUA and Base Contract immediately and seek relief in a court of competent jurisdiction in Travis County, Texas.

Before exercising any of these options, TWC will provide written notice to Contractor describing the violation and the action it intends to take.

(B) If neither termination nor cure is feasible, TWC shall report the violation to the applicable regulatory authorities.

(C) The duties of Contractor or its Subcontractor under this DUA survive the expiration or termination of this DUA until all the Confidential Information is Destroyed or returned to TWC, as required by this DUA.

Section 5.05. Injunctive Relief

(A) Contractor acknowledges and agrees that TWC may suffer irreparable injury if Contractor or its Subcontractor fails to comply with any of the terms of this DUA with respect to the Confidential Information or a provision of other applicable laws or regulations.

(B) Contractor further agrees that monetary damages may be inadequate to compensate TWC for Contractor's or its Subcontractor's failure to comply. Accordingly, Contractor agrees that TWC will, in addition to any other remedies available to it at law or in equity, be entitled to seek injunctive relief without posting a bond and without the necessity of demonstrating actual damages, to enforce the terms of this DUA.

Section 5.06. Indemnification

CONTRACTOR SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS TWC

AND ITS RESPECTIVE EXECUTIVES, COMMISSIONERS, EMPLOYEES,

SUBCONTRACTORS, AGENTS (INCLUDING OTHER STATE AGENCIES

ACTING ON BEHALF OF TWC) OR OTHER MEMBERS OF TWC’ WORKFORCE

COMMISSION (EACH OF THE FOREGOING HEREINAFTER REFERRED TO AS

“INDEMNIFIED PARTY”) AGAINST ALL ACTUAL AND DIRECT LOSSES

SUFFERED BY THE INDEMNIFIED PARTY AND ALL LIABILITY TO THIRD

PARTIES ARISING FROM OR IN CONNECTION WITH ANY BREACH OF THIS

DUA OR FROM ANY ACTS OR OMISSIONS RELATED TO THIS DUA BY

CONTRACTOR OR ITS EMPLOYEES, DIRECTORS, OFFICERS,

SUBCONTRACTORS, OR AGENTS OR OTHER MEMBERS OF CONTRACTOR’S

WORKFORCE. THE DUTY TO INDEMNIFY, DEFEND AND HOLD HARMLESS

IS INDEPENDENT OF THE DUTY TO INSURE. UPON DEMAND,

CONTRACTOR SHALL REIMBURSE TWC FOR ANY AND ALL LOSSES,

LIABILITIES, LOST PROFITS, FINES, PENALTIES, COSTS OR EXPENSES

(INCLUDING COSTS OF REQUIRED NOTICES, INVESTIGATION, AND

MITIGATION OF A BREACH, FINES OR PENALTIES IMPOSED ON AN

INDEMNIFIED PARTY BY A REGULATORY AUTHORITY, AND REASONABLE

ATTORNEYS’ FEES) WHICH MAY BE IMPOSED UPON ANY INDEMNIFIED

PARTY TO THE EXTENT CAUSED BY AND WHICH RESULTS FROM THE

CONTRACTOR’S FAILURE TO MEET ANY OF ITS OBLIGATIONS UNDER THIS

DUA. CONTRACTOR’S OBLIGATION TO DEFEND, INDEMNIFY AND HOLD

HARMLESS ANY INDEMNIFIED PARTY WILL SURVIVE THE EXPIRATION OR

TERMINATION OF THIS DUA.

Section 5.07. Insurance

(A) In addition to any insurance required in the Base Contract, at TWC's option, TWC may require Contractor to maintain, at its expense, the special and/or custom first- and third-party insurance coverages, including without limitation data breach, cyber liability, crime theft and notification expense coverages, with policy limits sufficient to cover any liability arising under this DUA, naming the State of Texas, acting through TWC, as an additional named insured and loss payee, with primary and noncontributory status.

(B) Contractor shall provide TWC with written proof that required insurance coverage is in effect, at the request of

TWC.

Section 5.08. Entirety of the Contract

This DUA is incorporated by reference into the Base Contract and, together with the Base Contract, constitutes the entire agreement between the parties. No change, waiver, or discharge of obligations arising under those documents will be valid unless in writing and executed by the party against whom such change, waiver, or discharge is sought to be enforced.

Section 5.09. Automatic Amendment and Interpretation

Upon the effective date of any amendment or issuance of additional regulations to any law applicable to Confidential Information, this DUA will automatically be amended so that the obligations imposed on TWC and/or Contractor remain in compliance with such requirements. Any ambiguity in this DUA will be resolved in favor of a meaning that permits TWC and Contractor to comply with laws applicable to Confidential Information.

Section 5.10. Notices; Requests for Approval All notices and requests for approval related to this DUA must be directed to the TWC Chief Information Security Officer at ciso@twc.texas.gov, the TWC Chief Privacy Officer at mailto:ciso@twc.texas.gov risk.securitymanagement@twc.texas.gov with a copy to the TWC Privacy Advisor at privacy.advisor@twc.texas.gov.

mailto:risk.securitymanagement@twc.texas.gov%20with%20a%20copy%20to%20the%20TWC%20Privacy%20Advisor%20at%20privacy.advisor@twc.texas.gov.

mailto:risk.securitymanagement@twc.texas.gov%20with%20a%20copy%20to%20the%20TWC%20Privacy%20Advisor%20at%20privacy.advisor@twc.texas.gov.

ATTACHMENT A TO DUA- SUBCONTRACTOR AGREEMENT FORM TWC

CONTRACT NUMBER:

The DUA between TWC and Contractor establishes the permitted and required uses and disclosures of Confidential Information by Contractor.

Contractor has subcontracted with (Subcontractor) for performance of duties on behalf of CONTRACTOR which are subject to the DUA. Subcontractor acknowledges, understands and agrees to be bound by the same terms and conditions applicable to Contractor under the DUA, incorporated by reference in this Agreement, with respect to TWC Confidential Information. Contractor and Subcontractor agree that TWC is a third-party beneficiary to applicable provisions of the subcontract.

TWC has the right, but not the obligation, to review or approve the terms and conditions of the subcontract by virtue of this Subcontractor Agreement Form.

Contractor and Subcontractor assure TWC that any Breach as defined by the DUA that Subcontractor Discovers shall be reported to TWC by Contractor in the time, manner and content required by the DUA.

If Contractor knows or should have known in the exercise of reasonable diligence of a pattern of activity or practice by Subcontractor that constitutes a material breach or violation of the DUA or the Subcontractor's obligations, Contractor shall:

1. Take reasonable steps to cure the violation or end the violation, as applicable;

2. If the steps are unsuccessful, terminate the contract or arrangement with Subcontractor, if feasible;

3. Notify TWC immediately upon Discovery of the pattern of activity or practice of Subcontractor that constitutes a material breach or violation of the DUA and keep TWC reasonably and regularly informed about steps Contractor is taking to cure or end the violation or terminate Subcontractor's contract or arrangement.

This Subcontractor Agreement Form is executed by the parties in their capacities indicated below.

[SIGNATURE PAGE FOLLOWS]

CONTRACTOR SUBCONTRACTOR

BY: BY:

NAME: NAME:

TITLE: TITLE:

Date: Date: