PART B: STANDARD TERMS AND CONDITIONS

Solicitation No. 301-26-06320- Part B

1. INTRODUCTION

Introduction

Part B sets forth the standard definitions and terms and conditions that will become part of the final Contract awarded to the Contractor, in addition to those terms and conditions included in

Part A of the Solicitation. The OOG reserves the right to negotiate or incorporate different or additional terms and conditions in the Contract if it is determined to be in the best interest of the

State of Texas.

Contract Elements

Order of Precedence

The Contract will follow a general format specified by the OOG. The contents of this Solicitation, as modified by any published addenda and OOG responses to questions and answers issued in conjunction with the Solicitation as published on the ESBD, to the extent such addenda and responses were issued (the “Solicitation”); and the Contractor’s Response, excluding any terms and conditions the Contractor may include in its Response and including any clarifications or

BAFO, to the extent any clarifications or BAFOs are submitted, may be incorporated into the

Contract (except as to any confidential financial information of the Contractor contained in Tab 3, Financial Responsibility). In the event conflicts or inconsistencies between the final executed

Contract arise, this Solicitation, the Contractor’s Response, and any exhibits or attachments to the foregoing, such conflicts or inconsistencies shall be resolved by reference to the documents in the following order of priority, to the extent the documents are incorporated into the Contract:

(1) the Contract, including any exhibits thereto;

(2) the Solicitation;

(3) the Contractor’s Response, excluding any terms and conditions the Contractor may include in its Response, and any clarifications or BAFO, if any.

Parts Incorporated

All attachments or exhibits referenced in this Solicitation are incorporated into and expressly made a part of this Solicitation.

2. GLOSSARY

Account Manager

The individual who oversees and provides direction for and manages all activities under the

Contract including, but not limited to, all activities and Deliverables provided under the Contract, including responsibility for the management, accounting for the entire Contract, billing, and reporting.

Acceptable Quality Level

The level of quality of requested Deliverables, based entirely on the judgment of the OOG staff, below which the Contract will not be paid, and/or Contractor may be required to re-perform or provide reimbursement to the OOG.

Ad Hoc Deliverables

If applicable, deliverables requested and approved by the OOG that are in addition to required

Deliverables conducted on an as-needed basis and provided in as-needed quantities. Such

Deliverables are in addition to the Statement of Work specified in Part A of the Solicitation, but which fall within the scope of the Contract.

Addendum

A modification of the specifications contained in the Solicitation and distributed to prospective

Respondents prior to the opening of responses.

Business Day

The State of Texas’s business days are Monday through Friday, 8:00 a.m. through 5:00 p.m., except for scheduled State of Texas holidays (see, http://www.hr.sao.texas.gov/Holidays).

Contract

A contract awarded as a result of the Solicitation, and all exhibits thereto, as described in Section

1.2 of this Part.

Contractor

A Respondent that is awarded a Contract as a result of the Solicitation.

Contractor Project Manager

The individual who oversees and provides direction for and manages all activities under the

Contract including, but not limited to, all activities and Deliverables provided under the Contract, including responsibility for the management, accounting for the entire Contract, billing, and reporting.

CPA

The Texas Comptroller of Public Accounts.

Deliverable

A good, service, commodity, or other item sought by the OOG in the Solicitation and proposed to be provided by the Respondent in response to the Solicitation.

http://www.hr.sao.texas.gov/Holidays

ESBD

The Electronic State Business Daily, which is available online at https://www.txsmartbuy.gov/esbd.

Fiscal Year

The fiscal year is the period beginning September 1 and ending 12 months later on August 31.

Generally Accepted Accounting Principles (“GAAP”)

A set of rules that encompass the details, complexities, and legalities of business and corporate accounting.

Historically Underutilized Business (“HUB”)

A business certified by the CPA that is a historically underutilized business as defined by Title 10, Subtitle D, Chapter 2161, Texas Government Code. For further explanation, see the CPA administrative rules at Title 34, Chapter 20, Subchapter D, Division 1, Texas Administrative Code, and https://comptroller.texas.gov/purchasing/vendor/hub/.

International Accounting Standards (“IAS”)

A set of rules that encompass the details, complexities, and legalities of international business and corporate accounting.

Intellectual Property Rights

The worldwide legal rights or interests evidenced by or embodied in: (i) any idea, design, concept, personality right, method, process, technique, apparatus, invention, discovery, or improvement, including any patents, trade secrets, and know-how; (ii) any work of authorship, including any copyrights, moral rights or neighboring rights; (iii) any trademark, service mark, trade dress, trade name, or other indicia of source or origin; (iv) domain name registrations; and (v) any other proprietary or similar rights. The Intellectual Property Rights of a Party include all worldwide legal rights or interests that the Party may have acquired by assignment or license with the right to grant sublicenses.

Media

This includes, but is not limited to, consumer and trade broadcast (i.e., radio, television), print

(newspapers, magazines), and digital or interactive media viewed via a computer/mobile device on the internet (e.g., world wide web, social media).

OOG

The Office of the Governor of Texas.

OOG Project Manager

The OOG staff member responsible for day-to-day coordination with the Contractor.

Party/Parties

The OOG and/or the Contractor, separately or collectively.

Performance Period

Each annual period of the Contract Term, running contemporaneously with a Fiscal Year, during which the Contractor will perform the required services under the Contract. Each Performance

Period will be separately budgeted by the OOG, subject to available appropriations.

Respondent

An entity submitting a response to the Solicitation.

Response

The final document submitted by a Respondent in response to the Solicitation that details the

Deliverables, plans, goods, or services the Respondent can provide or that specifies the

Respondent’s qualifications and abilities.

Solicitation

The document and any Addenda or attachments issued by the OOG for the purpose of seeking

Deliverables from a vendor through a competitive procurement method, including Invitations for

Bids (IFB), Requests for Proposals (RFP), Requests for Offers (RFO), or Request for

Qualifications (RFQ). The type of Solicitation at issue in this document is specified on the first page of Part A of the Solicitation.

Works

All documents, reports, statistical analyses, work papers, work products, materials, approaches, designs, specifications, systems, documentation, methodologies, concepts, research, materials, intellectual property, or other property developed, produced, or generated in connection with the

Contract, including, but not limited to, data, data compilations, and other collateral prepared, developed, supplied, commissioned, gathered, or generated by the Contractor in the performance of its obligations under the Contract, or provided by the OOG or any other person or entity to the

Contractor in order that it may provide the Deliverables required under the Contract.

3. FINANCIAL TERMS AND CONDITIONS

Increase in the Maximum Contract Amount

The Contractor shall monitor all fees to ensure that the amount of each new invoice added together with all previous invoices during the current Performance Period will not exceed the Maximum

Contract Amount for the Performance Period. The Contractor shall provide sixty calendar days advance notice to the OOG in the event that the cost of providing the Deliverables is anticipated to exceed the Maximum Contract Amount for the Performance Period. Any increases in the

Contract amount for a given Performance Period as a result of any renewals or extensions shall require a written amendment to the Contract executed by the Parties that specifies the new

Maximum Contract Amount for the Performance Period. The total of any and all such increases should not exceed 25% of the original amount determined for that Performance Period.

Costs

The Contractor shall not be paid for any mark-up, overhead costs, or other expenses.

Invoicing and Payment

Timely Invoices. All invoices for Deliverables provided shall be submitted to the

OOG on a timely basis. Any invoice that does not comply with the minimum requirements stated in this Section may not be considered valid and may be subject to rejection and/or return to the Contractor. Upon the request of the OOG, the

Contractor must submit to the OOG any additional documentation or explanation the OOG may require to support or document the requested payment under the

Contract.

Texas Identification Number Required. As a prerequisite to the OOG’s ability to process any payments to the Contractor under the Contract, the Contractor shall provide the OOG with required tax and payee identification information in the form of a completed “Application for Texas Identification Number” (information is available on the CPA’s website at https://fmx.cpa.texas.gov/fmx/payment/resources/svpr_all.php). If the Contractor has previously completed the required documentation to obtain a Texas

Identification Number (“TIN”) prior to the effective date of the Contract, the

Contractor may satisfy this requirement by providing the OOG with the

Contractor’s current TIN, name, and address to permit the OOG to verify registration in the TIN System with the CPA.

Required Invoice Contents. Each invoice presented must include: (i) the OOG’s

Contract number; (ii) the Contractor’s TIN; (iii) the name and division of the OOG contact; (iv) a report for the Deliverables provided under the Contract; (v) description of each Deliverable and the dollar amount attributable to each; and (vi) the name of the entity or individual to which each Deliverable is attributable. The

OOG’s receipt and acceptance of an acceptable invoice is required under this

Section.

Itemized Invoicing Required. Unless otherwise specified, the Contractor shall submit itemized monthly invoices once every thirty calendar days for all

Deliverables completed, delivered to, and accepted by the OOG, per the Contract requirements. Invoice amounts shall be in United States dollars. All invoices shall be made payable to the Contractor at the address for the TIN on file with the CPA or with the wire transfer instructions indicated in the Contract.

Invoicing Contact Information. Invoices and payment inquiries shall be submitted to:

ap@gov.texas.gov or by mail to:

Office of the Governor

Accounts Payable

P.O. Box 12878

Austin, Texas 78711-2878

Review and Approval of Invoices. Each invoice is subject to review and approval by the OOG before payment. The OOG will review invoices and notify the

Contractor of any errors in its invoice in accordance with the timeframe specified in Chapter 2251, Texas Government Code (the Texas Prompt Payment Act). Upon acceptance of the Contractor’s performance and receipt of an acceptable invoice required to be submitted under this Section, the OOG will process payment to the

Contractor in accordance with the Texas Prompt Payment Act. It is the policy of the OOG to make payment on a properly prepared and submitted invoice within thirty calendar days of the latter of any final acceptance of performance or the receipt of a properly submitted invoice.

Reimbursables.

Unless specifically authorized in Part A of the Solicitation, the OOG will not reimburse any expenses.

If Reimbursables are authorized, they shall be limited as specified in Part A of the

Solicitation. All Reimbursables incurred by the Contractor on the OOG’s behalf, including those made by the Contractor’s subcontractors, shall be billed at actual costs. The OOG will make payment only to the Contractor for such Reimbursables that OOG has pre-approved in writing. All purchases of Reimbursables are subject to the OOG’s procedures and guidelines for travel, procurement of goods and services, and Fiscal Year spending requirements. Upon the OOG’s written approval of the cost estimate, the Contractor shall purchase the Deliverables and complete the project as stated and agreed upon in accordance with the cost estimate. The OOG has the right to refuse to approve any cost estimate, obtain independent cost estimates, or require the Contractor to obtain different or additional cost estimates or price quotes on the project. The OOG may require the

Contractor to use the most reasonable quote as determined in the sole discretion of the OOG, or to modify the Contractor’s cost estimate to make it comparable with any independent quotes obtained by the OOG. The OOG will have the final approval in deciding which cost estimates will result in the best value to the State of Texas.

The Contractor’s invoices for Reimbursables shall include: (i) the approved project cost estimate with the OOG’s written approval; (ii) the Contractor’s documentation of any variation from the approved project cost estimate, including a change order signed by the OOG, if applicable; (iii) all supporting documentation for any Reimbursables for which the Contractor has incurred costs, including copies of original receipts or other documentation of actual expenditures deemed acceptable by the OOG for all purchases of Reimbursables; and (iv) proper bid documentation, when applicable.

If the Contractor’s actual costs for Reimbursables exceed the OOG-approved cost estimate, the OOG may either (i) require the Contractor to submit additional information for the OOG’s review and approval to support a finding that the increased cost of the expenditure is reasonable and necessary; or (ii) reimburse the

Reimbursables at the amount indicated in cost estimate approved by the OOG.

Only Deliverables that have been approved, completed, and received by the OOG during the invoice period should be invoiced, unless the OOG has provided prior written approval to authorize an advance payment to the Contractor for approved

Reimbursables.

Billing Subject to Maximum Contract Amount; Prorating. The Contractor shall bill subject to the Maximum Contract Amount set forth in the Contract, in accordance with its fee schedule for Deliverables. The OOG, subject to the

Maximum Contract Amount set forth in the Contract, and in consideration of full and satisfactory performance of required Deliverables, will make payment to the

Contractor for fees for Deliverables provided in accordance with the requirements of the Contract. Invoices for partial month’s Deliverables shall be prorated and paid based upon a thirty calendar day work period/month.

Presumed Warranties Upon Submission of Invoices. By submission of the invoices, the Contractor is warranting the following: (i) its invoices have been carefully reviewed to ensure that all invoiced Deliverables have been performed and provided in compliance with all terms of the Contract; (ii) the charges shown on the invoice are allowable costs that are reasonable and necessary, and where applicable, do not exceed the amounts provided for in the Contract; (iii) the amount of each new invoice added together with all previous invoices do not exceed the

Maximum Contract Amount as referenced in the Contract; and (iv) all supporting documentation is attached.

Payment of Invoices. Upon satisfactory provision by the Contractor of the

Deliverables identified in the Contract, acceptance by the OOG, and the OOG’s release of any payment holds, the Contractor will be paid the unpaid balance of any money due for such Deliverables in accordance with the payment terms outlined in the Contract. The Contractor understands and agrees that determination of satisfactory completion is based entirely on the judgment of the staff of the

OOG, and that the OOG and its staff are not liable for any damages to the

Contractor or any subcontractors for claims arising from the OOG’s enforcement of the requirements of this Section.

Termination for Non-Appropriation (Funding Out)

The Contractor agrees that nothing in the Contract will be interpreted to create an obligation or liability of the OOG in excess of the funds delineated in the Contract. The Contractor agrees that funding for the Contract is subject to the actual receipt by the OOG of funds appropriated to the

OOG or otherwise available from federal funding sources. The Contractor agrees that any funds received from the OOG are limited by the term of each state biennium and by specific appropriation authority to and the spending authority of the OOG for the purpose of the Contract, as well as any applicable conditions of federal funding. The Contractor agrees that notwithstanding any other provision of the Contract, if the OOG is not appropriated the funds or if the OOG does not receive the appropriated funds or applicable federal funding, or if the funds appropriated to the

OOG or applicable federal funding are required to be reallocated to fund other state programs or purposes, then the OOG may reduce the Maximum Contract Amount or terminate the Contract without cost or penalty.

Purchase of Services/Utilization

To the extent this Solicitation involves the purchase of Deliverables without a particular level, quantity, or utilization, the OOG does not guarantee the purchase of particular level, quantity, or utilization of any Deliverable during any Contract Term. All quantities of Deliverables will be purchased upon the OOG’s request, in “as-needed” quantities, on an “as-needed” basis, as determined by the OOG. No authorization for the purchase of any Deliverable is provided until the Contractor receives such written notice from the OOG in accordance with the terms of the

Contract.

4. OTHER TERMS AND CONDITIONS

Amendments

Except as stated herein, the Contract may be amended only upon written agreement signed by both

Parties to the Contract. The Parties stipulate and agree that any other act, oral statements, or representation by either Party, their agents or employees that purports to amend the Contract, including increasing the liability of the OOG or modifying the Statement of Work specified in Part

A of the Solicitation, is voidable by the OOG, unless the Contract is amended in writing to increase the liability of the OOG or modify the Statement of Work specified in Part A of the Solicitation.

Notwithstanding the paragraph above, if any of the following circumstances arises, the OOG reserves the right to amend the Contract through execution of a unilateral amendment, which the

OOG will provide to the Contractor: (i) to correct an obvious clerical error in the Contract; (ii) to incorporate new or revised federal or state laws, regulations, rules, or policies that are required to be included as part of the Contract; (iii) to change the designated OOG contact person or mailing address for the Contract; or (iv) to change the designated Contractor’s contact person or mailing address for the Contract.

Delivery of Notices

Any notice required or permitted under the Contract by one Party to the other Party must be in writing and correspond with the contact information provided in the Contract. Any notice required or permitted to be given under the Contract may be given by regular first class mail or email and shall be deemed to have been given on the date of attempted or actual delivery to the recipient if addressed to the receiving Party at the address specified in Part A of this Solicitation. At all times, the Contractor will maintain and monitor at least one active email address for the receipt of

Contract-related communications from the OOG. It is the Contractor’s responsibility to monitor this email address for Contract-related information.

No Assignment

No right or obligation under the Contract may be assigned without the prior written approval of the OOG; any attempted assignment made in violation of this provision shall be voidable by the

OOG. The OOG may notify the Legislative Budget Board of a proposed assignment at least fourteen calendar days prior to rejecting or approving a proposed assignment if, among other things, the Contract involves storing, receiving, processing, transmitting, disposing of, or accessing sensitive personal information in a foreign country.

Contract Issuance

The OOG shall issue an executed Contract, or amendment as applicable, as written notice for all

Contract, Contract renewal or extensions, Contract modifications, including but not limited to modifications to scope, schedule and pricing, and authorizations for the purchase of services specified in the Statement of Work specified in Part A of this Solicitation. No authorization for the purchase of any services is provided until such Contract or, if applicable, amendment, has been fully-executed by the Contractor and the OOG. Upon notice from the OOG that a Contract or amendment, if applicable, has been properly executed, the Contractor shall identify the Account

Manager authorized to receive direction from the OOG, to manage the work being performed, and to act on behalf of the Contractor. The Contractor shall ensure that its Account Manager, or his or her authorized designee, is available at all times for consultation with the OOG.

Delivery

All deliveries of the Deliverables contemplated in the Contract shall be made in accordance with the Scope of Work specified in Part A of this Contract. No substitutions or cancellations shall be permitted without prior written approval of the OOG. The Contractor shall keep the OOG advised at all times of the delivery status of Deliverables to be provided. If the Contractor foresees problems, delays, or adverse conditions that may prevent the Contractor from meeting delivery requirements, the Contractor shall give timely written notice to the OOG that explains the reasons for the delay and proposes an alternate delivery for the OOG’s approval. The OOG has the right to accept or reject the proposed alternative delivery in its sole discretion. Default in promised delivery, without accepted reasons, authorizes the OOG to purchase services elsewhere and to charge to the defaulting Contractor the full amount of any increase in costs associated with procuring replacement Deliverables. Default in the Contractor’s delivery may result in termination of the Contract for reason of default.

Acceptance of Work Performed

All work performed by the Contractor shall be accepted in writing by an authorized official of the

OOG before payment will be approved. Acceptance shall be based upon the Contractor’s compliance with all applicable Contract requirements. The OOG will not pay for work that does not meet the Acceptable Quality Level or fails to fully comply with Contract requirements. Should the OOG determine, in its sole discretion, that the Contractor’s work is not of Acceptable Quality

Level or was not provided in a manner that complies with Contract requirements, the OOG may require the Contractor to promptly re-perform the work in conformity with the Contract requirements at no additional cost to the OOG, or the OOG may reject payment of invoices for the

Contractor’s work without penalty or further obligation to the Contractor. The OOG may further require new performance, a refund, or offset in the event that work is discovered after payment has been made to be either unauthorized or below the Acceptable Quality Level. Failure to perform work in compliance with all Contract requirements may result in termination of the Contract for reason of default.

Accounting Systems

The Contractor shall have an accounting system that accounts for costs in accordance with GAAP and/or IAS. The Contractor’s accounting system must include an accurate and organized file or records system for accounting and financial purposes for providing backup materials for billings.

Contract Monitoring

The OOG will monitor the Contractor’s performance as work is performed to ensure the work is compliant with the terms and conditions of the Contract. Monitoring activities may include, but are not limited to:

Inspection prior to acceptance to ensure Contract compliance;

Invoice review to ensure compliance with all applicable Contract terms and conditions;

Performance review and project planning meetings to be held in Austin, Texas or as may otherwise be coordinated between the OOG and the Contractor; and

On-site reviews at the Contractor’s work site, to include observation, monitoring, and interview of the Contractor’s staff to ascertain their understanding of the Office’s goals, review key Contract requirements and service documentation, review fiscal records, and observe operations with respect to the OOG’s account.

Audit, Access to Records, Records Retention

Inspections. Throughout the Contract Term, all services provided under the

Contract may be subject to inspection and testing by the OOG’s authorized representatives. The OOG reserves the right, at all reasonable times, to have access to and inspect all services provided by the Contractor and its subcontractors, including, but not limited to, all Works, facilities, equipment, supplies, and pertinent records or written material relating to the Contract requirements. Failure of the Contractor or its subcontractors to provide reasonable access to authorized representatives of the OOG who desire to perform such inspections or tests may result in termination of the Contract for reason of default. In the event inspected or tested services are deemed unacceptable by the OOG for failure to meet or exceed all Contract requirements, the cost of the sample used and the cost of testing shall be borne by the

Contractor. The OOG’s discovery of latent defects in the Deliverables purchased under the Contract may result in revocation of acceptance of any service and may result in the Contractor being required to refund or offset related Contract payments.

Contractor Cooperation. The Contractor will cooperate fully in any monitoring, inspection, assessment, review or audit conducted by the OOG or its authorized representatives related to any services provided under the Contract or billed to the OOG. The Contractor will remedy within thirty calendar days any weaknesses, deficiencies, Contract noncompliance, or audit exceptions found as a result of a review by the OOG or its authorized representatives. Such remedy may include a refund or offset of Contract payments or any other appropriate actions deemed necessary by the OOG. The Contractor’s failure to comply with this requirement shall be grounds for termination of the Contract for reason of default.

Access to Records. The OOG, through any of its authorized representatives, shall have access to books, records, documents, financial records and any other information pertinent to performance of all work under the Contract for the purposes of audit, review, inspection, copying, and audit. This right of access applies to services provided or performed by, or financial records pertaining to, all subcontracts and subcontractors. The Contractor shall provide proper facilities for such access and inspection, or otherwise promptly make such records available to the OOG or its authorized representatives through the production or copying of any documents or information required by the OOG at the Contractor’s expense.

Records Retention. The Contractor shall maintain adequate records to support its charges, procedures, and performances for all work relating to the Contract.

Records shall be maintained by the Contractor and made available to the OOG and its authorized representatives during the Contract Term and thereafter until the later of the expiration of: (i) seven years from date of final payment by the

OOG for the services provided under the Contract; or (ii) seven years from date of final completion of any audit, dispute, litigation, or the settlement of claims arising out of such performance, or costs or items to which an audit exception has been taken.

State Auditor. In addition to, and without limitation on other audit provisions of the Contract, pursuant to Section 2262.154, Texas Government Code, the

Texas State Auditor’s Office may conduct an audit or investigation of the

Contractor or any other entity or person receiving funds from the OOG directly under the Contract or indirectly through a subcontract under the Contract. The acceptance of funds by the Contractor or any other entity or person directly under the Contract or indirectly through a subcontract under the Contract is acceptance of the authority of the Texas State Auditor’s Office to conduct an audit or investigation in connection with those funds. The Contractor or other entity that is the subject of an audit or investigation by the Texas State Auditor’s Office must provide the Texas State Auditor’s Office with access to any information the Texas State Auditor’s Office considers relevant to the investigation or audit.

The Contractor further agrees to cooperate fully with the Texas State Auditor’s

Office in the conduct of the audit or investigation, including providing all records requested.

The Contractor shall ensure that this paragraph concerning the authority to audit funds received indirectly by subcontractors through the

Contractor and the requirement to cooperate is included in any subcontract it awards. The Texas State Auditor’s Office shall at any time have access to and the right to examine, audit, excerpt, and transcribe any pertinent books, documents, working papers, and records of the Contractor related to the Contract.

No Third-Party Beneficiary Rights

The Contract is not intended to and shall not be construed to give any third party any interest or rights, including, without limitation, any third-party beneficiary rights, with respect to or in connection with any agreement, subcontract, or provision contained herein or contemplated hereby.

Change of Name or Merger

The Contractor shall promptly notify the OOG of any change of name, merger, consolidation, restructuring, sale, or other such change in the identification or designation of the proper legal entity in which it holds the Contract. In such an event, an amendment to the Contract shall be required, and shall specifically state that no other terms, conditions, or obligations of the Contract are thereby changed. The Contractor shall not assign the Contract pursuant to this Section.

Responsibility for Correction of Errors and Oversights

The Contractor shall be responsible for ensuring that there are no errors or oversights in the final

Deliverables.

If any Deliverables are not provided in accordance with the applicable Statement of Work approved by the OOG, the Contractor will remedy, in a timely manner, any such errors, oversights, deficiencies, Contract noncompliance, or audit exceptions. A “timely manner” is not longer than thirty calendar days, although this time period may be reduced in the OOG’s sole discretion depending on the circumstances. Such remedies may include a refund or offset of Contract payments or any other appropriate corrective actions deemed necessary by the OOG. The

Contractor’s failure to comply and timely remedy such errors and oversights may be grounds for termination of the Contract by reason of default. The Contractor shall be solely and exclusively responsible for bearing all costs associated with correcting the Contractor’s errors and oversights

Default, Remedies, and Opportunity to Cure

Notice of Possible Default

The OOG, in its sole discretion and based on information from Contract monitoring, audit, or other verifiable sources, will determine whether the Contractor has acted or failed to act in such a manner that gives rise to an act of possible default under the Contract. The OOG shall give written notice to the Contractor setting out the circumstances that support the OOG’s determination of possible default and specify the time period by which the Contractor must cure the possible default.

Remedies in the Event of Possible Default

Upon the OOG’s determination of possible default, the OOG, in its sole discretion, may terminate the Contract for cause or take other actions the OOG determines are necessary to remedy the possible default, including, but not limited to:

Requiring the Contractor cure the possible default within a reasonable time period specified by the OOG and to provide the OOG with sufficient information that supports a finding of cure by the OOG;

Requiring the Contractor to take specific corrective actions to achieve or remain in compliance with any contractual term;

Withholding or recouping payments made to the Contractor or imposing other sanctions based on specific violations of Contract requirements;

Suspending or limiting the receipt of any Deliverables and placing conditions on any such suspensions or limitations;

Requiring the removal of any employee of the Contractor or any subcontractor from providing Deliverables under the Contract; and

Imposing special conditions on the Contractor to ensure strict compliance with Contract terms, including, but not limited to, the imposition of additional procedures to ensure the proper delivery of Deliverables or to support payments to the

Contractor, or the suspension, abeyance, or removal of any contractual rights of the

Contractor.

Cure

If the OOG is satisfied the Contractor has cured the possible default within the time period specified in the written notice provided by the OOG in accordance with Section 4.13.1, the OOG will provide written notice to the Contractor. The OOG will exercise good faith and reasonableness in determining, in the sole discretion of the OOG, whether the Contractor has cured the possible default.

Repeated Acts of Possible Default

If the Contractor commits more than two independent acts of possible default, even if each possible default was cured, the OOG may declare the Contractor to be in default of the Contract.

Default

If the OOG is not satisfied that the Contractor has cured a possible default within the time period specified by the OOG, or that the Contractor has committed repeated acts of possible default, as specified in Section 4.13.4, the Contractor shall be in default hereunder, and the OOG shall give written notice to the Contractor declaring such default.

Notwithstanding any other provision of the Contract, the OOG is not required to give the

Contractor any notice of default or an opportunity to cure in order to exercise the OOG’s right to terminate for cause.

Termination

Convenience of the State

The OOG may, in its sole discretion and at its sole option, terminate the Contract, in whole or in part, without recourse or penalty, by notifying the Contractor in writing of such termination. Such notification of termination shall state the effective date of such termination and if no effective date is specified, the termination shall be effective upon the date of the notification.

Agreed Termination

The OOG and Contractor may mutually agree to terminate the Contract.

Cause or Default

In the event Contractor fails to perform or comply with an obligation or a term, condition or provision of the Contract, or if the Contractor is in default and has failed to cure such default after having received notice and an opportunity to cure, the OOG may terminate all or any part of the

Contract for cause. If the Contractor’s breach is based on repeated acts of default or is of a nature such that it cannot be cured within thirty calendar days, then the OOG may terminate all or any part of the Contract immediately without opportunity to cure. In either case, the OOG will notify the Contractor of the default. Such notification of termination shall state the effective date of such termination, and if no effective date is specified, the termination shall be effective upon the date the notification was sent.

Termination Relating to Statewide Procurement Division Award

The Contract may be terminated with thirty days’ written notice by the OOG upon award by the

Statewide Procurement Division of the Texas Comptroller of Public Accounts of a statewide contract for the same or similar good or service.

Rights Upon Termination or Expiration

Cessation of Work. Upon receipt of written notice to terminate or upon final expiration of the Contract, the Contractor shall immediately discontinue providing the specified Deliverables as of the effective date of termination or expiration, unless the OOG directs otherwise.

Liability for Payments. The OOG shall be liable for payment only to the portion of work authorized by the OOG in writing, completed prior to the effective date of termination or expiration, and accepted by the OOG. The OOG shall not be liable for any damages, claims, losses, or any other amounts arising from or related to any such termination or expiration, or for any work performed that: (i) is not accepted by the OOG; (ii) does not meet Contract requirements; (iii) was performed after the effective date of termination; or (iv) after the OOG rescinded its approval or acceptance.

Return and Ownership of Works and Materials. Subject to any requirements of the Contractor to provide end of Contract transition services, the

Contractor shall promptly deliver or otherwise make available to the OOG at the

Contractor’s expense, all Works and such other information and materials as may have been accumulated by the Contractor in providing Deliverables under the Contract, whether completed or in process. Upon termination or expiration, the OOG may take over the Deliverables prescribed by the Contract and pursue the same to completion by contracting with another party or otherwise. All Works, including Deliverables, produced by the Contractor and paid for by the OOG shall become and/or remain the property of the OOG as further described in the Contract.

Remedies. Notwithstanding any exercise by the OOG of its rights of early termination pursuant to this Section, the Contractor shall not be relieved of any liability to the OOG for damages due to the OOG by virtue of any breach of the Contract by the

Contractor or for amounts otherwise due the OOG by the Contractor. Termination is not an exclusive remedy, but will be in addition to any other rights and remedies provided in equity, by law or under the Contract to enforce the terms of the Contract, or to recover damages for the breach of any agreement being derived from the Contract.

The Contractor shall remain liable for all covenants and indemnities under the Contract and for all costs and expenses, including court costs, incurred by the OOG with respect to the enforcement of any of the remedies listed in the Contract.

Dispute Resolution

Informal Meetings. The Parties’ representatives will meet as needed to implement the terms of the Contract and will make a good faith effort to informally resolve any disputes.

Dispute Resolution. If Chapter 2260 of the Texas Government Code is applicable, disputes arising under the contract shall be resolved in accordance with the dispute resolution process provided therein.

Continued Performance. The Contractor shall not be excused from performance during any pending dispute, unless approved in writing by the OOG.

Subcontractors

Any routine use of subcontractors for the provision of Deliverables that are to be included in the Contractor’s fee schedule shall be disclosed and clearly identified in each Response.

The Contractor, in subcontracting for the provision of any Deliverables, expressly understands and agrees that the OOG shall not be liable in any manner or at any time to the Contractor’s subcontractors. In no event shall the OOG’s approval of the Contractor’s use of subcontractors, nor the conduct or statement of any person, nor any other provision of the Contract, be construed as relieving the Contractor of the responsibility for ensuring that all Deliverables provided under the Contract, and any subcontracts thereto, are rendered in compliance with all of the terms of the Contract.

In the event that the Contractor determines it is necessary or expedient to subcontract for any of the Deliverables provided for in the Contract at any time during a Performance Period, the following conditions will apply:

The Contractor shall (i) submit cost estimates; (ii) submit a copy of the proposed subcontract to the OOG if requested; and (iii) obtain the written approval from the OOG before subcontracting for the subject Deliverables.

The Contractor may identify the OOG as the intended beneficiary of a subcontract, but Contractor is not authorized to execute any contract directly obligating the OOG to the payment for Deliverables or otherwise identifying the OOG as a party to any subcontract.

In no event shall this Section or any other provision of the Contract be construed as relieving the Contractor of the responsibility for ensuring that all

Deliverables provided under the Contract, and any subcontracts thereto, shall be rendered in compliance with all of the terms of the Contract.

The Contractor will be the sole point of contact for the OOG with respect to any performances to be provided by the subcontractor, and any payments due to the subcontractor. The Contractor will identify a designated point of contact who shall be responsible for the coordination of all communications with the subcontractor.

The Contractor shall be solely and exclusively responsible for any payments and other claims due to subcontractors for work performed under the Contract. Any and all reimbursement to the Contractor for the actual, reasonable and necessary expenses relating to the use of subcontractors is subject to the Contractor’s compliance with the terms and conditions of the Contract, including, but not limited to, any terms and conditions governing the payment of Reimbursables, if any. No mark-up will be allowed for any subcontract expenses.

In accordance with the Texas Prompt Payment Act, the Contractor shall, upon receipt of payment from the OOG, pay a subcontractor the appropriate share of the payment not later than ten calendar days after the date the Contractor receives the payment. Upon request of the OOG, Contractor shall promptly provide documentation in a form acceptable to the OOG to support confirmation of payments made by

Contractor to subcontractors. Any failure to promptly pay subcontractors as required by this Section may result in termination of the Contract for cause.

The Contractor shall include a term in any subcontracts that places subcontractors on notice that the subcontract is subject to certain terms and conditions of the Contract and holds that the event of any conflict between the terms of the subcontract and the Contract, the Contract shall prevail.

Applicable Law and Venue

The Contract is made and entered into in the State of Texas. The Contract and all disputes arising out of or relating thereto shall be governed by the laws of the State of Texas, without regard to any otherwise applicable conflict of law rules or requirements.

Venue for any Contractor-initiated action, suit, or litigation arising out of or in any way relating to the Contract shall be exclusively in the Travis County District Court or the United States District

Court, Western District of Texas - Austin Division. Venue for any action, suit, or litigation initiated by the OOG arising out of or in any way relating to the Contract may be in a Texas state district court or a United States District Court in Texas selected by the OOG in its sole discretion.

The Contractor hereby irrevocably and unconditionally consents to the jurisdiction of the courts referenced above for the purpose of prosecuting and defending any such litigation. The Contractor hereby waives and agrees not to assert as a defense, or otherwise, in any suit, action or proceeding, any claim that the Contractor is not subject to the jurisdiction of the above-named courts; the suit, action or proceeding is brought in an inconvenient forum; and/or the venue is otherwise improper.

No Waiver of Immunity

The OOG is immune from suit and from liability. No part of the Contract, nor the conduct or statement of any person, will be construed as a waiver of sovereign immunity or official immunity, or of any of the privileges, rights, defenses, remedies, or immunities available to the OOG, and/or the State of Texas, or their officers, employees, or agents as provided by law.

Independent Contractor

The Contractor shall provide the Deliverables as required under the Contract as an independent contractor. Employees and contractors of the Contractor are not employees of the OOG or the State of Texas by virtue of the Contract or otherwise within the meaning of any international, federal, state, or local law, ordinance, or regulation. The Contractor agrees it is entirely responsible for the payment of the Contractor’s and the Contractor's employees’ taxes, unemployment, and workers’ compensation insurance, and the Contractor agrees to comply with all international, state, local, and federal laws, ordinances, or regulations applicable to any such persons.

Delinquent Child Support Obligations

The Contractor certifies that the individual or business entity named in the Contract is not ineligible to receive any payment under Section 231.006, Texas Family Code, and acknowledges that the

Contract may be terminated and payment may be withheld if this certification is inaccurate. If applicable, the Contractor has provided the name and social security number of each person (sole proprietors, firm owners, partners, or shareholders) with at least 25% ownership in the Contractor

(business entity).

Financial Participation Prohibited

Under Section 2155.004, Texas Government Code, the Contractor certifies that the individual or business entity named in the Contract is not ineligible to receive the specified Contract and acknowledges that the Contract may be terminated and payment withheld if this certification is inaccurate.

Buy Texas

To the extent reasonably applicable, the Contractor represents and warrants that it will buy Texas products and materials for use in providing the Deliverables authorized herein when such products and materials are available at a comparable price and within a comparable period of time when compared to non-Texas products and materials as required by Section 2155.444, Texas

Government Code.

Dealings With Public Servants Affirmation

The Contractor affirms that it has not given, offered to give, nor intends to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with the Solicitation.

No Claims

The Contractor certifies that the Contractor does not have any potential or existing claims against or unresolved audit exceptions with the State of Texas or any agency of the State of Texas.

Certification of Good Standing; Delinquent Taxes

The Contractor certifies that it is in good standing under the laws of the jurisdiction in which it is formed or organized, and if requested, will provide the OOG with confirming documentation. The

Contractor certifies that it owes no delinquent taxes to any taxing unit of this state at the start date of the Contract. The Contractor agrees to remain in good standing with the Texas Secretary of

State, the CPA, the United States government, and other governmental jurisdictions applicable to the provision of the Deliverables required under the Contract, related to the Contractor’s right to conduct its business during the Contract Term.

Debt to State

The Contractor acknowledges and agrees that, to the extent the Contractor owes or incurs any debt, child support, delinquent taxes, or other obligation to the State of Texas, any payments the

Contractor is owed under the Contract during the term of the Contract may be applied by the CPA toward any debt or delinquent taxes the Contractor owes the State of Texas until the debt or delinquent taxes are paid in full.

Conflicts of Interest; Disclosure of Conflicts; Disclosure of Interested Parties

The Contractor represents and warrants that it has no actual or potential conflicts of interest in providing the requested Deliverables to the OOG under the Contract, and that the Contractor’s provision of the requested Deliverables would not reasonably create an appearance of impropriety.

The Contractor has a continual and ongoing obligation to immediately notify the OOG in writing, upon discovery of any actual or potential conflict.

In addition, Section 2252.908, Texas Government Code, and the administrative rules of the Texas

Ethics Commission (TEC) at Title 1, Chapter 46, Texas Administrative Code, require certain vendors to file a Disclosure of Interested Parties Form 1295 (Form 1295) with the TEC and the

OOG. The OOG may require the Contractor to complete and file the Form 1295 at the time of

Contract execution and/or prior to the execution of an amendment of the Contract.

Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary

Exclusion

The OOG will adhere to the directions provided in U.S. Presidential Executive Order 13224, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to

Commit, or Support Terrorism,” published by the United States Department of the Treasury, Office of Foreign Assets Control.

The Contractor certifies that it and its principals are not suspended or debarred from doing business with the state or federal government as listed on the State of Texas Debarred Vendor List maintained by the CPA and the System for Award Management (SAM) maintained by the General

Services Administration. Entities ineligible for federal procurement are listed at https://www.sam.gov.

The Contractor further certifies…