ESBD_516500_1778868942396_Terms and Conditions.docx

ATTACHMENT I

TERMS AND CONDITIONS

1. Severability; Survival.

A. If any law of the United States or of the State of Texas contravenes or invalidates any provision of this CONTRACT, this CONTRACT shall be construed to void that specific provision without affecting the remaining provisions of this CONTRACT or the rights and obligations of the parties.

B. Failure to enforce any provision of the CONTRACT does not constitute a waiver of that provision, or any other provision, of the CONTRACT.

C. If any part of this CONTRACT is held unenforceable, the rest of the CONTRACT will remain in full force and effect.

2. Governing Law and Venue.

This CONTRACT shall be executed in and governed, construed, and interpreted under the laws of the State of Texas without regard to the conflicts of law provisions. Proper venue of any court action brought directly or indirectly by reason of this CONTRACT shall be in a court of competent jurisdiction in Travis County, Texas.

3. Change in Law.

Any alterations, additions, or deletions to the terms of this CONTRACT which are required by changes in federal or state law or regulations are automatically incorporated into this CONTRACT without written amendment hereto and shall become effective on the date designated by such law or by regulation. The Parties will comply with all amendments, regulations, and guidance relating to those laws, to the extent applicable.

4. Amendment.

Any changes, deletions, extensions, or amendments to this CONTRACT shall be in writing and signed by all Parties.

5. Liability.

A. No Waiver.

Nothing in this CONTRACT shall be construed as a waiver of sovereign immunity. This CONTRACT shall not constitute or be construed as a waiver of any of the privileges, rights, defenses, remedies, or immunities available to TEXAS VETERANS COMMISSION, or the State of Texas. The failure to enforce, or any delay in the enforcement, of any privileges, rights, defenses, remedies, or immunities available to TEXAS VETERANS COMMISSION or the State of Texas under this CONTRACT or under applicable law shall not constitute a waiver of such privileges, rights, defenses, remedies, or immunities or be considered as a basis for estoppel. TEXAS VETERANS COMMISSION does not waive any privileges, rights, defenses, or immunities available to CONTRACTOR by entering into this CONTRACT or by its conduct prior to or subsequent to entering into this CONTRACT.

B. Limitation on TEXAS VETERANS COMMISSION's Liability.

TEXAS VETERANS COMMISSION will not be liable for any incidental, indirect, special, or consequential damage under CONTRACT, tort (including negligence), or other legal theory. TEXAS VETERANS COMMISSION's liability to the other Contracting party(ies) will not exceed the total charges to be paid by TEXAS VETERANS COMMISSION to the other party(ies) under the CONTRACT.

C. Each party accepts liability and retains responsibility for the performance of any of its personnel and subcontractors providing services under the terms of this CONTRACT.

6. Independent CONTRACTOR.

The CONTRACTOR and their employees, representatives, agents, and any subcontractors shall serve as an independent CONTRACTOR in providing the services under this CONTRACT. CONTRACTOR and their employees, representatives, agents, and any subcontractors shall not be employees of the TEXAS VETERANS COMMISSION. Should the CONTRACTOR subcontract any of the services required in this CONTRACT, that party expressly understands and acknowledges that in entering into such subcontract(s), the TEXAS VETERANS COMMISSION is in no manner liable to such subcontractor(s). In no event shall this provision relieve the CONTRACTOR of its responsibility for providing the services required hereunder or for ensuring that the services rendered under all their subcontracts are rendered in compliance with this CONTRACT.

7. Termination Provisions.

A. Termination for Cause. TEXAS VETERANS COMMISSION may terminate this CONTRACT for cause or take other actions including requiring the other party to take specific corrective actions in order to remain in compliance with any contractual term, requesting repayment of reimbursement made to the other party based on findings of violations of CONTRACT requirements, and withholding of payment until the other party is in compliance with the terms of the CONTRACT.

B. Change in Federal or State Requirements. If Federal or state laws, regulations or requirements are amended or judicially interpreted so that either Party cannot reasonably fulfill this CONTRACT and if the Parties cannot agree to an amendment that would enable substantial continuation of the CONTRACT, the Parties shall be discharged from any further obligations under the CONTRACT.

C. Survival of Terms. Termination of this CONTRACT for any reason shall not release the Parties from any liability or obligation set forth in this CONTRACT that is expressly stated to survive any such termination or by its nature would be intended to be applicable following any such termination.

8. Dispute Resolution for Claims of Breach of CONTRACT.

The dispute resolution process provided for in Chapter 2260 of the Texas Government Code shall be used, as further described herein, by the Parties to attempt to resolve any claim for breach of CONTRACT made by a Party:

A. A claim for breach of CONTRACT that the Parties cannot resolve in the ordinary course of business shall be submitted to the negotiation process provided in Chapter 2260, Subchapter B, of the Texas Government Code. To initiate the process, the Party claiming breach shall submit written notice, as required by Subchapter B. The notice shall specifically state that the provisions of Chapter 2260, Subchapter B, are being invoked. A copy of the notice shall also be given to all other representatives of the Parties otherwise entitled to notice. Compliance with Subchapter B is a condition precedent to the filing of a contested case proceeding under Chapter 2260, Subchapter C, of the Texas Government Code.

B. The contested case process provided in Chapter 2260, Subchapter C, of the Texas Government Code is the sole and exclusive process for seeking a remedy for any and all alleged breaches of CONTRACT by a party if the Parties are unable to resolve their disputes under the negotiation process.

C. Compliance with the contested case process is a condition precedent to seeking consent to sue from the Legislature under Chapter 107 of the Civil Practices and Remedies Code. Neither the execution of this CONTRACT nor any other conduct of any representative of either party relating to the CONTRACT shall be considered a waiver of sovereign immunity to suit.

9. Force Majeure.

The TEXAS VETERANS COMMISSION may grant relief from performance of this CONTRACT, or extend a performance period, if CONTRACTOR is prevented from compliance and performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault of CONTRACTOR. If the CONTRACTOR requests relief, the burden of proof for the need for such relief shall rest upon the CONTRACTOR, who must file a written request for such release or extension. If TEXAS VETERANS COMMISSION grants such relief due to circumstances known by TEXAS VETERANS COMMISSION, TEXAS VETERANS COMMISSION must document such reasons in the CONTRACT file.

10. Texas Public Information Act.

A. Information, documentation, and other material in connection with this CONTRACT may be subject to public disclosure pursuant to Texas Government Code, Chapter 552 (the Texas Public Information Act).

B. All information, documentation, and other material in connection with the CONTRACT shall be retained by the Parties for the period specified in the Records Retention Schedule created under Texas Government Code, Chapter 441. The requirements of this provision shall be included in all subcontracts.

C. The CONTRACTOR must not dispose of records pertaining to TEXAS VETERANS COMMISSION before providing the TEXAS VETERANS COMMISSION'S contract manager with a written notice of their intent to dispose of records and receive written approval from the TEXAS VETERANS COMMISSION'S CONTRACT manager.

D. The CONTRACTOR is required to make any public information created or exchanged with TEXAS VETERANS COMMISSION pursuant to this CONTRACT, and not otherwise excepted from disclosure under the Texas Public Information Act, available in a format that is accessible by the public at no additional charge to TEXAS VETERANS COMMISSION.

11. Notices.

All notices or other instruments given under this CONTRACT shall be in writing and shall be considered given on: (i) the date of delivery if delivered by email, or hand delivered, (ii) the next day if delivered by overnight courier; or (iii) three business days after being mailed using interagency mail or the United States Postal Service. All notices under this CONTRACT shall be sent to a party at the respective address indicated in the final executed contract.

12. Non-Appropriation of Funds.

This CONTRACT is subject to the availability of state and/or federal funds appropriated for the purposes of this CONTRACT. If funds are not appropriated or made unavailable or if available funding is reduced, TEXAS VETERANS COMMISSION will provide the CONTRACTOR with written notice of termination or any necessary payment suspension, or funding reduction.

13. Payment.

A. In compliance with General Appropriations Act (GAA), Article IX, Section 8.02, 89th Legislature, Regular Session, the Agency paying the funds must submit payment 30 days after the date by which the services or resources are provided and a quarterly invoice is received. If the TEXAS VETERANS COMMISSION does not accept the services or resources or finds an error in the quarterly invoice, it shall notify the CONTRACTOR of the fact in writing as soon as possible within the 30-day period and make payment within 10 days after the date the agencies agree the problems are corrected or the errors resolved using THE Centralized Accounting Payroll and Personnel (CAPPS) and Uniform Statewide Accounting System (USAS) or by direct deposit via Automated Clearing House (ACH) according to the appropriate funding source and destination (e.g. local bank or Texas Treasury). CONTRACTOR's quarterly invoice must be supported by other required documentation and is subject to TEXAS VETERANS COMMISSION's review and approval. TEXAS VETERANS COMMISSION shall not be liable for any payment for the contracted resources and approval or services until the TEXAS VETERANS COMMISSION both receive and accept the Contracted resources or services. Any invoices or other documentation submitted, including required reports that are incorrect or incomplete, shall be returned to the CONTRACTOR for correction before resubmission to TEXAS VETERANS COMMISSION for payment.

B. TEXAS VETERANS COMMISSION is not liable for any payments due under this CONTRACT which have not been invoiced to the TEXAS VETERANS COMMISSION within ninety (90) days following the service date or expiration of the State Fiscal Year in which goods or services were rendered, whichever is later.

14. Right to Audit.

Acceptance of funds under this CONTRACT acts as acceptance of the authority of the TEXAS VETERANS COMMISSION, the State Auditor's Office (SAO), federal funding agency or any successor agency, to conduct an audit or investigation of the CONTRACTOR or any subcontractors in connection with those funds during the term of the CONTRACT and thereafter, as provided by §2262.154, Texas Government Code and other law. Upon request, the CONTRACTOR and any of its subcontractors associated with this CONTRACT will provide the TEXAS VETERANS COMMISSION, the State Auditor's Office, federal funding agency, their successor agencies, or any of their duly authorized representatives any books, documents, papers and records which are directly pertinent to this CONTRACT for the purpose of conducting audits, examinations, investigations, matching funds validations, or making excerpts and transcriptions. The CONTRACTOR and subcontractors associated with this CONTRACT will cooperate fully with the above parties in the conduct of an audit, examination, investigation, funds validation, or the making of excerpts and transcriptions. The CONTRACTOR will ensure that this clause concerning the authority to audit funds received indirectly by subcontractors through CONTRACTOR and the requirement to cooperate is included in any subcontract it awards.

15. Monitoring.

The CONTRACTOR and any subcontractors associated with this CONTRACT agree to permit on-site monitoring visits, as deemed necessary by the TEXAS VETERANS COMMISSION to review all financial or other records and management control systems relevant to the provision of goods and services under this CONTRACT. The CONTRACTOR will include this requirement in any subcontract associated with this CONTRACT.

16. Assignment.

Neither party shall assign or subcontract the whole nor any part of the CONTRACT, including any right or duty required under it, without the other party's prior written consent. Any assignment made contrary to this provision shall be void.

17. CONFIDENTIAL INFORMATION.

A. Any Confidential Information received by the other Party under this CONTRACT may be disclosed only in accordance with applicable law. By signing this CONTRACT, the Parties certify that they are and intend to remain for the term of this CONTRACT, in compliance with all applicable state and federal laws and regulations with respect to privacy, security, and breach notification, including any other applicable law controlling the release of information created or obtained in the course of providing the services described in this CONTRACT.

B. "Confidential Information" means any communication or record (whether oral, written, electronically stored or transmitted, or in any other form) provided to or made available to the other Party electronically or through any other means that is 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.

C. CONTRACTOR will ensure that any subcontractor of CONTRACTOR who has access to Confidential Information will sign an agreement with CONTRACTOR that includes a requirement that the subcontractor shall comply with the terms of this section to protect Confidential Information, and CONTRACTOR will submit a copy of that subcontractor agreement to TEXAS VETERANS COMMISSION upon request.

D. The Parties will ensure that no Confidential Information is transmitted to or stored in a server that is located in a foreign country. The Parties are responsible for ensuring that any CONTRACT with a data storage provider does not store either Party's data on a server located in a foreign country.

18. Block Terrorism.

The parties must adhere to the directions in the President's Executive Order (EO) 13224, Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism. This Executive Order prohibits any transaction or dealing by United States persons, including but not limited to the making or receiving of any contribution of funds, goods, or services to or for the benefit of those persons listed in the General Services Administration's Excluded Parties List System (EPLS) which may be viewed on the System for Award Management (SAM) site at http://www.sam.gov.

19. Trafficking in Persons.

The parties acknowledge the requirements of 2 C.F.R.§175, including the U.S. Department of Education's modifications to these requirements, and agree to comply with the requirements regarding trafficking in persons.

20. Lobbying.

No funds provided under the CONTRACT will be used in any way to attempt to influence in any manner a member of Congress to favor or oppose any legislation or appropriation by Congress, or for lobbying with State or local legislators.

21. Not Ineligible.

Neither Party nor any principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in this transaction by any federal department or agency.

22. Non-Discrimination.

The Parties certify compliance with the Vocational Rehabilitation and Other Rehabilitation Services Act, 29 U.S.C. §794d, relating to electronic and information technology; the Housing and Urban Development Act, 12 U.S.C §1701u, relating to economic opportunities for low- and very low-income persons; Titles VI and VII of the Civil Rights Act, 42 U.S.C. §2000d, §2000e; §504 of the Rehabilitation Act of 1973 (29 U.S.C. 794); the Equal Opportunity Clause (Executive Order 11246) for any purchase in excess of $10,000; the Americans with Disabilities Act of 1990 (42 U.S.C. §12101); and all amendments to each.

23. Conflict of Interest.

All Parties have disclosed to the other Party(ies) any existing or potential conflict of interest relative to the performance of the CONTRACT. Failure to do so will be grounds for CONTRACT termination.

24. Felony Criminal Convictions.

The Parties represent and warrant that they have not and their employees performing services under this CONTRACT have not been convicted of a felony criminal offense, or that, if such a conviction has occurred, the Party has informed the other Party as to the facts and circumstances surrounding the conviction.

25. Executive.

The Parties certify that they are in compliance with Texas Government Code §669.003, relating to Contracting with the executive head of a state agency or former executive head of a state agency.

26. Web Content and Accessibility Guidelines.

The Parties shall follow Web Content and Accessibility Guidelines (WCAG). The Parties shall follow the most recent official W3C Recommendation for WCAG in effect at the time of CONTRACT execution as applicable for new websites, applications or redesigns that may be related to or paid with funds from this CONTRACT. The current version of the WCAG guidelines is available on the W3C Accessibility Standards website W3C.

27. Prohibited Technologies.

The Parties hereby certify that they are in compliance with Texas Government Code Chapter 620, prohibiting the use of certain social media applications and services on devices owned or leased by governmental entities; adopting a policy prohibiting the installation or use of a covered application on devices owned or leased by governmental entities; and requiring the removal of covered applications from those devices including the social media applications or services and hardware products listed on the Department of Information Resources (DIR) webpage located at: DIR Prohibited Technologies.

28. Antitrust Affirmation.

The CONTRACTOR affirms under penalty of perjury of the laws of the State of Texas that (1) in connection with this CONTRACT, neither CONTRACTOR, nor any representative of the CONTRACTOR have violated any provision of the Texas Free Enterprise and Antitrust Act, Tex. Bus. & Comm. Code Chapter 15; (2) in connection with this CONTRACT, neither CONTRACTOR nor any representative of the CONTRACTOR have violated any federal antitrust law; and (3) neither CONTRACTOR nor any representative of the CONTRACTOR have directly or indirectly communicated any of the contents of this CONTRACT to a competitor of the CONTRACTOR or any other company, corporation, firm, partnership or individual engaged in the same line of business as the CONTRACTOR.

29. Contracting Information Responsibilities.

In accordance with Section 552.372 of the Texas Government Code, CONTRACTOR agrees to: (1) preserve all Contracting information related to the CONTRACT as provided by the records retention requirements applicable to the Agency for the duration of the CONTRACT, (2) promptly provide to the TEXAS VETERANS COMMISSION any Contracting information related to the CONTRACT that is in the custody or possession of the CONTRACTOR on request of the TEXAS VETERANS COMMISSION, and (3) on termination or expiration of the CONTRACT, either provide at no cost to the Agency all Contracting information related to the CONTRACT that is in the custody or possession of the CONTRACTOR or preserve the Contracting information related to the CONTRACT as provided by the records retention requirements applicable to the TEXAS VETERANS COMMISSION. Except as provided by Section 552.374(c) of the Texas Government Code, the requirements of Subchapter J, Chapter 552, Government Code, may apply to the CONTRACT and the CONTRACTOR agrees that the CONTRACT can be terminated if the CONTRACTOR knowingly or intentionally fails to comply with a requirement of that subchapter.

30. Critical Infrastructure Affirmation.

Pursuant to Government Code Section 2274.0102, CONTRACTOR certifies that neither it nor its parent company, nor any affiliate of CONTRACTOR or its parent company, is: (1) majority owned or controlled by citizens or governmental entities of China, Iran, North Korea, Russia, or any other country designated by the Governor under Government Code Section 2274.0103, or (2) headquartered in any of those countries.

31. Cybersecurity Training.

CONTRACTOR represents and warrants that it will comply with the requirements of Section 2054.5192 of the Texas Government Code relating to cybersecurity training and required verification of completion of the training program.

32. Dealings with Public Servants Affirmation.

CONTRACTOR has not given, offered to give, nor intends to give at any time hereafter any economic opportunity,· future employment, gilt, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with this CONTRACT.

33. Debts and Delinquencies Affirmation.

The CONTRACTOR agrees that any payments due under the CONTRACT shall be applied toward any debt or delinquency that is owed to the State of Texas.

34. Disaster Recovery Plan.

In accordance with 13 TAC§ 6.94(A)(9), CONTRACTOR shall provide to TEXAS VETERANS COMMISSION the descriptions of its business continuity and disaster recovery plans.

35. Disclosure of Prior State Employment.

In accordance with Section 2254.033 of the Texas Government Code, relating to consulting services, CONTRACTOR certifies that it does not employ an individual who has been employed by TEXAS VETERANS COMMISSION or another agency at any time during the two years preceding the submission of the CONTRACT or, in the alternative, CONTRACTOR has disclosed in its CONTRACT the following: (i) the nature of the previous employment with TEXAS VETERANS COMMISSION or the other agency; (ii) the date the employment was terminated; (iii) the annual rate of compensation for the employment at the time of its termination.

36. Energy Company Boycotts.

If CONTRACTOR is required to make a verification pursuant to Section 2274.002 of the Texas Government Code, CONTRACTOR verifies that CONTRACTOR does not boycott energy companies and will not boycott energy companies during the term of the CONTRACT. If the CONTRACTOR does not make that verification, CONTRACTOR must state why the verification is not required.

37. Entities that Boycott Israel.

CONTRACTOR certifies that pursuant to Section 2271.001 of the Texas Government Code, CONTRACTOR does not boycott Israel and will not boycott Israel during the term of the CONTRACT resulting from this solicitation. If CONTRACTOR does not make that certification, CONTRACTOR must state why the certification is not required.

38. E-Verify Program.

CONTRACTOR certifies that for CONTRACTs for services, CONTRACTOR shall utilize the U.S. Department of Homeland Security's E-Verify system during the term of the CONTRACT to determine the eligibility of:

1) All persons employed by CONTRACTOR to perform duties within Texas; and

2) All persons, including subcontractors, assigned by CONTRACTOR to perform work pursuant the CONTRACT within the United States of America.

39. Excess Obligations Prohibited.

The CONTRACT is subject to termination or cancellation, without penalty to TEXAS VETERANS COMMISSION, either in whole or in part, subject to the availability of state funds.

40. False Statements.

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

41. Financial Participation Prohibited Affirmation.

Under Section 2155.004(b) of the Texas Government Code, CONTRACTOR certifies that the individual or business entity named in this 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.

42. Foreign Terrorist Organizations.

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

43. Former Agency Employees.

CONTRACTOR represents and warrants that none of its employees, including, but not limited to, those authorized to provide services under the CONTRACT, were former employees of the TEXAS VETERANS COMMISSION during the twelve (12) month period immediately prior to the date of execution of the CONTRACT.

44. Human Trafficking Prohibition.

Under Section 2155.0061 of the Texas Government Code, the CONTRACTOR certifies that the individual or business entity named in this CONTRACT or CONTRACT is not ineligible to receive the specified CONTRACT and acknowledges that this CONTRACT may be terminated and payment withheld if this certification is inaccurate.

45. Indemnification (General).

CONTRACTOR shall defend, indemnify and hold harmless the State of Texas and Texas Veterans Commission, and/or their officers, agents, employees, representatives, contractors, assignees, and/or designees from any and all liability, actions, claims, demands, or suits, and all related costs, attorney fees, and expenses arising out of, or resulting from any acts or omissions of contractor or its agents, employees, subcontractors, order fulfillers, or suppliers of subcontractors in the execution or performance of the contract and any purchase orders issued under the CONTRACT. The defense shall be coordinated by CONTRACTOR with the Office of the Texas Attorney General when Texas state agencies are named defendants in any lawsuit, and CONTRACTOR may not agree to any settlement without first obtaining the concurrence from the Office of the Texas Attorney General. CONTRACTOR and Texas Veterans Commission agree to furnish timely written notice to each other of any such claim.

46. No Conflicts of Interest.

CONTRACTOR represents and warrants that the provision of goods and services or other performance under the CONTRACT will not constitute an actual or potential conflict of interest or reasonably create an appearance-ef impropriety. · -

47. Prior Disaster Relief CONTRACT Violation. Under Sections 2155.006 and 2261.053 of the Texas Government Code, the CONTRACTOR certifies that the individual or business entity named in this CONTRACT is not ineligible to receive the specified CONTRACT and acknowledges that this CONTRACT may be terminated and payment withheld if this certification is inaccurate.

48. Signature Authority. By signing this CONTRACT, the CONTRACTOR represents and warrants that the individual signing this CONTRACT, and the documents made part of this CONTRACT, is authorized to sign such documents on behalf of the CONTRACTOR and to bind the CONTRACTOR under any CONTRACT that may result from the submission of this CONTRACT.