ESBD_527225_1781307340828_ATTACHMENT G.3 Terms & Conditions v7.pdf

Revision Date: 12/16/2025

Texas Military Department

Standard Terms and Conditions

Revision 7

Affirmations and Certifications

Respondents are asked to read the Standard Terms and Conditions in its entirety. If any assurance is shown to be false, the Contract may be terminated, payment withheld, and the Respondent shall be liable to Texas Military Department (TMD) for attorney’s fees and the costs necessary to complete the contract, including the cost of advertising and awarding a subsequent contract:

1. Abortion Provider and Affiliate Transactions Prohibited Respondent represents and warrants that the contract is not a taxpayer resource transaction prohibited by Section 2272.003 of the Texas Government Code and that payments made by Agency to Respondent and Respondent’s receipt of appropriated funds under the contract are not prohibited by Article IX, Section 6.24 of the General Appropriations Act.

2. Agency’s Right to Audit Respondent will make available at reasonable times and upon reasonable notice, and for reasonable periods, work papers, reports, books, records, and supporting documents kept current by Respondent pertaining to the contract for purposes of inspecting, monitoring, auditing, or evaluating by Agency and the State of Texas.

3. Americans With Disabilities Act Respondent represents and warrants its compliance with the requirements of the Americans with Disabilities Act (ADA) and its implementing regulations, as each may be amended.

4. Assignment (for Goods) Respondent shall not assign its rights under the contract or delegate the performance of its duties under the contract without prior written approval from Agency. Any attempted assignment in violation of this provision is void and without effect.

Or

Neither Party may assign the contract or assign, transfer or delegate, in whole or in part, any of its interest in, or rights or obligations under, the contract without the prior written consent of the other Party, and any attempted or purported assignment, transfer or delegation thereof without such consent shall be null and void. Notwithstanding the foregoing, upon prior written notification to the other Party, either Party may assign the contract or assign, transfer or delegate, in whole or in part, any of its interest in, or rights or obligations under, the contract without such prior written consent to: (1) a successor in interest (for Agency, another state agency as designated by the Texas Legislature) or (2) a subsidiary, parent company, or other entity in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

5. Antitrust Affirmation The undersigned affirms under penalty of perjury of the laws of the State of Texas that (1) in connection with this Response neither I nor any representative of the Respondent have violated any provision of the Texas Free Enterprise and Antitrust Act, Tex. Bus. & Comm.

Code Chapter 15; (2) in connection with this Response, neither I nor any representative of the Respondent have violated any federal antitrust law; and (3) neither I nor any representative of the Respondent have directly or indirectly communicated any of the contents of this Response to a competitor of the Respondent or any other company, corporation, firm, partnership, or individual engaged in the same line of business as the Respondent.

6. Binding Effect The contract shall inure to the benefit of, be binding upon, and be enforceable against, each Party and their respective permitted successors, assigns, transferees and delegates.

Or

The contract shall be binding upon and shall ensure to the benefit of Agency and Respondent and to their representatives, successors and assigns

7. Buy Texas Affirmation In accordance with Section 2155.4441 of the Texas Government Code, Respondent agrees that during the performance of a contract for services it shall purchase products and materials produced in Texas when they are available at a price and time comparable to products and materials produced outside this state.

8. Change in Law and Compliance with Laws Any alterations, additions, or deletions to the terms of the contract that are required by changes in federal or state law or regulations are automatically incorporated into the contract without a written amendment hereto and shall become effective on the date designated by such law or by regulation.

Or

Respondent shall comply with all laws, regulations, requirements and guidelines applicable to a vendor providing services and products required by the contract to the State of Texas, as these laws, regulations, requirements and guidelines currently exist and as amended throughout the term of the contract. Agency reserves the right, in its sole discretion, to unilaterally amend the contract prior to award and throughout the term of the contract to incorporate any modifications necessary for the Agency’s compliance, as an agency of the State of Texas, with all applicable state and federal laws, regulations, requirements and guidelines.

9. Contract Term The initial term of the contract shall be for one (1) year from [Insert Date] to [Insert Date].

Agency may, in its sole discretion, exercise the option to extend the contract for up to three

(3) additional one (1) year periods. To exercise the option to extend the term, the Agency will notify Respondent; such notice may be by Purchase Order issuance.

10. Child Support Obligation Affirmation Under Section 231.006 of the Texas Family Code, the vendor or applicant certifies that the individual or business entity named in this contract, bid or application is not ineligible to receive the specified grant, loan, or payment and acknowledges that this contract may be terminated, and payment may be withheld if this certification is inaccurate in addition to other remedies set out in 231.006(f).

Name: SSN:

Name: SSN:

Name: SSN:

FEDERAL PRIVACY ACT NOTICE: This notice is given pursuant to the Federal Privacy Act.

Disclosure of your Social Security Number (SSN) is required under section 231.006(c) and Section 231.302(c)(2) of the Texas Family Code. The SSN will be used to identify persons that may owe child support and will be kept confidential to the fullest extent allowed under Section 231.302(c), Texas Family Code.

11. Cloud Computing State Risk and Authorization Management Program (TX-TAMP) Pursuant to Section 2054.0593 (d)-(f) of the Texas Government Code, relating to cloud computing state risk and authorization management program, Respondent represents and warrants that it complies with the requirements of the state risk and authorization management program and Respondent agrees that throughout the term of the contract it shall maintain its certifications and comply with the program requirements in the performance of the contract.

12. Computer Equipment Recycling Program Respondent certifies its compliance with Subchapter Y, Chapter 361, of the Texas Health and Safety Code and the Texas Commission Environmental Quality rules in 30 TAC Chapter 328.

13. Contracting Information Responsibilities In accordance with Section 552.372 of the Texas Government Code, Respondent 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 Agency any contracting information related to the contract that is in the custody or possession of the Respondent on request of the Agency, 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 Respondent or preserve the contracting information related to the contract as provided by the records retention requirements applicable to the Agency. 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 Respondent agrees that the contract can be terminated if the Respondent knowingly or intentionally fails to comply with a requirement of that subchapter.

14. COVID-19 Vaccine Passport Prohibition Respondent certifies that it does not require its customers to provide any documentation certifying the customer’s COVID-19 vaccination or post-transmission recovery on entry to, to gain access to, or to receive service from the Respondent’s business. Respondent acknowledges that such a vaccine or recovery requirement would make Respondent ineligible for state-funded contract.

15. Critical Infrastructure Affirmations Pursuant to Government Code Section 2275.0102, Respondent certifies that neither it nor its parent company, nor any affiliate of Respondent 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 2275.0103, or (2) headquartered in any of those countries.

16. Cybersecurity Training Respondent 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.

17. Damage to Government Property Respondent shall be liable for all damage to government-owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance pursuant to the contract. Respondent shall notify the Agency in writing of any such damage within one (1) calendar day. Respondent is responsible for the removal of all debris resulting from work performed under the contract.

Or

In the event of loss, destruction or damage to any Agency or State of Texas property by Respondent or Respondent’s employees, agents, subcontractors, and suppliers, Respondent shall be liable to Agency and the State of Texas the full cost of repair, reconstruction or replacement of the lost, destroyed or damaged property. Respondent will reimburse Agency and the State of Texas for such property damage within ten (10) calendar days after Respondent’s receipt of Agency’s notice of amount due.

18. Disclosure of Interested Parties Respondent represents and warrants that if selected for award of a contract as a result of the Solicitation, Respondent will submit to Agency a Certificate of Interested Parties prior to contract execution in accordance with Section 2252.908 of the Texas Government Code.

19. Discounts If Respondent at any time during the term of the contract provides a discount on the final contract costs, Respondent will notify Agency in writing ten (10) calendar days prior to effective date of discount. Agency will generate a Purchase Order Change Notice and send a revised Purchase Order to Respondent.

Or

Notwithstanding any other provision to the contrary, all the benefits, pricing and any hourly rates granted by Respondent to Agency herein are at least as favorable as the benefits, pricing and hourly rates granted by Respondent to any previous client of Respondent for services and/or products similar to those provided hereunder. If Respondent enters into any subsequent agreement with any other client during the term of this contract which provides for benefits, pricing and/or hourly rates that are more favorable than those contained in this contract, Respondent shall notify Agency promptly of the existence of such more favorable benefits, pricing and/or hourly rates and Agency shall have the right to receive the more favorable contractual terms immediately. If requested in writing by Agency, Respondent hereby agrees to amend this contract to contain the more favorable benefits, pricing and/or hourly rates.

20. Electrical Items All electrical items must meet all applicable OSHA standards and regulations and bear the appropriate listing from Underwriters Laboratory (UL), Factory Mutual Resource Corporation (FMRC), or National Electrical Manufacturers Association (NEMA).

21. Equal Employment Opportunity Respondent represents and warrants its compliance with all applicable duly enacted state and federal laws governing equal employment opportunities.

22. Federal Occupational Safety and Health Law Respondent represents and warrants that all articles and services shall meet or exceed the safety standards established and promulgated under the Federal Occupational Safety and Health Act of 1970, as amended (29 U.S.C. Chapter 15).

23. Force Majeure Neither Respondent nor Agency shall be liable to the other for any delay in, or failure of performance, of any requirement included in the contract caused by force majeure. The existence of such causes of delay or failure shall extend the period of performance until after the causes of delay or failure have been removed provided the non-performing party exercises all reasonable due diligence to perform. Force majeure is defined as acts of God, war, fires, explosions, hurricanes, floods, failure of transportation, or other causes that are beyond the reasonable control of either party and that by exercise of due foresight such party could not reasonably have been expected to avoid, and which, by the exercise of all reasonable due diligence, such party is unable to overcome.

24. Immigration Respondent represents and warrants that it shall comply with the requirements of the Immigration and Nationality Act (8 U.S.C.§ 1101 et seq.) and all subsequent immigration laws and amendments.

25. Independent Contractor Respondent acknowledges and agrees that it is furnishing products and services in the capacity of an independent contractor and that Respondent and its personnel are not employees of the Agency or the State of Texas.

Or

Respondent and Respondent’s employees, representatives, agents, subcontractors, suppliers, and third-party service providers shall serve as independent contractors in providing the services under the contract. Neither Respondent nor Agency is an agent of the other and neither may make any commitments on the other party’s behalf. Should Respondent subcontract any of the services required in the contract, Respondent expressly understands and acknowledges that in entering into such subcontract(s), Agency is in no manner liable to any subcontractor(s) of Respondent. In no event shall this provision relieve Respondent of the responsibility for ensuring that the services performed under all subcontracts are rendered in compliance with the contract. Respondent shall have no claim against Agency for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind. The contract shall not create any joint venture, partnership, agency, or employment relationship between Respondent and Agency.

26. Legal and Regulatory Actions Respondent represents and warrants that it is not aware of and has received no notice of any court or governmental agency actions, proceedings or investigations, etc., pending or threatened against Respondent or any of the individuals or entities included in the Response within the five (5) calendar years immediately preceding the submission of the Response that would or could impair Respondent’s performance under the contract, relate to the solicited or similar goods or services, or otherwise be relevant to Agency’s consideration of the Response. If Respondent is unable to make the preceding representation and warranty, then Respondent instead represents and warrants that it has included as a detailed attachment in its Response a complete disclosure of any such court or governmental agency actions, proceedings or investigations, etc. that would or could impair Respondent’s performance under the contract, relate to the solicited or similar goods or services, or otherwise be relevant to Agency’s consideration of the Response. In addition, Respondent represents and warrants that it shall notify Agency in writing within five (5) business days of any changes to the representations or warranties in this clause and understands that failure to so timely update Agency shall constitute breach of contract and may result in immediate termination of the contract.

27. License Grant (Simple) Respondent hereby grants to Agency a non-exclusive, perpetual, irrevocable, worldwide, transferable, fully paid, royalty-free, right and license:

(a) to reproduce, modify, distribute, store, publicly perform, publicly display, create derivative works of, and otherwise exploit the deliverables, in each case without any restrictions and without accounting to Respondent; and

(b) to sublicense any or all such rights to third parties

28. Data Management and Security Controls In accordance with Section 2054.138 of the Texas Government Code, Respondent certifies that it will comply with the security controls required under this contract and will maintain records and make them available to Agency as evidence of Respondent’s compliance with the required controls.

29. Dealings with Public Servants Affirmation Respondent 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 submitted Response.

30. Debts and Delinquencies Affirmation Respondent agrees that any payments due under the contract shall be applied towards any debt or delinquency that is owed to the State of Texas.

31. Disclosure of Prior State Employment In accordance with Section 2254.003 of the Texas Government Code, relating to consulting services, Respondent certifies that it does not employ an individual who has been employed by Agency or another agency at any time during the two years preceding the submission of the Response or, in the alternative, Respondent has disclosed in its Response the following:

(i) the nature of the previous employment with Agency or the other agency; (ii) the date the employment was terminated; and (iii) the annual rate of compensation for the employment at the time of its termination.

32. Energy Company Boycotts If Respondent is required to make a verification pursuant to Section 2276.002 of the Texas Government Code, Respondent verifies that Respondent does not boycott energy companies and will not boycott energy companies during the term of the Contract. If Respondent does not make that verification, Respondent must so indicate in its Response and state why the verification is not required.

33. Entities that Boycott Israel If Respondent is required to make a certification pursuant to Section 2271.001 of the Texas Government Code, Respondent certifies that Respondent does not boycott Israel and will not boycott Israel during the term of the contract resulting from this solicitation. If Respondent does not make that certification, Respondent must indicate that in its Response and state why the certification is not required.

34. E-Verify Program Respondent certifies that for Contracts for services, Respondent shall utilize the U.S.

Department of Homeland Security’s E-Verify system during the term of the contract to determine the eligibility of:

a) all persons employed by Respondent to perform duties within Texas; and

b) all persons, including subcontractors, assigned by Respondent to perform work pursuant the contract within the United States of America

35. Excluded Parties

Respondent certifies that it is not listed in the prohibited vendors list authorized by Executive Order No. 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.

36. Executive Head of a State Agency Affirmation Under Section 669.003 of the Texas Government Code, Respondent certifies that it does not employ or has disclosed its employment of any former executive head of the Agency.

Respondent must provide the following information in the Response.

Name of Former Executive:

Name of State Agency:

Date of Separation from State Agency:

Position with Respondent:

Date of Employment with Respondent:

37. False Statements Respondent represents and warrants that all statements and information prepared and submitted in this document are current, complete, true, and accurate. Submitting a Response with a false statement or material misrepresentations made during the performance of a contract is a material breach of contract and may void the submitted Response and any resulting contract.

38. Financial Participation Prohibited Affirmation Under Section 2155.004(b) of the Texas Government Code, Respondent certifies that the individual or business entity named in this Response or 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.

39. Firearm Entities and Trade Associations Discriminations If Respondent is required to make a verification pursuant to Section 2274.002 of the Texas Government Code, Respondent verifies that it (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. If Respondent does not make that verification, Respondent must so indicate in its response and state why the verification is not required.

40. Foreign Terrorist Organizations Respondent 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.

41. Former Agency Employees Respondent 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 Agency during the twelve (12) month period immediately prior to the date of execution of the contract.

42. Human Trafficking Prohibition Under Section 2155.0061 of the Texas Government Code, the Respondent certifies that the individual or business entity named in this Response 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.

43. Lobbying Prohibition Respondent represents and warrants that Agency’s payments to Respondent and Respondent’s receipt of appropriated or other funds under the contract are not prohibited by Sections 556.005 or 556.0055 of the Texas Government Code.

44. Media Releases Respondent shall not use Agency’s name, logo, or other likeness in any press release, marketing material, or other announcement without Agency’s prior written approval. Agency does not endorse any vendor, commodity, or service. Respondent is not authorized to make or participate in any media releases or public announcements pertaining to this procurement, the

Response or the services to which they relate without Agency’s prior written consent, and then only in accordance with explicit written instructions from Agency.

45. No Conflicts of Interest Respondent 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 of impropriety.

46. No Felony Criminal Convictions Respondent represents that neither Respondent nor any of its employees, agents, or representatives, including any subcontractors and employees, agents, or representative of such subcontractors, have been convicted of a felony criminal offense or that if such a conviction has occurred Respondent has fully advised Agency in writing of the facts and circumstances surrounding the convictions.

47. Prior Disaster Relief Contract Violation Under Sections 2155.006 and 2261.053 of the Texas Government Code, the Respondent certifies that the individual or business entity named in this Response 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.

48. Public Information Act Information, documentation, and other material in connection with this Solicitation or any resulting contract may be subject to public disclosure pursuant to Chapter 552 of the Texas Government Code (the “Public Information Act”). In accordance with Section 2252.907 of the Texas Government Code, Respondent is required to make any information created or exchanged with the State pursuant to the 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 the State

49. Signature Authority By submitting the Response, Respondent represents and warrants that the individual submitting this document, and the documents made part of this Response is authorized to sign such documents on behalf of the Respondent and to bind the Respondent under any contract that may result from the submission of this Response.

50. Standard of Care for Architectural and Engineering Contractors Pursuant to Section 2254.0031 of the Texas Government Code, which incorporates by reference Section 271.904(d) of the Texas Local Government Code, Respondent shall perform services (1) with professional skill and care ordinarily provided by competent engineers or architects practicing under the same or similar circumstances and professional license, and (2) as expeditiously as is prudent considering the ordinary professional skill and care of a competent engineer or architect.

51. State Auditor’s Right to Audit The state auditor may conduct an audit or investigation of any entity receiving funds from the state directly under the contract or indirectly through a subcontract under the contract. The acceptance of funds directly under the contract or indirectly through a subcontract under the contract acts as acceptance of the authority of the state auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. Under the direction of the legislative audit committee, an entity that is the subject of an audit or investigation by the state auditor must provide the state auditor with access to any information the state auditor considers relevant to the investigation or audit.

52. Suspension and Debarment Respondent 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 Texas Comptroller of Public Accounts and the System for Award Management (SAM) maintained by the General Services Administration.

53. Technology Access Clause Respondent expressly acknowledges that state funds may not be expended in connection with the purchase of an automated information system unless that system meets certain statutory requirements relating to accessibility by persons with visual impairment. Accordingly, Respondent represents and warrants to Agency that the technology provided to Agency for purchase is capable, either by virtue of features included within the technology or because it is readily adaptable by use with other technology, of:

• providing equivalent access for effective use by both visual and non-visual means;

• presenting information, including prompts used for interactive communications, in formats intended for nonvisual use; and

• being integrated into networks for obtaining, retrieving, and disseminating information used by individuals who are not blind or visually impaired.

For the purposes of this Section, the phrase “equivalent access” means a substantially similar ability to communicate with or make use of the technology, either directly by features incorporated within the technology or by other reasonable means such as assistive devices or services which would constitute reasonable accommodations under the Americans with Disabilities Act or similar state or federal laws. Examples of methods by which equivalent access may be provided include, but are not limited to, keyboard alternatives to mouse commands and other means of navigating graphical displays, and customizable display appearance.

In accordance with Title 1, Chapter 213, Subchapter B of the Texas Government Administrative Code, the Technology Access Clause contract provision remains in effect for any contract entered into before September 1, 2006.

54. Television Equipment Recycling Program Respondent certifies its compliance with Subchapter Z, Chapter 361 of the Texas Health and Safety Code, related to the Television Equipment Recycling Program.

55. Terms and Conditions Attached to Response Attached to Response Any terms and conditions attached to a Response will not be considered unless specifically referred to in the Response.

56. Texas Bidder Affirmation Respondent certifies that if a Texas address is shown as the address of the Respondent on the Response, Respondent qualifies as a Texas Bidder as defined in Section 2155.444(c) of the Texas Government Code.

57. Disaster Recovery Plan In accordance with 13 TAC 6.94(a)(9), upon request of TMD, Respondent shall provide copies of its most recent business continuity and disaster recovery plans.

58. Dispute Resolution The dispute resolution process provided for in chapter 2260 of the Texas Government Code must be used to attempt to resolve any dispute arising under the Contract.

59. Dispute Resolution (Engineering, Architectural, or Construction Services)

Subject to Texas Government Code, Section 2260.002, the dispute resolution process provided for in Chapter 2260 of the Texas Government Code and set forth below in subsections (a)-(d) shall be used by the parties to attempt to resolve all disputes arising under this contract. In accordance with the Texas Civil Practice and Remedies Code, Section 114.005, the parties agree claims encompassed by Texas Government Code, Section 2260.002(3) and Texas Civil Practice and Remedies Code Section 114.002 shall be governed by the dispute resolution process set forth below in subsections (a)- (d).

a) Notwithstanding Texas Government Code, Chapter 2260.002(3) and Chapter 114.012 and any other statute or applicable law, if the Respondent’s claim for breach of contract cannot be resolved by the parties in the ordinary course of business, Respondent may make a claim against Agency for breach of contract and the Agency may assert a counterclaim against the Respondent as is contemplated by Texas Government Code, Chapter 2260, Subchapter B. In such event, Respondent must provide written notice to Agency of a claim for breach of the contract not later than the 180th day after the date of the event giving rise to the claim. The notice must state with particularity: (1) the nature of the alleged breach; (2) the amount the Respondent seeks as damages; and (3) the legal theory of recovery.

b) The chief administrative officer, or if designated in the contract, another officer of the Agency, shall examine the claim and any counterclaim and negotiate with the Respondent in an effort to resolve them. The negotiation must begin no later than the 120th day after the date the claim is received, as is contemplated by Texas Government Code, Chapter 2260, Section 2260.052.

c) If the negotiation under paragraph (b) above results in the resolution of some disputed issues by agreement or in a settlement, the parties shall reduce the agreement or settlement to writing and each party shall sign the agreement or settlement. A partial settlement or resolution of a claim does not waive a party’s rights under this contract as to the parts of the claim that are not resolved.

d) If a claim is not entirely resolved under paragraph (b) above, on or before the 270th day after the date the claim is filed with Agency, unless the parties agree in writing to an extension of time, the parties may agree to mediate a claim made under this dispute resolution procedure. This dispute resolution procedure is the Respondent’s sole and exclusive process for seeking a remedy for an alleged breach of contract by the Agency if the parties are unable to resolve their disputes as described in this section.

e) Nothing in the contract shall be construed as a waiver of the state’s or the Agency’s 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 the State of Texas.

The failure to enforce, or any delay in the enforcement, of any privileges, rights, defenses, remedies, or immunities available to 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. Agency does not waive any privileges, rights, defenses, or immunities available to Agency by entering into this contract or by its conduct, or by the conduct of any representative of Agency, prior to or subsequent to entering into this contract.

f) Compliance with the dispute resolution process provided for in Texas Government Code, Chapter 2260, subchapter B and incorporated by reference in subsection (a)-(d) above is a condition precedent to the

Respondent:

i. filing suit pursuant to Chapter 114 of the Civil Practices and Remedies Code;

or

ii. initiating a contested case hearing pursuant to Subchapter C of Chapter 2260 of the Texas Government Code.

60. Excess Obligations Prohibited The contract is subject to termination or cancellation, without penalty to Agency, either in whole or in part, subject to the availability of state funds.

61. Governing Law and Venue The Contract shall be governed by and construed in accordance with the laws of the State of Texas, without regard to the conflicts of law provisions. The venue of any suit arising under the Contract is fixed in any court of competent Jurisdiction of Travis County, Texas, unless the specific venue is otherwise identified in a statute which directly names or otherwise identifies its applicability to the contracting Agency.

62. Indemnification (General)

RESPONDENT SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE STATE

OF TEXAS AND AGENCY, 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 RESPONDENT 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 RESPONDENT WITH THE OFFICE OF THE TEXAS

ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED

DEFENDANTS IN ANY LAWSUIT AND THE RESPONDENT MAY NOT AGREE TO

ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE

OFFICE OF THE TEXAS ATTORNEY GENERAL. RESPONDENT AND AGENCY

AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH

CLAIM.

63. Indemnification (Engineering or Architectural Services)

RESPONDENT SHALL INDEMNIFY AND HOLD HARMLESS THE STATE OF TEXAS

AND AGENCY, 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 DAMAGES, COSTS, ATTORNEY FEES, AND EXPENSES TO THE EXTENT

CAUSED BY, ARISING OUT OF, OR RESULTING FROM ANY ACTS OF

NEGLIGENCE, INTENTIONAL TORTS, WILLFUL MISCONDUCT, PERSONAL

INJURY OR DAMAGE TO PROPERTY, AND/OR OTHERWISE RELATED TO

RESPONDENT’S PERFORMANCE, AND/OR FAILURES TO PAY A

SUBCONTRACTOR OR SUPPLIER BY THE RESPONDENT OR ITS AGENTS,

EMPLOYEES, SUBCONTRACTORS, ORDER FULFILLERS, CONSULTANTS UNDER

CONTRACT TO RESPONDENT, OR ANY OTHER ENTITY OVER WHICH THE

CONTRACTOR EXERCISES CONTROL, OR SUPPLIERS OF SUBCONTRACTORS

IN THE EXECUTION OR PERFORMANCE OF THE CONTRACT. THE DEFENSE

SHALL BE COORDINATED BY RESPONDENT WITH THE OFFICE OF THE TEXAS

ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED

DEFENDANTS IN ANY LAWSUIT AND RESPONDENT MAY NOT AGREE TO ANY

SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE

OFFICE OF THE TEXAS ATTORNEY GENERAL. RESPONDENT AND AGENCY

AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH

CLAIM

64. Indemnification (IP)

RESPONDENT SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS AGENCY

AND THE STATE OF TEXAS FROM AND AGAINST ANY AND ALL CLAIMS,

VIOLATIONS, MISAPPROPRIATIONS OR INFRINGEMENT OF ANY PATENT,

TRADEMARK, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL

PROPERTY RIGHTS AND/OR OTHER INTANGIBLE PROPERTY, PUBLICITY OR

PRIVACY RIGHTS, AND/OR IN CONNECTION WITH OR ARISING FROM: (1) THE

PERFORMANCE OR ACTIONS OF RESPONDENT PURSUANT TO THIS CONTRACT;

(2) ANY DELIVERABLE,WORK PRODUCT, CONFIGURED SERVICE OR OTHER

SERVICE PROVIDED HEREUNDER; AND/OR (3) AGENCY’S AND/OR

RESPONDENT’S USE OF OR ACQUISITION OF ANY REQUESTED SERVICES OR

OTHER ITEMS PROVIDED TO AGENCY BY RESPONDENT OR OTHERWISE TO

WHICH AGENCY HAS ACCESS AS A RESULT OF RESPONDENT’S PERFORMANCE

UNDER THE CONTRACT. RESPONDENT AND AGENCY AGREE TO FURNISH

TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM.

RESPONDENT SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE, INCLUDING

ATTORNEYS’ FEES. THE DEFENSE SHALL BE COORDINATED BY RESPONDENT

WITH THE OFFICE OF THE TEXAS ATTORNEY GENERAL(OAG) WHEN TEXAS

STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND

RESPONDENT MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST

OBTAINING THE CONCURRENCE FROM OAG. IN ADDITION, RESPONDENT WILL

REIMBURSE AGENCY AND THE STATE OF TEXAS FOR ANY CLAIMS, DAMAGES,

COSTS, EXPENSES OR OTHER AMOUNTS, INCLUDING, BUT NOT LIMITED TO,

ATTORNEYS’ FEES AND COURT COSTS, ARISING FROM ANY SUCH CLAIM. IF

AGENCY DETERMINES THAT A CONFLICT EXISTS BETWEEN ITS INTERESTS

AND THOSE OF RESPONDENT OR IF AGENCY IS REQUIRED BY APPLICABLE

LAW TO SELECT SEPARATE COUNSEL, AGENCY WILL BE PERMITTED TO

SELECT SEPARATE COUNSEL AND RESPONDENT WILL PAY ALL REASONABLE

COSTS OF AGENCY’S COUNSEL.

65. National Anthem Verification If Respondent is a professional sports team as defined by Section 2004.002 of the Texas Occupations Code, Respondent will play the United States national anthem at the beginning of each team sporting event held at the Respondent’s home venue or other venue controlled by Respondent for the event. Failure to comply with this obligation constitutes a default of this contract, and immediately subjects Respondent to the penalties for default, such as repayment of money received or ineligibility for additional money. In addition, Respondent may be debarred from contracting with the State. The Agency or the Attorney General may strictly enforce this provision.

66. Abandonment or Default If Respondent defaults on this Contract, Texas Military Department reserves the right to cancel this Contract without notice and either re-solicit or re-award the Contract to the next best responsive and responsible Respondent. The defaulting Respondent will not be considered in the re-solicitation and may not be considered in future solicitations for the same type of work, unless the specification or scope of work significantly changed. The period of suspension will be determined by the agency based on the seriousness of the default

67. Delivery

If delay is foreseen, Respondent shall give written notice to Agency immediately upon discovering a delay will occur. Respondent must keep Agency advised at all times of status of progress for the services being provided. Default in meeting deliverable timelines (without accepted reasons) or failure to meet deliverable specifications authorizes Agency to purchase the services of this solicitation elsewhere and charge any increased costs for the services, including the cost of rebidding, to the Respondent. No substitutions are permitted without written approval of Agency.

68. Disclosure of Potential Conflicts of Interest; Certain Contracts Prohibited Pursuant to Section 2261.252 of the Texas Government Code, the Department may not enter into a Contract for the purchase of goods or services with a private vendor if certain positions within the agency including the Adjutant General, Executive Director, General Counsel or the Procurement Director or their covered family members have a financial interest in the vendor. Any contract found to violate Government Code 2261.252 is void.

69. Drug-Free Workplace Respondent represents and warrants that it shall comply with the applicable provisions of the Drug- Free Workplace Act of 1988 (41 U.S.C. § 701 et seq.) and maintain a drug-free work environment.

70. Entire Agreement Any Contract resulting from this solicitation represents the entire agreement between the parties. No prior agreement or understanding, oral or otherwise, of the parties or their agents will be valid or enforceable unless embodied in the Contract documents.

71. Fraud, Waste, and Abuse By submitting a response, Respondent represents and warrants that it has read and understood and will comply with Agency’s Anti-Fraud Policy, found at https://www.comptroller.texas.gov/about/policies/ethics.php, as such Policy currently reads and as it is amended throughout the term of the Contract.

72. Limitation on Authority Respondent shall have no authority to act for or on behalf of Agency or the State of Texas except as expressly provided for in the contract; no other authority, power or use is granted or implied. Respondent may not incur any debt, obligation, expense or liability of any kind on behalf of Agency or the State of Texas.

73. No Implied Waiver The failure of a Party to insist at any time upon the strict performances of any covenant or agreement or to exercise any option, right, power, or remedy contained in the contract shall not be construed as a waiver or a relinquishment thereof for the future.

Or

Failure of a Party to require performance by another Party under the contract will not affect the right of such Party to require performance in the future. No delay, failure, or waiver of either Party’s exercise or partial exercise of any right or remedy under the contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the contract will not be construed as a waiver of any continuing or successive breach.

Or

No provision of the contract shall constitute or be construed as a waiver of any of the privileges, rights, defenses, remedies, or immunities available to Agency as an agency of the State of Texas or otherwise available to Agency. The failure to enforce or any delay in the enforcement of any privileges, rights, defenses, remedies, or immunities detailed in the contract or otherwise available to Agency by law will not constitute a waiver of said privileges, rights, defenses, remedies, or immunities or be considered as a basis for estoppel.

74. No Quantity Guarantees Agency makes no express or implied warranty whatsoever that any minimum compensation or minimum quantity will be guaranteed under the contract.

Or

The contract is not exclusive to the Respondent. Agency may obtain products and related services from other sources during the term of the contract. Agency makes no express or implied warranties whatsoever that any particular quantity or dollar amount of products and related services will be procured through the contract.

75. No Third-Party Beneficiaries

The contract is made solely and specifically among and for the benefit of the parties named herein and their respective successors and assigns, and no other person shall have any right, interest, or claims hereunder or be entitled to any benefits pursuant to or on account of the contract as a third-party beneficiary or otherwise.

Or

Nothing contained in the contract, either expressed or implied, is intended to confer on any person other than the Parties, or their respective permitted successors, assigns, transferees or delegates, any interests, rights, remedies, obligations or liabilities pursuant to, or by reason of, this contract.

76. Patents, Trademarks, and Copyrights

Respondent agrees to defend and indemnify the Agency and State from claims involving infringement or violation of patents, trademarks, copyrights, trade secrets, or other proprietary rights, arising out of the Agency’s or the State’s use of any good or service provided by the Respondent as a result of this solicitation.

77. Permits, Certifications, and Licenses

Respondent represents and warrants that it has determined what licenses, certifications and permits are required to perform services under the contract and has acquired all applicable licenses, certifications, and permits.

78. Prompt Payment Payment shall be made in accordance with Chapter 2251 of the Texas Government Code, commonly known as the Texas Prompt Payment Act. Chapter 2251 of the Texas Government Code shall govern remittance of payment and remedies for late payment and non-payment.

Or

All payments to Respondent by Agency, any payments by Respondent to any subcontractor, and any payments by a subcontractor to any other person or entity that provides goods or services under this contract shall be made in compliance with Chapter 2251 of the Texas Government Code and 34 Texas Administrative Code § 20.487.

79. Property Rights For purposes of the contract, the term “Work” is defined as all work papers, materials, approaches, designs, specifications, systems, software, programs, source code, documentation, methodologies, concepts, intellectual property or other property developed, produced, generated in connection with the services provided under the contract. Agency and Respondent intend this agreement to be a contract for the services and each considers the Work and any and all documentation or other products and results of the services to be rendered by Respondent to be a work made for hire. Respondent and Respondent’s employees will have no rights in or ownership of the Work and any and all documentation or other products and results of the services or any other property of Agency. Respondent acknowledges and agrees that the Work (and all rights therein) belongs to and shall be the sole and exclusive property of Agency. If for any reason the Work would not be considered a work-for-hire under applicable law, Respondent does hereby sell, assign, and transfer to Agency, its successors and assigns, the entire right, title and interest in and to the copyright in the Work and any registrations and copyright applications relating thereto and any renewals and extensions thereof, and in and to all works based upon, derived from, or incorporating the Work, and in and to all income, royalties, damages, claims and payments now or hereafter due or payable with respect thereto, and in and to all causes of action, either in law or in equity for past, present, or future infringement based on the copyrights, and in and to all rights corresponding to the foregoing. Respondent agrees to execute all papers and to perform such other property rights, as Agency may deem necessary to secure for Agency or its designee the rights herein assigned. In the event that Respondent has any rights in and to the Work that cannot be assigned to Agency, Respondent hereby grants to Agency an exclusive, worldwide, royalty-free, irrevocable, and perpetual license to directly and indirectly reproduce, distribute, modify, create derivative works of, publicly perform and publicly display, such rights to make, have made, use, sell and offer for sale any products developed by practicing such rights, and to otherwise use such rights, with the right to sublicense such rights through multiple levels of sublicenses. No later than the first calendar day after the termination or expiration of the contract or upon Agency’s request, Respondent shall deliver to Agency all completed, or partially completed, Work and any and all documentation or other products and results of the services. Failure to timely deliver such Work or any and all documentation or other products and results of the services will be considered a material breach of the contract. Respondent will not make or retain any copies of the Work or any and all documentation or other products and results of the services without the prior written consent of Agency.

Or

For purposes of the contract, the term “Work Product” is defined as all work papers, materials, approaches, designs, specifications, systems, software, programs, source code, documentation, methodologies, concepts, intellectual property or other property and/or results of the services that are developed, produced, generated or provided to Agency in connection with, or as a result of, the services provided under the contract. Agency and Respondent intend this agreement to be a contract for the services and each considers and expressly intends and agrees that the Work Product to be rendered by Respondent shall be a work-made-for-hire. Respondent and Respondent’s employees will have no rights in or ownership of the Work Product or any other property of Agency. Respondent acknowledges and agrees that the Work Product (and all rights therein, including without limitation all intellectual property rights) belongs to and shall be the sole and exclusive property of Agency.