ESBD_532807_1782765311361_RFP 212-26-0731 Exhibit D Agreement.pdf

Agreement OCA Contract No. 212260731

Between

Texas Office of Court Administration and

Contractor

OCA Contract No. 212260731 – Shorthand Reporter and Court Reporter Examinations

Table of Contents

Agreement

1. Introduction

2. Order of Precedence

3. Term

4. Services

5. Performance Standards

6. Contractor Personnel

7. Contractor Responsibilities

8. Audit

9. Fees

10. Payment

11. Confidential Information

12. Work Product; Other Materials

13. Representations, Warranties and Covenants

14. Insurance and Risk of Loss

15. Indemnities

16. Liability

17. Dispute Resolution

18. Termination

19. General

Exhibit 1 – Definitions Exhibit 2 – Statement of Work

1. Standards and Requirements

2. Contract Terminology

3. Service Deliverables

4. Qualifications

5. Subcontractors

6. Performance Tracking

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

WHEREAS, OCA has a mission to provide resources and administrative support to the Judicial Branch Certification Commission (“JBCC”) for the efficient, valid and fair examination to test the competence of Applicants to become certified as shorthand reporters or court reporters;

WHEREAS, the current contract for the development and administration of the Shorthand Reporters Certification Examination expires August 31, 2026;

WHEREAS, OCA desires a statistically valid, fair and accessible Examination in order to certify shorthand reporters to provide reporting services for the court system;

WHEREAS, OCA desires to outsource the development, administration, and grading of the Shorthand Reporter Certification Examination;

WHEREAS, OCA desires to engage the Contractor to provide best-in-class services in online and in-person certification examination and increased innovation and improved capabilities at an efficient cost, and leverage technology to provide Examinees an Examination which produces valid results that accurately gauge the skills and knowledge necessary to competently provide shorthand reporting services;

WHEREAS, in accordance with the Laws of the State, OCA issued the “Request for

Proposals” on the Texas Comptroller of Public Accounts’ Electronic State Business Daily website, Request for Proposal No. 212260731 “Request for Proposals to Perform Examination Services” (the “RFP”);

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

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

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

1. Introduction

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

1.2 Contractor’s Experience and Qualifications. Contractor represents and warrants that it is an established provider of the Services as awarded under this Agreement and has the skills, qualifications, expertise, financial resources and experience necessary to provide the Services (including the examination materials, psychometric and technical expertise, and other deliverables) described in this Agreement in accordance with the terms herein. At all times during the Term, Contractor may not be an owner, officer, or employee of a school or institution engaged in teaching shorthand reporting skills or be related within the second degree of consanguinity or affinity to an owner, officer, or employee of such a school or institution.

1.3 Definitions. Capitalized terms used in this Agreement shall have the meanings set forth in Exhibit 1, unless otherwise defined in the context of the provision. Words having well‐known technical or trade meanings, or have a commonly understood meaning by reasonable people, but not otherwise defined in this Agreement shall be accorded such meaning unless expressly defined otherwise herein.

1.4 Other Terms.

a. Construction. The terms defined in this Agreement shall, where appropriate in the context so written, be deemed to apply to the plural as well as the singular of such terms. Unless otherwise expressly stated, the words “herein,” “hereof,” and

“hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section, Subsection, Exhibit, Attachment or other subdivision. Article, Section, Subsection, Exhibit and Attachment references refer to the articles, sections and subsections of, and exhibits and attachments to, this Agreement. The words “include” and “including” shall not be construed as terms of limitation. Unless otherwise modified, the words “day,” “month,” and “year” mean, respectively, calendar day, calendar month and calendar year. The words “notice” and “notification” and their derivatives mean notice or notification in writing. All references to this Agreement shall include the Exhibits, Statement of Work, Accepted Change Requests, and any other Attachments to this Agreement unless otherwise provided.

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

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

2. Order of Precedence Unless otherwise expressly stated in the Statement of Work, in the event of a conflict between or among the various documents comprising the Agreement, the following order of precedence shall control:

(a) Any amendment(s) to this Agreement;

(b) This Agreement;

(c) The Statement of Work attached and incorporated into this Agreement; and

(d) The executed purchase order.

3. Term The Agreement term shall begin on September 1, 2026 or on the date of the purchase order, whichever is later, and shall end August 31, 2028, unless this Agreement is terminated earlier as provided herein, in which case the term of this Agreement shall end at 11:59:59 p.m., Central Standard Time, on the effective date of such termination. OCA may elect at its sole option to renew the Agreement by up to two terms of one year each.

4. Services

4.1 Examination Development Services.

a. Examination Development. Commencing as of the Effective Date, Contractor shall perform the Examination Development Services in accordance with the Statement of Work; attached hereto as Exhibit 2 and may be amended, modified, or supplemented in writing by the Contractor Agency Contact and the OCA Project Manager, and in accordance with Section 19.7. OCA shall not incur any charges, fees or expenses payable to Contractor or any third party engaged by Contractor in connection with the execution of the Examination Development Services.

b. Examination Development Plan. Within thirty (30) days following the Effective Date, Contractor shall report to OCA the projected times for finalized Examination content during the Term. Upon OCA’s Acceptance, the Schedule shall automatically be incorporated into this Agreement. The Schedule may thereafter be amended as agreed by the Parties in writing. If Contractor will provide the Examination on‐line, either on specific dates or as an ongoing continuous Service, Contractor shall report that fact, along with any anticipated Scheduled Downtime, to OCA.

c. Performance. Contractor shall perform Development Services in a manner that shall not materially (i) disrupt or have an adverse impact on Examinees sitting for an Examination, (ii) degrade the administration, online delivery, or validity of the Examination, or (iii) disrupt or interfere with the ability of Examinees to obtain the full benefit of the security, scoring, receipt of scores, protesting Examination results, or reasonable accommodations or rescheduling of Examinations.

d. Notification by Contractor. Upon receiving any information indicating that Contractor may not be able to perform its responsibilities or obligations under the Statement of Work or any other Problem arises or is likely to arise in connection with the Development Services Contractor shall immediately notify OCA in writing and, unless otherwise requested by OCA, prepare a Corrective Action Plan.

e. Failure to Perform.

i. The Examination Development Services and the activities and

Deliverables associated therewith shall not be deemed to be complete until OCA’s Acceptance thereof.

ii. In the event that, in OCA’s sole discretion, Contractor has failed to perform any Services in accordance with the Statement of Work or timely deliver any Examination Development Services in accordance with the Schedule (a “Failure Event”), then, in addition to any other remedies OCA may have at law or under this Agreement, if requested by OCA, the Contractor’s designated Agency Contact shall promptly (but not more than one (1) Business Day from OCA’s request) meet with the JBCC Director, or their designee, to attempt to resolve the Examination Development Failure Event. If the Contractor Program Manager and JBCC Director, or their designee, are unable to resolve the Failure Event to the satisfaction of OCA within five (5) Business Days following such request by OCA, then the Parties shall resolve the Failure Event in compliance with Article 17 of this Agreement, relating to dispute resolution.

f. Suspension or Delay of Services. Upon written notice to Contractor, OCA may, in its sole discretion, suspend or delay the performance of the Examination Development or Administration Services. OCA shall reimburse Contractor for any costs incurred in connection with any such suspension or delay, provided that Contractor obtains OCA’s approval prior to incurring such costs and uses commercially reasonable efforts to minimize such costs. OCA shall work in good faith with Contractor to minimize the period of any such suspension or delay.

4.2 Examination Administration Services.

a. General. Commencing on the Commencement Date, Contractor shall deliver to OCA a schedule of times and places for the administration of the Examination which, upon approval by OCA, shall become a part of the Agreement. Contractor shall provide the Examination Administration Services, including Post Examination Services, to OCA in accordance with this Agreement and the Statement of Work. The Examination schedule and the Statement of Work may be amended, modified, or supplemented in writing by the Contractor Program Manager and the JBCC Director or other designee, and in accordance with Section 19.7.

b. Included Services. The following are deemed to be included in the Examination Administration Services: (i) services, functions, responsibilities and tasks that are reasonably required for the administration of the Examination, grading of the

Examination, resolving protests, analysis, re‐grade, and related Post Examination services, arising from the administration of the Examination, and proper performance necessary to perform the expressly described Services; (ii) communication and coordination of efforts by and among Contractor Personnel and Subcontractors (if any) as required to perform such Services and any related functions, responsibilities and tasks pursuant to the Statement of Work; and (iii) the related services, functions and responsibilities that are routinely performed in the development, administration, grading, reporting results, and managing protests of a professional examination.

c. Required Resources. Contractor shall possess requisite technical knowledge, expertise, and other resources necessary to provide the Examination Administration Services.

d. Notification by Contractor. Upon receiving any information indicating that Contractor may not be able to perform its responsibilities or obligations under the Examination Administration Services, or any other Problem arises or is likely to arise in connection with the Examination Administration Services, Contractor shall immediately notify OCA in writing and, unless otherwise requested by OCA, prepare a Corrective Action Plan.

4.3 Termination Assistance Services. Within one calendar day after termination of this Contract, or at OCA’s request, Contractor shall deliver to OCA all completed, or partially completed, work and any and all documentation or other products and results of these services. Failure to timely deliver such work or any and all documentation or other products and results of the services shall be considered a material breach of the Contract.

4.4 Acceptance of Deliverables. OCA shall determine, in its reasonable judgment, pursuant to the provisions of the Statement of Work, when a Deliverable shall be Accepted. Unless otherwise requested by OCA, each Deliverable shall be provided by Contractor and subject to OCA’s Acceptance. Upon OCA’s Acceptance of a Deliverable, OCA shall inform Contractor in writing of such Acceptance. If OCA does not Accept a Deliverable, OCA shall provide Contractor a notice of Noncompliance as described below. If OCA does not Accept or deliver a notice of Noncompliance to Contractor by the end of the Acceptance Review Period, Contractor shall provide OCA with written notice that the Acceptance Review Period has expired and may deliver a written request for a meeting to take place within two

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

a. Noncompliance. If OCA detects any Noncompliance during the Acceptance Review Period, OCA shall promptly notify Contractor in writing and reasonably specify the nature of the failure or deficiency giving rise to such Noncompliance.

Promptly after receiving such notice from OCA (but not more than two (2) days from Contractor’s receipt of such notice), and at no charge to OCA, Contractor shall correct any such Noncompliance. Following correction of any such Noncompliance, Contractor shall resubmit the Deliverable to OCA for Acceptance and the applicable Acceptance Review Period shall begin again.

b. Failure to Cure a Noncompliance. If Contractor does not correct all Noncompliance of a Deliverable within a reasonable period of time following resubmission and receipt of a second notice of such Noncompliance (not to exceed five (5) Business Days), then OCA may, in its sole discretion and upon written notification to Contractor, (A) provide Contractor an additional cure period to fix the Noncompliance; (B) conditionally Accept the Deliverable and require Contractor to develop a remediation plan, subject to OCA’s approval of such plan, whereby Contractor shall design and implement a workaround solution that mitigates the Noncompliance; (C) reject the Deliverable entirely; or

(D) correct the Noncompliance itself or hire a third party to correct the Noncompliance at Contractor’s reasonable expense. If OCA elects options (A) or

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

c. Previously Accepted Items. In the event any modification or rework of a previously Accepted Deliverable or other Deliverable is required for the Acceptance of a subsequent deliverable, then Contractor shall perform such modification or rework at no Charge to OCA. Furthermore, in the event of discovery of a latent defect in a previously Accepted Deliverable, where such latent defect would have qualified as Noncompliance at the time of Acceptance, upon notification by OCA, Contractor shall, at no additional Charge, repair or replace or otherwise correct the Noncompliance to the level of performance specified in the Agreement.

4.5 Knowledge Transfer. During the period when Contractor provides the Termination

Assistance Services or at any time during the Term, Contractor shall use its best efforts to communicate and transfer the practical skill, knowledge and expertise to OCA after the Term in relation to the delivery of the Services, including the knowledge necessary for OCA or the new contractor to perform the Services.

Contractor shall accomplish such knowledge transfer, as appropriate, by providing interviews to OCA or the new contractor as well as providing information, records and documents related to the provision of the Services. The information to be provided to affect the obligations of such knowledge transfer includes (i) copies of Examination procedures and Examination development manuals, (ii) relevant system, Software and/or hardware information relating to online Examination, (iii) information regarding work in progress and associated unresolved faults in progress, (iv) information requirements necessary to support a future procurement of Services, and (v) any other information relevant to such knowledge transfer.

Contractor shall immediately (within one (1) Business Day) notify OCA of any lack of cooperation on the part of any third party that impedes or hinders Contractor’s efforts to comply with this obligation.

5. Performance Standards

5.1 Performance. Contractor will perform the Services under the Statement of Work in accordance with accepted industry standards of top tier providers of examination services. Contractor shall provide OCA with detailed Reports on Contractor’s compliance with the Statement of Work monthly or as otherwise agreed by the Parties. In addition, any changes to the Statement of Work are subject to OCA’s prior written approval.

5.2 Examination Fees Reimbursements. Contractor recognizes that Contractor is receiving Examination Fees to deliver the Services in a manner in which Examinees may take the Examination without distraction or other impediments to performance or cheating or other conduct which causes or creates the appearance of a lack of integrity in the content or administration of the Examination. If Contractor fails to provide such Service at a reasonably appropriate level, then, in addition to other remedies available to OCA, Contractor shall provide the Examination without charge to any affected Examinee and shall reimburse the Examinee and OCA any costs arising from Contractor’s failure to meet the agreed upon level of Service.

Under no circumstances shall reimbursement of fees and costs be construed as OCA’s sole or exclusive remedy for any such.

6. Contractor Personnel

6.1 Contractor Program Manager. Contractor shall designate a Contractor Program

Manager. The Contractor Program Manager shall (i) be a full‐time employee of Contractor, (ii) devote sufficient time and effort to managing the Examination Development Services and other Services under the Statement of Work, (iii) remain in this position until Contractor completes all Services in accordance with the Statement of Work (except as the result of voluntary resignation or involuntary termination for cause, illness, disability, or death, or other leave of absence protected by applicable Law (e.g., the Family and Medical Leave Act)), (iv) serve as the single point of accountability, (v) be the single point of contact to whom all OCA communications concerning the Examination Development Services and the Statement of Work may be addressed, (vi) have authority to act on behalf of Contractor in all day‐to‐day matters pertaining to the Examination Development Services and the Statement of Work, and (vii) have day‐to‐day responsibility for ensuring timely delivery of all Deliverables and Services in accordance with the Statement of Work and ensuring customer satisfaction.

6.2 Contractor Personnel Are Not State or OCA Employees. The Parties intend to create an independent contractor relationship and nothing in this Agreement shall operate and be construed as making the State and OCA, on the one hand, and Contractor, on the other hand, partners, joint venturers, principals, joint employers, agents or employees of or with the other. No officer, director, employee, agent, Affiliate of, or contractor or subcontractor retained by, Contractor to perform Services hereunder shall be deemed to be an officer, director, employee, agent, Affiliate, contractor or subcontractor of the State or OCA for any purpose.

6.3 Responsibility for Contractor Personnel.

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

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

c. Contractor agrees that any claim on behalf of any person arising out of employment, alleged employment, agency or subcontracts (including claims of discrimination against Contractor, its officers, or its agents or its

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

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

6.4 Qualifications of Contractor Personnel.

a. Contractor Personnel Verification. Contractor shall be responsible for verifying that all Contractor Personnel (i) are authorized to work in any location in which they are assigned to perform Services, (ii) meet the criteria for Contractor Personnel under this Agreement, and (iii) have not been convicted of or accepted responsibility for a felony or a misdemeanor involving a dishonest or violent act, do not use illegal drugs and are not otherwise disqualified from performing their assigned Services under applicable Laws. Contractor shall maintain, in a reasonably accessible location and format, the documentation reasonably necessary to verify the foregoing, as well as a resume and such other information about the individual as may be reasonably requested by OCA and shall make such documentation available to OCA or auditors upon request.

Contractor shall fully advise OCA as to the facts and circumstances surrounding conviction of a felony criminal offense of Contractor or any of its Contractor Personnel during the Term.

b. E-Verify. Contractor agrees to utilize and will continue to utilize the U.S.

Department of Homeland Security’s E‐Verify system to determine the eligibility of: (A) all persons employed to perform duties within Texas during the Term of the Agreement; and (B) all persons, including Subcontractors, assigned by Contractor to perform work pursuant to the Agreement within the United States of America. Contractor shall require its Subcontractors to comply with the requirements of this Section. Nothing herein is intended to exclude compliance by Contractor and its Subcontractors with all other applicable federal immigration statutes and regulations promulgated pursuant thereto.

7. Contractor Responsibilities

7.1 Reports. In addition to any other reports required by this Agreement, Contractor shall provide OCA with such additional reports as OCA may reasonably identify from time to time to be generated and delivered by Contractor on an ad hoc or periodic basis (all such reports, the “Reports”).

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

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

7.4 Meetings. During the Term and in addition to any meetings provided for in the

Statement of Work, representatives of the Parties shall meet periodically as requested by OCA to discuss matters arising under this Agreement. Each Party shall bear its own costs in connection with the attendance and participation of such Party’s representatives in such meetings.

7.5 Subcontractors.

a. Use of Subcontractors. Contractor shall not subcontract any of its responsibilities under this Agreement without OCA’s prior written approval, which may be withheld in OCA’s sole discretion. Prior to entering into a subcontract with a third party for the Services, Contractor shall (i) deliver to OCA a copy of the proposed subcontract or, at OCA’s reasonable discretion, a detailed description of scope and material terms of the proposed subcontract,

(ii) give OCA reasonable notice of the components of the Services affected, the scope of the proposed subcontract, the identity and qualifications of the proposed Subcontractor and the reasons for subcontracting the work in question, and (iii) obtain OCA’s prior written approval of such Subcontractor.

b. Right to Revoke Approval. OCA may revoke its prior approval of a Subcontractor and direct Contractor to replace any Subcontractor if (i) Contractor fails to obtain the rights set forth in Section 7.5(c) with respect to such Subcontractor, or (ii) in OCA’s discretion, there are other reasonable grounds for removal.

Contractor shall, as soon as possible, remove and replace such Subcontractor subject to Section 7.5(c). Contractor shall continue to perform its obligations under this Agreement, notwithstanding the removal of a Subcontractor. OCA shall have no responsibility for any termination charges or cancellation fees that Contractor may be obligated to pay to a Subcontractor as a result of the removal of such Subcontractor at OCA’s request or the withdrawal or cancellation of the Services then performed by such Subcontractor as permitted under this Agreement.

c. Contractor Responsibility. Notwithstanding anything in this Agreement to the contrary, Contractor shall be and remain responsible and liable for any failure by any Subcontractor or Subcontractor personnel to perform in accordance with this Agreement or to comply with any duties or obligations imposed on Contractor under this Agreement to the same extent as if such failure to perform or comply was committed by Contractor or Contractor Personnel. Without limiting the foregoing, Contractor warrants and covenants that in no event shall any provision of this Agreement, or any right or benefit of OCA provided for under this Agreement, be reduced, limited or otherwise adversely affected (including through any cost or expense, including taxes) as a consequence of the performance of any Services by or through Subcontractors.

8. Audit Contractor shall cooperate with any authorized agents of the State of Texas and shall provide them with prompt access to all of such State’s work as requested.

Contractor’s failure to comply with this Section shall constitute a material breach of the Contract and shall authorize OCA and the State of Texas to immediately assess appropriate damages for such failure. The acceptance of funds by Contractor or any other entity or person directly under the Contract, or indirectly through a subcontract under the Contract, shall constitute acceptance of the authority of the State Auditor, Comptroller or other agency of the State of Texas to conduct an audit or investigation in connection with those funds. Contractor shall ensure that this paragraph concerning the State’s authority to audit funds received indirectly by subcontractors through Contractor and the requirement to cooperate is included in any subcontract it awards. Furthermore, 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.

9. Fees

9.1 General.

a. Payment of Charges. In consideration of Contractor’s performance of the Services, Examinees shall pay the Examination Fees listed in the JBCC fee schedule to Contractor. Contractor shall provide examinations at no cost to Examinees qualified under Texas Occupations Code § 55.009. Contractor may record names and bases of qualification for any such Examinees and request reimbursement from JBCC for waived Examination Fees by invoice.

b. No Additional Charges. Unless expressly set forth in this Agreement, OCA, Applicants, and Examinees shall pay no additional Charges, fees, expenses or other amounts to Contractor for the provision of Services, including the costs or expenses of a Subcontractor. Contractor may not require an examinee to pay an additional fee, or contract for any additional services as prerequisite for taking the examination. Any costs incurred by Contractor prior to the Effective Date are not to be separately paid or reimbursed by OCA or its Applicants or Examinees.

Contractor may charge only the Examination Fee as a prerequisite to taking the Examination.

c. Incidental Expenses. Contractor acknowledges that, except as expressly provided otherwise in this Agreement, expenses that Contractor incurs in performing the Services (including management, travel and lodging, document reproduction and shipping, equipment and Software, and long‐distance telephone) are covered by the Examination Fees. Accordingly, such Contractor expenses shall not be separately paid or reimbursed by OCA or its Applicants or Examinees.

d. Efforts to Minimize. Contractor shall continually seek to identify methods of reducing and minimizing the total cost of providing the Services throughout the Term. Contractor shall notify OCA of such methods and the estimated potential savings associated with each such method for purpose of ascertaining and continually updating the JBCC fee schedule.

9.2 Taxes. Pursuant to Texas Tax Code § 151.309, OCA is exempt from the assessment of State taxes and, pursuant to Texas Administrative Code, Title 34, Part 1, Chapter 3, Subchapter O, §3.322(c)(4), is not required to present an exemption certificate with respect to State sales tax. In addition, OCA is exempt from federal taxes pursuant to 26 U.S.C. §§ 4253(i) and (j). Without limiting the generality of the foregoing, Contractor’s responsibilities in connection with taxes arising under or in connection with this Agreement include the following obligations:

a. Income Taxes. Contractor shall be responsible for its own Income Taxes.

b. Sales, Use and Property Taxes. Contractor shall be responsible for any sales, lease, use, personal property, real or improved property, stamp, duty or other such taxes on Equipment, Materials or property it owns or leases or licenses from a third party, including any lease or license assigned pursuant to this Agreement.

c. Taxes on Goods or Services Used by Contractor. Contractor shall be responsible for all sales, service, value‐added, lease, use, personal property, excise, consumption, and other taxes and duties payable by Contractor on any goods or services used or consumed by Contractor in providing the Services where the tax is imposed on Contractor’s acquisition or use of such goods or services and the amount of tax is measured by Contractor’s costs in acquiring or procuring such goods or services.

d. Tax Filings. Contractor represents, warrants and covenants that it shall file appropriate tax returns, and pay applicable taxes owed arising from or related to the provision of the Services in all applicable jurisdictions. At OCA’s request, Contractor shall provide OCA with (i) written confirmation that Contractor has filed all required tax forms and returns and has collected and remitted all applicable amounts, and (ii) such other information pertaining to applicable Taxes as OCA may reasonably request.

10. Payment

10.1 Payment of Examination Fees. Applicants file applications for certification with the JBCC of the OCA. After determining the Applicants who are eligible to take the Shorthand Reporting Certification Examination, OCA will provide a list of Applicant names to Contractor. Contractor shall collect Examination Fees directly from Applicants. Under no circumstances is OCA liable for any Examination Fee or any other cost of Examination development, administration, grading, protesting or any other cost of any operation or services related to the Services.

10.2 Reimbursements. To the extent a fee reimbursement may be due to an Applicant or Examinee pursuant to this Agreement, Contractor shall promptly, no later than 30 days after receipt of notice, pay the reimbursement then due and owing.

10.3 No Waiver. Neither the failure to dispute any Examination Fee or the conditions or quality of Services prior to payment nor upon taking the Examination shall constitute, operate, or be construed as a waiver of any right Applicant, Examinee, or OCA may otherwise have to dispute any Charge or amount or recover reimbursement or re‐examination at no Charge.

10.4 Prompt Resolution. In the event an Applicant, Examinee, or OCA initiates a dispute related to an Examination Fee or an Examination, Contractor shall promptly (but not more than two (2) Business Days from the time OCA initiated such dispute) respond to the issue raised in such dispute, which response shall include a written explanation of the circumstances of the administration of the Examination, the content of the Examination or any other matters that are the subject of such dispute, as well as any supporting documentation necessary to support Contractor’s position. If, within ten (10) days of the date on which OCA notifies Contractor of the dispute, Contractor has either (i) failed to respond to OCA with sufficient details or (ii) failed to provide documentation or other evidence as to the validity of the Fees, then such dispute will be deemed resolved in favor of the Applicant, Examinee, or OCA, and Contractor shall reimburse the disputed Examination Fee or provide an additional Examination at no charge, or provide any other remedy as appropriate.

11. Confidential Information

11.1 Confidentiality.

a. Confidential Information. Contractor acknowledges that it will have access to and possession of information regarding the identity, credit card information, scores and analysis of performance on the Examination regarding Applicants and Examinees and may have possession of information regarding accommodations for Applicants and Examinees which is not generally available to the public, subject to the applicability of Rule 12 of the Rules of Judicial Administration and other applicable Law. Contractor also acknowledges that the content of Examinations must remain confidential in order to maintain the integrity of the Examination process.

b. Disclosure of Confidential Information.

i. Each Receiving Party (i) shall hold Confidential Information received from a Disclosing Party in confidence and shall use such Confidential Information only for the purposes of fulfilling its obligations or exercising its rights under this Agreement and for no other purposes, (ii) shall follow all applicable security requirements, protocols, and procedures for accessing and handling such Confidential Information, and (iii) shall not disclose, provide, disseminate or otherwise make available any Confidential Information of the Disclosing Party to any third party without the express written permission of the Disclosing Party, unless expressly permitted elsewhere in this Agreement. Each Receiving Party shall use at least the same degree of care to prevent disclosure, dissemination, and misuse of the Disclosing Party’s Confidential Information to third parties as the Receiving Party employs to avoid unauthorized disclosure, publication, dissemination, destruction, loss or alteration of its own information (or information of its customers) of a similar nature, but not less than reasonable care.

ii. The Receiving Party may disclose Confidential Information of the Disclosing Party to its employees, directors, attorneys, financial advisors, contractors and agents (including State auditors in the case of OCA) provided that (i) such person or Entity has a need to know the Confidential Information for purposes of performing his or her obligations under or with respect to this Agreement or as otherwise naturally occurs in such person’s scope of responsibility, (ii) such disclosure is made pursuant to an obligation of confidentiality upon such person or Entity that is no less stringent than that set forth in this Section 11.1, and (iii) such disclosure is not in violation of Law or applicable OCA Standards.

The Receiving Party assumes full responsibility for the acts or omissions of any person or Entity to whom it discloses Confidential Information of the Disclosing Party regarding their use of such Confidential Information and must take commercially reasonable measures to protect the Confidential Information from disclosure or use in contravention of this Agreement.

iii. The Receiving Party may disclose Confidential Information of the Disclosing Party as required to satisfy any legal requirement of a competent government body after notice and consultation with OCA in accordance with the Rule 12 procedures. Promptly upon receiving any such request (but not more than two (2) days from receipt of such request), the Receiving Party, to the extent it may legally do so, gives notice to the Disclosing Party of the Confidential Information to be disclosed in order that the Disclosing Party may interpose an objection to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information. The Receiving Party shall use reasonable efforts to cooperate with the Disclosing Party in its efforts to seek a protective order or other appropriate remedy or, in the event such protective order or other remedy is not obtained, to obtain assurance that confidential treatment shall be accorded such Confidential Information.

iv. Unless expressly permitted by this Agreement, Contractor is not permitted to (i) make or use any copies of the Confidential Information except as expressly contemplated by this Agreement, (ii) possess or acquire any right in the Confidential Information, (iii) sell, assign, transfer, lease, encumber or otherwise dispose of or disclose the Confidential Information to third parties or commercially exploit, or permit a third party to commercially exploit, such information, or (iv) refuse for any reason (including a default or material breach of this Agreement) to promptly provide Confidential Information (including any copies thereof) to the Disclosing Party or OCA if requested to do so.

v. Contractor will notify JBCC within twenty‐four (24) hours of receipt of any third‐party requests for information provided by JBCC or otherwise arising from performance under the Agreement. Each Party shall take all necessary steps to cause its employees, contractors, and subcontractors to comply with the provisions of Section 11.

c. Exclusions. Notwithstanding the above, Section 11.1(b) shall not apply to any particular information which the Receiving Party can demonstrate (i) is, at the time of disclosure to it, generally available to the public other than through a breach of the Receiving Party’s or a third party’s confidentiality obligations; (ii) after disclosure to it, is published by the Disclosing Party or otherwise becomes generally available to the public other than through a breach of the Receiving Party’s or a third party’s confidentiality obligations or through a third party or a party affiliated with the Receiving Party who obtained the information from the Receiving Party; (iii) was lawfully in the possession of the Receiving Party immediately prior to the time of disclosure to it by Disclosing Party; (iv) is received from a third party that is not restricted from disclosing such information by law, contract, fiduciary duty, or otherwise; or (v) is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information.

d. Loss of Confidential Information. Each Party shall (i) immediately notify the other Party of any possession, use, knowledge, disclosure, or loss of such other Party’s Confidential Information in contravention of this Agreement, (ii) promptly furnish to the other Party all known details and assist such other Party in investigating and/or preventing the reoccurrence of such possession, use, knowledge, disclosure, or loss, (iii) cooperate with the other Party in any investigation or litigation deemed necessary by such other Party to protect its rights, and (iv) promptly use appropriate efforts to prevent further possession, use, knowledge, disclosure, or loss of Confidential Information in contravention of this Agreement. Each Party shall bear any costs it incurs in complying with this Section.

e. No Implied Rights. Nothing contained in this Section shall be construed as obligating a Party to disclose its Confidential Information to the other Party, an Applicant, or an Examinee, or as granting to or conferring on a Party, expressly or impliedly, any rights or license to any Confidential Information of the other Party, or an Applicant, or Examinee.

f. Return or Destruction of Confidential Information. Each Party shall securely store Confidential Information in its possession until such Confidential Information is returned or destroyed as described in this Subsection. Except as limited by applicable Laws and as provided below with respect to Contract Records, each Party shall destroy all other documentation in any medium that contains, refers to or relates to the other Party’s, or an Applicant’s or Examinee’s Confidential Information and any copies thereof in such Party’s control or possession (or the portion of such Confidential Information specified by the other Party) within fifteen (15) Business Days of the expiration or termination of this Agreement and completion of each Party’s obligations hereunder, including, with respect to Contractor, all periods of Termination Assistance Services requested by OCA. Upon written request, the Party returning or destroying Confidential Information of the other Party or an Applicant or Examinee shall deliver to the other Party written certification of its compliance with this paragraph signed by an authorized representative of such Party. Notwithstanding the foregoing, either Party may retain one copy of the other Party’s Confidential Information, other than Confidential Information of an Applicant or Examinee, in its legal department as and to the extent required to comply with applicable Laws or enforce its rights under this Agreement; provided that such Confidential Information shall be returned or destroyed in accordance with this provision upon the expiration of the period specified in the applicable Law, the expiration of the applicable statute of limitations or the final resolution of any pending dispute, as applicable. Contract Records shall be retained by Contractor for the duration of the Audit Period unless and to the extent Contractor is directed by OCA to deliver such Contract Records to OCA prior to the expiration of the Audit Period. In no event shall a party withhold any Confidential Information of the other party as a means of resolving any dispute.

g. Transfer of OCA Confidential Information. Contractor shall not transfer Confidential Information of OCA or an Applicant or Examinee to any other locations, nor change the locations for storage and processing of such Confidential Information, except with the express written consent of OCA, which OCA may withhold in its sole discretion.

h. Contractor Personnel. Contractor shall take appropriate action to cause any Contractor Personnel who have access to Applicant or candidate Confidential Information pursuant to this Agreement to be (i) advised of, and comply with, the terms and conditions of this Section; and (ii) trained regarding their handling of such Confidential Information. Contractor shall be responsible for any failure of Contractor Personnel to comply with the terms and conditions regarding Confidential Information set forth in this Section. Contractor agrees to maintain a disciplinary process to address any unauthorized access, use or disclosure of Applicant or Examinee Confidential Information by any Contractor Personnel.

11.2 Cardholder Data. To the extent applicable to the Services, Contractor shall comply with the Payment Card Industry Data Security Standard with respect to Cardholder Data as defined therein.

11.3 Security Incident.

a. Procedures. In the event Contractor discovers or is notified of, or should have known of, a Security Incident or potential Security Incident, Contractor shall immediately notify OCA of such Security Incident or potential Security Incident.

Following such notice, Contractor shall fully cooperate in OCA’s handling of such Security Incident or potential Security Incident and, at Contractor’s own cost and expense, shall (i) investigate such Security Incident or potential Security Incident, facilitating interviews with Contractor Personnel and others involved in the matter, and making available all relevant records, logs, files, data reporting, and other materials required to comply with applicable Laws, regulations, industry standards or as otherwise reasonably required by OCA, (ii) perform a risk assessment, Root Cause Analysis and Corrective Action Plan, (iii) provide a detailed written report to OCA of such risk assessment, Root Cause Analysis and Corrective Action Plan, (iv) upon OCA’s approval, remediate the effects of such Security Incident or potential Security Incident as soon as practicable or assist in the coordination of such remediation if Contractor does not have responsibility for the matters which are the source of the breach or potential breach, (v) provide OCA with reasonable assurances that such Security Incident or potential Security Incident shall not recur, (vi) cooperate with OCA in providing any notices regarding impermissible disclosures caused by such Security Incident which OCA deems appropriate, and (vii) cooperate in any litigation, investigation, or other action deemed necessary by OCA to protect its rights relating to the use, disclosure, protection and maintenance of the examination. Following any Security Incident, Contractor shall continuously use its best efforts to prevent a recurrence of any such Security Incident.

b. Security Incident Involving Applicant and Examinee Confidential Information. To the extent a Security Incident involves Applicant or Examinee Confidential Information and is attributable to a breach by Contractor or…