ESBD_556289_1788551635943_Appendix A - OpenMarket_Ts_and_Cs.pdf

TEXAS CYBER COMMAND

Attachment A

Standard Terms and Conditions

Open Market Procurements

Rev. Jan 2025 Appendix A Standard Terms and Conditions – Open Market

Contents Contents

1 CONTRACT SCOPE

2 DEFINITIONS

2.1 Compliance Check

2.2 Contract

2.3 Business day

2.4 Effective Date

2.5 Invoice

2.6 Federal

2.7 Purchase Order

2.8 State

2.9 Statement of Work (SOW)

2.10 Subcontracting Plan

2.11 Vendor

2.12 TXCC

2.13 Third-Party Provider

3 GENERAL PROVISIONS

3.1 Entire Agreement

3.2 Modification of Contract Terms and Amendments

3.3 Invalid Term or Condition

3.4 Assignment

3.5 Survival

3.6 Choice of Law

3.7 Limitation of Authority

3.8 Proof of Financial Stability

3.9 Data Location

3.10 Independent Contractor

4 INTELLECTUAL PROPERTY MATTERS

4.1 Intellectual Property Matters Definitions

4.1.1 “Work Product”

4.1.2 “Intellectual Property Rights”

4.1.3 “Third-Party IP”

4.1.4 “Vendor IP”

4.2 Ownership

4.3 Further Actions

4.4 Waiver of Moral Rights

4.5 Confidentiality

4.6 Injunctive Relief

4.7 Return of Materials Pertaining to Work Product

4.8 Vendor License to Use

4.9 Third-Party Underlying and Derivative Works

4.10 Agreement with Third-Party Providers

4.11 License to TXCC

4.12 Vendor Development Rights

5 TERMS AND CONDITIONS APPLICABLE TO STATE AGENCY PURCHASES ONLY

6 USE OF ACCESS DATA PROHIBITED

7 PROMOTION AND USE OF LOGOS

8 PURCHASE ORDERS, INVOICES, AND PAYMENTS

8.1 Invoices

8.2 Payments

8.3 Tax-Exempt

8.4 Travel Expense Reimbursement

9 CONTRACT ADMINISTRATION

9.1 Historically Underutilized Businesses Subcontract Reports

9.2 Records and Audit

10 VENDOR RESPONSIBILITIES

10.1 Indemnification

10.1.1Indemnities by Vendor

10.1.2Infringements

10.2 Property Damage

10.3 Taxes/Worker’s Compensation/Unemployment Insurance

10.4 Vendor Certifications

10.5 Ability to Conduct Business in Texas

10.6 Equal Opportunity Compliance

10.7 Use of Subcontractors

10.8 Responsibility for Actions

10.9 Confidentiality

10.10 Security of Premises, Equipment, Data and Personnel

10.11 Background and Criminal History Investigation

10.12 Limitation of Liability

10.13 Overcharges

10.14 Prohibited Conduct

10.15 Use of State Property

10.16 Immigration

10.17 Product and Services Substitutions

10.18 Secure Erasure of Hard Disk Managed Services Products and Services

10.19 Deceptive Trade Practices; Unfair Business Practices

10.20 Drug Free Workplace Policy

10.21 Public Information

10.22 Vendor Reporting Requirements

10.23 Cybersecurity Training

11 CONTRACT ENFORCEMENT

11.1 Enforcement of Contract and Dispute Resolution

11.2 Termination

11.2.1Termination for Non-Appropriation

11.2.2Absolute Right

11.2.3Termination for Convenience

11.2.4Termination for Cause

11.2.5Immediate Termination or Suspension

11.3 Force Majeure

12 NON-SOLICITATION OF TXCC EMPLOYEES

13 WARRANTY

14 NOTIFICATION

14.1 Notices

14.2 Handling of Written Complaints

15 CAPTIONS

Appendix A Standard Terms and Conditions – Open Market Page 5 Rev. Mar 2026

The following terms and conditions must govern the conduct of TXCC and Vendor during the term of the Contract.

1 CONTRACT SCOPE

Vendor must provide the products and services specified in the Contract. Terms used in this document will have the meanings set forth below in Section 2 Definitions.

2 DEFINITIONS

2.1 Compliance Check

Refers to an audit of Vendor’s compliance with the Contract, which may be performed by a third-party auditor, TXCC Internal Audit department, TXCC contract management staff, or their designees.

2.2 Contract

Refers to the agreement between TXCC and Vendor into which this Appendix A is incorporated.

2.3 Business day

Refers to a period between 8 AM and 5 PM, Monday through Friday, except for State and Federal holidays. If the Contract calls for performance on a day that is not a business day, then performance is intended to occur on the next business day.

2.4 Effective Date

Refers to the effective date of the Contract as set forth therein.

2.5 Invoice

Refers to an instrument submitted by Vendor for payment of products or services.

2.6 Federal

Refers to the federal government of the United States of America.

2.7 Purchase Order

Refers to a fiscal form or format, contract with Vendor, or other document used by TXCC to authorize the purchase of products or services from Vendor under the Contract, including a formal written purchase order, procurement card, electronic purchase order, or another authorized instrument.

2.8 State

Refers to the State of Texas.

2.9 Statement of Work (SOW)

Refers to a document entered into between TXCC and Vendor describing a specific set of

Appendix A Standard Terms and Conditions – Open Market Page 6 activities or deliverables, which may include Work Product and Intellectual Property Rights, that Vendor is to provide TXCC, issued pursuant to the Contract.

2.10 Subcontracting Plan

Refers to Vendor’s Historically Underutilized Business Subcontracting Plan.

2.11 Vendor

Refers to the individual, business entity, or organization at any stage in the procurement or contracting process (prior to response, during response, and after contract award).

2.12 TXCC

Refers to the Texas Cyber Command.

2.13 Third-Party Provider

Refers to an agent, affiliate, subcontractor, vendor, reseller, manufacturer, publisher, distributor, order fulfiller or other person or entity designated or directed by Vendor to provide products or services to TXCC in performance of, related to, or in support of the Contract.

3 GENERAL PROVISIONS

3.1 Entire Agreement

The Contract, Appendices, and Exhibits constitute the entire agreement between TXCC and Vendor. No statement, promise, condition, understanding, inducement, or representation, oral or written, expressed or implied, which is not contained in the Contract, Appendices, or its Exhibits will be binding or valid.

3.2 Modification of Contract Terms and Amendments

A. The terms and conditions of the Contract will govern all transactions by TXCC and Vendor under the Contract. The Contract may only be modified or amended upon mutual written agreement of TXCC and Vendor.

B. TXCC may amend the Contract upon 30 calendar days written notice to Vendor without the need for Vendor’s written consent: i) as necessary to satisfy a regulatory requirement imposed upon TXCC by a governing body with the appropriate authority, or ii) as necessary to satisfy a procedural change due to TXCC system upgrades or additions.

3.3 Invalid Term or Condition

A. To the extent any term or condition in the Contract conflicts with the applicable Texas and United States law or regulation, such Contract term or condition is void and unenforceable. By executing a Contract which contains the conflicting term or condition, TXCC makes no representations or warranties regarding the enforceability of such term

Appendix A Standard Terms and Conditions – Open Market Page 7 or condition, and TXCC does not waive the applicable Texas and United States law or regulation which conflicts with the Contract term or condition.

B. If one or more term or condition in the Contract, or the application of any term or condition to any party or circumstance, is held invalid, unenforceable, or illegal in any respect by a final judgment or order of the State Office of Administrative Hearings or a court of competent jurisdiction, the remainder of the Contract and the application of the term or condition to other parties or circumstances will remain valid and in full force and effect.

3.4 Assignment

A. TXCC may assign the Contract without prior written approval to: i) a successor in interest (another State agency as designated by the Texas Legislature), or ii) as necessary to satisfy a regulatory requirement imposed upon a party by a governing body with the appropriate authority.

B. Vendor must not assign its rights under the Contract or delegate the performance of its duties under the Contract without prior written approval from the TXCC. Any attempted assignment in violation of this provision is void and without effect.

3.5 Survival

Rights and obligations under the Contract which by their nature should survive including all payment obligations invoiced prior to the termination or expiration hereof, obligations of confidentiality, and indemnification obligations will remain in effect.

3.6 Choice of Law

The Contract will be governed by and construed in accordance with the laws of the State of Texas, without regard to the conflicts of law provisions. The exclusive venue of any suit arising under the Contract is fixed in the state courts of Travis County, Texas. Regardless of any provision anywhere in the Contract to the contrary, TXCC does not waive any defense or immunity whatsoever in any manner.

3.7 Limitation of Authority

Vendor must have no authority to act for or on behalf of the Texas Cyber Command or the State except as expressly provided for in the Contract; no other authority, power, or use is granted or implied. Vendor may not incur any debts, obligations, expenses, or liabilities of any kind on behalf of the State or TXCC.

3.8 Proof of Financial Stability

TXCC may require Vendor to provide proof of financial stability prior to or at any time during the Contract term.

Appendix A Standard Terms and Conditions – Open Market Page 8

3.9 Data Location

Regardless of any other provision of the Contract or its incorporated or referenced documents, all of the data for TXCC will remain, and be stored, processed, accessed, viewed, transmitted, and received, always and exclusively within the contiguous United States.

3.10 Independent Contractor

VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF THE CONTRACT, IT IS

FURNISHING SERVICES IN THE CAPACITY OF AN INDEPENDENT CONTRACTOR AND THAT

VENDOR IS NOT AN EMPLOYEE OF TXCC, OR THE STATE OF TEXAS.

4 INTELLECTUAL PROPERTY MATTERS

4.1 Intellectual Property Matters Definitions

4.1.1 “Work Product” Means all deliverables produced by Vendor for TXCC under the Contract or a Statement of Work issued pursuant to the Contract, including all tangible or intangible items or things that have been or will be prepared, created, developed, invented, or conceived at any time following the Effective Date, including any:

(i) works of authorship (such as manuals, instructions, printed material, graphics, artwork, images, illustrations, photographs, computer programs, computer software, scripts, configurations, object code, source code or other programming code, HTML code, flow charts, notes, outlines, lists, compilations, manuscripts, writings, pictorial materials, schematics, formulae, processes, algorithms, data, information, multimedia files, text web pages or web sites, other written or machine readable expression of such works fixed in any tangible media, and all other copyrightable works);

(ii) trademarks, service marks, trade dress, trade names, logos, or other indicia of source or origin;

(iii) ideas, designs, concepts, personality rights, methods, processes, techniques, apparatuses, inventions, formulas, discoveries, or improvements, including any patents, trade secrets and know-how;

(iv) domain names;

(v) any copies, and similar or derivative works to any of the foregoing;

(vi) all documentation and materials related to any of the foregoing;

(vii) all other goods, services, or deliverables to be provided to TXCC under the Contract or a Statement of Work; and

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(viii) all Intellectual Property Rights in any of the foregoing, and which are or were created, prepared, developed, invented, or conceived for the use or benefit of TXCC in connection with the Contract or a Statement of Work, or with funds appropriated by or for TXCC or TXCC benefit:

a. by any Vendor personnel or TXCC personnel, or

b. by any TXCC personnel who then became personnel to Vendor or any of its affiliates or subcontractors, where, although creation or reduction-to-practice is completed while the person is affiliated with Vendor or its personnel, any portion of same was created, invented, or conceived by such person while affiliated with

TXCC.

4.1.2 “Intellectual Property Rights” Means the worldwide legal rights or interests, including all United States and foreign patents, copyrights, trademarks, service marks, trade secrets, moral rights, author’s rights, reversionary rights, and all other intellectual property or similar rights, evidenced by or embodied in:

i) any idea, design, concept, personality right, method, process, technique, apparatus, invention, discovery, or improvement, including any patents, trade secrets, and know-how;

ii) any work of authorship, including any copyrights, moral rights, or neighboring rights;

iii) any trademark, service mark, trade dress, trade name, or other indicia of source or origin;

iv) domain name registrations; and

v) any other proprietary or similar rights.

The Intellectual Property Rights of a party include all worldwide legal rights or interests that the party may have acquired by assignment or license with the right to grant sublicenses.

4.1.3 “Third-Party IP” Means the Intellectual Property Rights of any third party that is not a party to the Contract or a Purchase Order or Statement of Work issued under the Contract, and that is not directly or indirectly providing any goods or services to TXCC under the Contract or a Purchase Order or Statement of Work issued under the Contract.

4.1.4 “Vendor IP” Means all tangible or intangible items or things, including the Intellectual Property Rights therein, created or developed by Vendor:

i) prior to providing any services or Work Product to TXCC and prior to receiving any documents, materials, information, or funding from or on behalf of TXCC relating

Appendix A Standard Terms and Conditions – Open Market Page 10 to the services or Work Product, or

ii) after the Effective Date if such tangible or intangible items or things were independently developed by Vendor outside Vendor’s provision of services or Work Product for TXCC hereunder and were not created, prepared, developed, invented, or conceived by any TXCC personnel who then became personnel to Vendor or any of its affiliates or subcontractors, where, although creation or reduction-to-practice is completed while the person is affiliated with Vendor or its personnel, any portion of same was created, invented or conceived by such person while affiliated with TXCC.

4.2 Ownership

As between Vendor and TXCC, the Work Product and Intellectual Property Rights therein are and will be owned exclusively by TXCC, and not Vendor. Vendor specifically agrees that the Work Product will be considered “works made for hire” and that the Work Product will, upon creation, be owned exclusively by TXCC. To the extent that the Work Product, under applicable law, may not be considered works made for hire, Vendor hereby agrees that the Contract effectively transfers, grants, conveys, assigns, and relinquishes exclusively to TXCC all right, title, and interest in and to all ownership rights in the Work Product, and all Intellectual Property Rights in the Work Product, without the necessity of any further consideration, and TXCC will be entitled to obtain and hold in its own name all Intellectual Property Rights in and to the Work Product.

Vendor acknowledges that Vendor and TXCC do not intend Vendor to be a joint author of the Work Product within the meaning of the Copyright Act of 1976. TXCC will have access, during normal business hours (Monday through Friday, 8AM to 5PM) and upon reasonable prior notice to Vendor, to all Vendor materials, premises, and computer files containing the Work Product.

Vendor and TXCC, as appropriate, will cooperate with one another and execute such other documents as may be reasonably appropriate to achieve the objectives herein. No license or other right is granted hereunder to any Third-Party IP, except as may be incorporated in the Work Product by Vendor.

4.3 Further Actions

Vendor, upon request and without further consideration, must perform any acts that may be deemed reasonably necessary or desirable by TXCC to evidence more fully the transfer of ownership and registration of all Intellectual Property Rights in all Work Product to TXCC to the fullest extent possible, including the execution, acknowledgement, and delivery of such further documents in a form determined by TXCC. In the event TXCC will be unable to obtain Vendor’s signature due to the dissolution of Vendor or Vendor’s unreasonable failure to respond to TXCC’s repeated requests for such signature on any document reasonably necessary for any purpose set forth in the foregoing sentence, Vendor hereby irrevocably designates and appoints TXCC and its duly authorized officers and agents as Vendor’s agent and Vendor’s attorney-in-

Appendix A Standard Terms and Conditions – Open Market Page 11 fact to act for and in Vendor’s behalf and stead to execute and file any such document and to do all other lawfully permitted acts to further any such purpose with the same force and effect as if executed and delivered by Vendor, provided, however, that no such grant of right to TXCC is applicable if Vendor fails to execute any document due to a good faith dispute by Vendor with respect to such document. It is understood that such power is coupled with an interest and is therefore irrevocable. TXCC will have the full and sole power to prosecute such applications and to take all other action concerning the Work Product, and Vendor must cooperate, at TXCC’s sole expense, in the preparation and prosecution of all such applications and in any legal actions and proceedings concerning the Work Product.

4.4 Waiver of Moral Rights

Vendor hereby irrevocably and forever waives, and agrees never to assert, any Moral Rights in or to the Work Product which Vendor may now have or which may accrue to Vendor’s benefit under United States or foreign copyright or other laws and any other residual rights and benefits which arise under any other applicable law now in force or hereafter enacted. Vendor acknowledges the receipt of equitable compensation for its assignment and waiver of such Moral Rights. The term “Moral Rights” will mean all rights of paternity or integrity of the Work Product and the right to object to any modification, translation or use of the Work Product, and any similar rights existing under the judicial or statutory law of any country in the world or under any treaty, regardless of whether or not such right is denominated or referred to as a moral right.

4.5 Confidentiality

All documents, information and materials forwarded to Vendor by TXCC for use in and preparation of the Work Product will be deemed the confidential information of TXCC, and subject to the license granted by TXCC to Vendor under the Vendor License to Use section.

Hereunder, Vendor must not use, disclose, or permit any person to use or obtain the Work Product, or any portion thereof, in any manner without the prior written approval of TXCC.

4.6 Injunctive Relief

The Contract is intended to protect TXCC’s proprietary rights pertaining to the Work Product, and the Intellectual Property Rights therein. Any misuse of such rights would cause substantial and irreparable harm to TXCC’s business. Therefore, Vendor acknowledges and stipulates that a court of competent jurisdiction may immediately enjoin any material breach of the intellectual property, use, and confidentiality provisions of the Contract, upon a request by TXCC, without requiring proof of irreparable injury as same should be presumed.

4.7 Return of Materials Pertaining to Work Product

Upon the request of TXCC, but in any event upon termination or expiration of the Contract, or a Statement of Work, Vendor must surrender to TXCC all documents and things pertaining to the

Appendix A Standard Terms and Conditions – Open Market Page 12

Work Product, including drafts, memoranda, notes, records, drawings, manuals, computer software, reports, data, and all other documents or materials (and copies of same) generated or developed by Vendor or furnished by TXCC to Vendor, including all materials embodying the Work Product, any TXCC confidential information, or Intellectual Property Rights in such Work Product, regardless of whether complete or incomplete. This Section is intended to apply to all Work Product as well as to all documents and things furnished to Vendor by TXCC or by anyone else that pertain to the Work Product.

4.8 Vendor License to Use

TXCC hereby grants to Vendor a non-transferable, non-exclusive, royalty-free, fully paid-up license to use any Work Product solely as necessary to provide the services to TXCC. Except as provided in this Section, neither Vendor nor any Subcontractor will have the right to use the Work Product in connection with the provision of services to its other customers without the prior written consent of TXCC, which consent may be withheld in TXCC’s sole discretion.

4.9 Third-Party Underlying and Derivative Works

A. To the extent that any Vendor IP or Third-Party IP are embodied or reflected in the Work Product, or are necessary to provide the services, Vendor hereby grants to TXCC, or must obtain from the applicable third party for TXCC’s benefit, the irrevocable, perpetual, non-exclusive, worldwide, royalty-free right and license, for TXCC’s internal business purposes only, to

i) use, execute, reproduce, display, perform, distribute copies of, and prepare derivative works based upon such Vendor IP or Third-Party IP and any derivative works thereof embodied in or delivered to TXCC in conjunction with the Work Product, and

ii) authorize others to do any of the foregoing. Vendor agrees to notify TXCC on delivery of the Work Product or services if such materials include any Third-Party

IP.

B. On request, Vendor must provide TXCC with documentation indicating a third party’s written approval for Vendor to use any Third-Party IP that may be embodied or reflected in the Work Product.

4.10 Agreement with Third-Party Providers

Vendor agrees that it must have written agreement(s) that are consistent with the provisions hereof related to Work Product and Intellectual Property Rights with any Third-Party Providers, prior to their providing such services or Work Product pursuant to the Contract, and that Vendor must maintain such written agreements at all times during performance of the Contract, which are sufficient to support all performance and grants of rights by Vendor. Copies of such

Appendix A Standard Terms and Conditions – Open Market Page 13 agreements must be provided to TXCC promptly upon request.

4.11 License to TXCC

Vendor grants to TXCC, at no additional charge, a worldwide, non-exclusive, perpetual, irrevocable, transferable, royalty-free right and license, solely for the TXCC’s internal business purposes, to use, copy, modify, display, perform (by any means), transmit and prepare derivative works of, and otherwise exploit any Vendor IP embodied in or delivered to TXCC in conjunction with the Work Product. The foregoing license includes the right to sublicense third parties, solely for the purpose of engaging such third parties to assist or carry out TXCC’s internal business use of the Work Product.

Except for the preceding license, all rights in Vendor IP remain in Vendor.

4.12 Vendor Development Rights

To the extent not inconsistent with TXCC’s rights in the Work Product or as set forth herein, nothing in the Contract will preclude Vendor from developing for itself, or for others, materials which are competitive with those produced as a result of the services provided hereunder, provided that no Work Product is utilized, and no Intellectual Property Rights of TXCC therein are infringed by such competitive materials. To the extent that Vendor wishes to use the Work Product, or acquire licensed rights in certain Intellectual Property Rights of TXCC therein in order to offer competitive goods or services to third parties, Vendor and TXCC agree to negotiate in good faith regarding an appropriate license and royalty agreement to allow for such.

5 TERMS AND CONDITIONS APPLICABLE TO STATE AGENCY PURCHASES ONLY

Under Texas Government Code, Chapter 2054, Subchapter M, and TXCC implementing rules, TXCC must procure electronic information resources (EIR) that comply with the Accessibility Standards defined in the 1 Texas Administrative Code Section 206, 1 Texas Administrative Code Section 213, and in the Worldwide Web Consortium WCAG 2.0 AA technical standard as applicable, and when such products or services are available in the commercial marketplace or when such products are developed in response to procurement solicitations. Vendor hereby represents, certifies, and warrants that it and its products and services comply with all relevant accessibility laws and standards.

A. Upon request, and prior to a TXCC purchase, Vendor must provide accurate Accessibility Conformance Reports (ACRs) created using the applicable sections of the Voluntary Product Accessibility Template® (VPAT®) Revised Section 508 Edition (Version 2.3 or higher) or links to ACRs located on manufacturer websites for Commercial Off the Shelf (COTS) products, including Software as a Service (SaaS), for each product or product family (as applicable) included in the submitted pricelist.

Instructions on how to complete this document are included in the VPAT® itself. ACRs based on earlier versions of the VPAT® will be accepted if such competed ACRs already

Appendix A Standard Terms and Conditions – Open Market Page 14 exist, and there have been no changes to the product/service since the time of the original document completion.

B. If Vendor claims that a proposed product or family of products is exempt from accessibility requirements, it must specify the product(s) as such in “Notes” located in the product information section of the VPAT v.2.3 or higher, or as an additional note in the product information section of older VPAT versions of the form, specifying each exempt product or product family with a supporting statement(s) for this position.

C. Upon request, and prior to a TXCC purchase for information technology (IT) development services, Vendor must provide a completed, current, accurate, Vendor Accessibility Development Services Information Request (VADSIR) form for non-COTS offerings (such as IT-related development services; services that include user accessed, online components; etc.) which documents Vendor’s capability or ability to produce accessible electronic and information resources.

D. Additionally, Vendor must ensure that EIR Accessibility criteria are integrated into key phases of the project development lifecycle, including planning, design, development, functional testing, user acceptance testing, maintenance; and report accessibility status at key project checkpoints as defined by

TXCC.

E. Upon request, and prior to a TXCC purchase for COTS products, or IT development services, Vendor must provide a completed, current, accurate, Policy Driven Adoption for Accessibility (PDAA) for Vendor Self-Assessment.

F. Also upon request, Vendor must provide additional documentation that supports the information contained in the aforementioned completed forms. Examples may include:

executed accessibility test plans and results; corrective actions plans; description of accessibility test tools, platforms, and methods; and prior work.

6 USE OF ACCESS DATA PROHIBITED

If Vendor stores, collects, or maintains data electronically as a condition of accessing Contract information, such data will only be used internally by Vendor for the purpose of implementing or marketing the Contract, and will not be disseminated to third parties or used for other marketing purposes. The Contract constitutes a public document under the laws of the State, and Vendor must not restrict access to Contract terms and conditions including pricing, i.e., through use of restrictive technology or passwords.

7 PROMOTION AND USE OF LOGOS

Except as required by law, a party may not use the other party’s logo, issue any public disclosures or news releases pertaining to the Contract, or otherwise promote the Contract unless it obtains

Appendix A Standard Terms and Conditions – Open Market Page 15 prior written permission from the other party. Nothing contained in the Contract will give a party any right, title, or interest in or to the other party’s trademarks or the goodwill associated therewith, except for the limited usage rights expressly provided by such party.

8 PURCHASE ORDERS, INVOICES, AND PAYMENTS

8.1 Invoices

A. Invoices must be submitted by Vendor to TXCC and must be issued in compliance with Chapter 2251, Texas Government Code.

B. Invoices must be timely and accurate. Each invoice must match the applicable Purchase Order and include any written changes that may apply, as it relates to services, prices, and quantities. Invoices must include the TXCC’s Purchase Order number or other pertinent information for verification of receipt of the products and services by TXCC.

8.2 Payments

TXCC will comply with Chapter 2251, Texas Government Code, in making payments to Vendor. The statute states that payments for goods and services are due 30 calendar days after the goods are provided, the services completed, or a correct invoice is received, whichever is later.

Payment under the Contract will not foreclose the right to recover wrongful payments.

8.3 Tax-Exempt

As per Section 151.309 of the Texas Tax Code, TXCC is exempt from the assessment of State sales, use and excise taxes, and from Federal excise taxes, per 26 United States Code Sections 4253(i).

8.4 Travel Expense Reimbursement

Pricing for services provided under the Contract are exclusive of any travel expenses that may be incurred in the performance of those services. Travel expense reimbursement may include personal vehicle mileage or commercial coach transportation, hotel accommodations, parking and meals; provided, however, the amount of reimbursement by TXCC will not exceed the amounts authorized for state employees; and, provided further, that all reimbursement rates will not exceed the maximum rates established for State employees under the current State Travel Management Program (https://comptroller.texas.gov/purchasing/programs/travel-management/). Travel time may not be included as part of the amounts payable by TXCC for any services rendered under the Contract. Anticipated travel expenses must be pre-approved in writing by TXCC. TXCC reserves the right not to pay travel expenses which are not pre-approved in writing by TXCC.

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9 CONTRACT ADMINISTRATION

9.1 Historically Underutilized Businesses Subcontract Reports

A. Vendor must electronically provide TXCC with its Historically Underutilized Business Subcontracting Report, pursuant to the Contract, as required by Chapter 2161 of the Texas Government Code.

B. Reports will be due in accordance with the rules of the Texas Comptroller of Public Accounts.

9.2 Records and Audit

A. Acceptance of funds under the Contract by Vendor or any other entity or person directly under the Contract or indirectly through a subcontract under this Contract acts as acceptance of the authority of the State Auditor’s Office or any successor agency, to conduct an audit or investigation in connection with those funds. Vendor further agrees to cooperate fully with the State Auditor’s Office or its successor in the conduct of the audit or investigation, including providing all records requested. Vendor must ensure that this clause concerning the authority to audit funds received indirectly by subcontractors through Vendor and the requirement to cooperate is included in any subcontract it awards pertaining to the Contract. Under the direction of the Legislative Audit Committee, a vendor that is the subject of an audit or investigation by the State Auditor’s Office must provide the State Auditor’s Office with access to any information the State Auditor’s Office considers relevant to the investigation or audit.

B. Vendor must maintain adequate records to establish compliance with the Contract until the later of a period of seven years after termination of the Contract or until full, final and unappealable resolution of all Compliance Check or litigation issues that arise under the Contract, whichever is later. Such records must include per transaction:

TXCC’s name, invoice date, invoice number, description, quantity, MSRP or List Price, unit price, extended price, Purchase Order number, contact name, TXCC’s complete billing address, Historically Underutilized Businesses Subcontracting reports, and such other documentation as TXCC may request.

C. Vendor must grant access to all paper and electronic records, books, documents, accounting procedures, practices, customer records including contracts, agreements, purchase orders and statements of work, and any other items relevant to the performance of the Contract to the TXCC Internal Audit department or TXCC Contract Management staff, including the Compliance Checks designated by the TXCC Internal Audit department, TXCC Contract Management staff, the State Auditor’s Office, and of the United States, and such other persons or entities designated by TXCC for the purposes of inspecting, Compliance Checking, and copying such books and records.

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D. Vendor must provide copies and printouts requested by TXCC without charge. TXCC will use best efforts to provide Vendor ten business days’ notice prior to inspecting, Compliance Checking, and copying Vendor’s records. Vendor’s records, whether paper or electronic, must be made available during regular office hours. Vendor personnel familiar with Vendor’s books and records must be available to the TXCC Internal Audit department, or TXCC Contract Management staff and designees as needed. Vendor must provide adequate office space to TXCC staff during the performance of Compliance Check. If Vendor is found to be responsible for inaccurate reports, TXCC may invoice for the reasonable costs of the audit, which Vendor must pay within 30 calendar days of receipt.

10 VENDOR RESPONSIBILITIES

10.1 Indemnification

10.1.1 Indemnities by Vendor

A. Vendor must defend, indemnify, and hold harmless TXCC and the State of Texas, AND

THEIR OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, REPRESENTATIVES, VENDORS,

SUCCESSORS, ASSIGNEES, OR DESIGNEES FROM ALL LIABILITY, ACTIONS, CLAIMS,

DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES

arising out of, resulting from, or related to:

i) any acts or omissions of Vendor, its employees, or Third-Party Providers in or in connection with the execution or performance of the Contract and any Purchase Orders issued under the Contract;

ii) all third-party claims involving infringement of United States patents, copyrights, trade and service marks, and any other intellectual or intangible property rights (an “Infringement”) in or in connection with the execution or performance of the Contract and any Purchase Orders issued under the Contract;

iii) any breach, disclosure, or exposure of data or information of or regarding TXCC that is provided to or obtained by Vendor in connection with the Contract, including TXCC data, confidential information of TXCC, any personal identifying information, or any other protected or regulated data by Vendor, its employees, representatives, agents, or subcontractors in or in connection with the execution or performance of the Contract and any Purchase Orders issued under the Contract; and

iv) tax liability, unemployment insurance or workers’ compensation or expectations of benefits by Vendor, its employees, representatives, agents, or subcontractors in or in connection with the execution or performance of the Contract and any Purchase Orders issued under the Contract.

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B. THE DEFENSE WILL BE COORDINATED BY VENDOR WITH THE OFFICE OF THE

ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN

ANY LAWSUIT AND VENDOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST

OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE ATTORNEY GENERAL.

VENDOR AND TXCC AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF

ANY SUCH CLAIM.

10.1.2 Infringements

If Vendor becomes aware of an actual or potential claim of an Infringement, or TXCC provides Vendor with notice of an actual or potential claim of an Infringement, Vendor may (or in the case of an injunction against TXCC, must), at Vendor’s sole expense: (i) procure for TXCC the right to continue to use the affected portion of the product or service, or (ii) modify or replace the affected portion of the product or service with functionally equivalent or superior product or service so that TXCC’s use is non-infringing.

10.2 Property Damage

IN THE EVENT OF LOSS, DAMAGE, OR DESTRUCTION OF ANY PROPERTY OF TXCC OR THE

STATE DUE TO THE NEGLIGENCE, MISCONDUCT, WRONGFUL ACT OR OMISSION ON THE PART

OF VENDOR, ITS EMPLOYEES, AGENTS, REPRESENTATIVES, OR SUBCONTRACTORS, VENDOR

MUST PAY THE FULL COST OF REPAIR, RECONSTRUCTION, OR REPLACEMENT OF THE

PROPERTY, AT TXCC’S SOLE ELECTION. SUCH COST MUST BE DETERMINED BY TXCC AND WILL

BE DUE AND PAYABLE BY VENDOR 90 CALENDAR DAYS AFTER THE DATE OF VENDOR’S

RECEIPT FROM TXCC OF A WRITTEN NOTICE OF THE AMOUNT DUE.

10.3 Taxes/Worker’s Compensation/Unemployment Insurance

Vendor agrees and acknowledges that during the existence of the Contract, Vendor must be entirely responsible for the liability and payment of Vendor’s and its employees’ taxes of whatever kind, arising out of the performances in the Contract. Vendor agrees to comply with all state and federal laws applicable to any such persons, including laws regarding wages, taxes, insurance, and workers’ compensation. Vendor agrees and acknowledges that Vendor and its employees, representatives, agents, and subcontractors will not be entitled to any state benefit or benefit of TXCC. TXCC and the State will not be liable to Vendor, its employees, agents, or others for the payment of taxes or the provision of unemployment insurance and workers’ compensation or any benefit available to a state employee or employee of TXCC.

10.4 Vendor Certifications

A. Vendor represents and warrants that, in accordance with Section 2155.005 of the Texas Government Code, neither Vendor nor the firm, corporation, partnership, or institution represented by Vendor, or anyone acting for such a firm, corporation, partnership, or

Appendix A Standard Terms and Conditions – Open Market Page 19 institution has (1) violated any provision of the Texas Free Enterprise and Antitrust Act of 1983, Chapter 15 of the Texas Business and Commerce Code, or the federal antitrust laws, or (2) communicated directly or indirectly the contents of this Contract to any competitor or any other person engaged in the same line of business as Vendor.

B. Vendor hereby certifies, represents, and warrants, on behalf of Vendor that:

i) it has not given, offered to give, and does not intend 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 Contract;

ii) it is not currently delinquent in the payment of any franchise tax owed the State and is not ineligible to receive payment under Section 231.006, Texas Family Code, and acknowledges the Contract may be terminated and payment withheld if this certification is inaccurate;

iii) neither it, nor anyone acting for it, has violated the antitrust laws of the United States or the State, nor communicated directly or indirectly to any competitor or any other person engaged in such line of business for the purpose of obtaining an unfair price advantage;

iv) it has not received payment from TXCC or any of its employees or participating in the preparation of the Contract;

v) under Section 2155.004 of the Texas Government Code, the individual or business entity named in the Contract is not ineligible to receive the Contract and acknowledges that the Contract may be terminated and payment withheld if this certification is inaccurate;

vi) to the best of its knowledge and belief, there are no suits or proceedings pending or threatened against or affecting Vendor, which if determined adversely to Vendor, will have a material adverse effect on the ability to fulfill its obligations under the Contract;

vii) 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 or the System for Award Management (SAM) maintained by the General Services Administration, nor is Vendor subject to any Federal Executive Orders issued banning certain entities or countries, including, , 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;

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viii) as of the Effective Date of the Contract, it is not listed in any of the Divestment Statute Lists published on the Texas State Comptroller’s website (https://comptroller.texas.gov/purchasing/publications/divestment.php);

ix) it must, in the performance of the Contract, purchase products and materials produced in the State of Texas when available at the price and time comparable to products and materials produced outside the state, to the extent that such is required under Section 2155.4441 of the Texas Government Code;

x) all equipment and materials to be used in fulfilling the requirements of the Contract are of high-quality and consistent with or better than applicable industry standards, if any. All works and services performed pursuant to the Contract must be of high professional quality and workmanship and consistent with or better than applicable industry standards, if any;

xi) to the extent it owes any debt including, , delinquent taxes, delinquent student loans, and child support owed to the State of Texas, any payments or other amounts Vendor is otherwise owed under the Contract may be applied toward any debt Vendor owes the State of Texas until the debt is paid in full;

xii) it is in compliance Section 669.003, Texas Government Code, relating to contracting with executive head of a state agency;

xiii) the provision of goods and services or other performance under the Contract will not constitute an actual or potential conflict of interest and certify that Vendor will not reasonably create the appearance of impropriety, and, if these facts change during the course of the Contract, Vendor must disclose the actual or potential conflict of interest and any circumstances that create the appearance of impropriety;

xiv) under Sections 2155.006 and 2261.053 of the Texas Government Code, it is not ineligible to receive the Contract and acknowledges that the Contract may be terminated and payment withheld if this certification is inaccurate;

xv) it has complied with the Section 556.0055 of the Texas Government Code, restriction on lobbying expenditures. In addition, Vendor acknowledges the applicability of Sections 2155.444 and 2155.4441 of the Texas Government Code, in fulfilling the terms of the Contract;

xvi) TXCC’s payment and their receipt of appropriated or other funds under this Agreement are not prohibited by Sections 556.005 or 556.008 of the Texas Government Code;

xvii) if it is required to make a certification pursuant to Section 2271.002 of the Texas

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Government Code, Vendor certifies that Vendor does not boycott Israel and will not boycott Israel during the term of the Contract;

xviii) in accordance with Section 2155.0061 of the Texas Government Code, the individual or business entity named in the Contract is not ineligible to receive the Contract and acknowledges that the Contract may be terminated and payment withheld if this certification is inaccurate;

xix) in accordance with Section 2252.152, Texas Government Code, it is not identified on a list prepared and maintained under Section 2270.0201 (previously 806.051) or Section 2252.153, Texas Government Code;

xx) if it is required to make a verification pursuant to Section 2276.002 of the Texas Government Code, Vendor verifies that it does not boycott energy companies and will not boycott energy companies during the term of the Contract;

xxi) if it is required to make a verification pursuant to Section 2274.002 of the Texas Government Code, Vendor verifies that it (A) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association and (B) will not discriminate during the term of the Contract against a firearm entity or firearm trade association;

xxii) under Section 161.0085 of the Texas Health and Safety Code, Vendor is not ineligible to receive the Contract;

xxiii) if it is required to make a certification pursuant to Section 2275.0102 of the Texas Government Code, (A) Vendor, including a wholly owned subsidiary, majority-owned subsidiary, parent company, or affiliate of Vendor, is not owned by or the majority of stock or other ownership interest of Vendor is not held or controlled by individuals who are citizens of China, Iran, North Korea, Russia, or a country designated by the Governor as a threat to critical infrastructure; (B) Vendor, including a wholly owned subsidiary, majority-owned subsidiary, parent company, or affiliate of Vendor, is not owned by or the majority of stock or other ownership interest of Vendor is not held or controlled by a company or other entity, including a governmental entity, that is owned or controlled by citizens of or is directly controlled by the government of China, Iran, North Korea, Russia, or a country designated by the Governor as a threat to critical infrastructure; and

(C) Vendor, including a wholly owned subsidiary, majority-owned subsidiary, parent company, or affiliate of Vendor, is not headquartered in China, Iran, North Korea, Russia, or a country designated by the Governor as a threat to critical infrastructure;

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xxiv) if the services to be provided under the Contract include cloud computing services, pursuant to Section 2054.0593(d)-(f) of the Texas Government Code, Vendor must comply with the requirements of the Texas Risk and Authorization Management Program (“TX-RAMP”), as provided by 1 TAC §§

202.27 and 202.77, and the TX-RAMP Program Manual (“Program Manual”).

Vendor must maintain program compliance and certification throughout the term of the Contract, including providing all quarterly and ongoing documentation required by the Program Manual and any other continuous monitoring documentation or artifacts required by TXCC. Upon request from TXCC or the Customer issuing such Purchase Order, Vendor must provide all documents and information necessary to demonstrate Vendor’s compliance with TX-RAMP; and

xxv) that neither the Vendor is, nor its holding companies or subsidiaries, is): (a) listed in Section 889 of the 2019 National Defense Authorization Act; (b) listed in Section 1260H of the 2021 National Defense Authorization Act; or

(c) owned by the government of a country on the U.S. Department of Commerce’s foreign adversaries list under 15 C.F.R Section 791.4; or (d) controlled by any governing or regulatory body located in a country on the U.S. Department of Commerce’s foreign adversaries list under 15 C.F.R Section 791.4; and

xxvi) all information provided by Vendor is current, true, accurate, and complete.

C. During the term of the Contract, Vendor must promptly disclose to TXCC all changes that occur to the foregoing certifications, representations, and warranties. Vendor covenants to fully cooperate in the development and execution of resulting documentation necessary to maintain an accurate record of the certifications, representations, and warranties and any changes thereto.

10.5 Ability to Conduct Business in Texas

Vendor must be authorized and validly existing under the laws of its state of organization and must be authorized to do business in the State of Texas in accordance with Texas Business Organization Code, Title 1, Chapter 9. Upon request by TXCC, Vendor must provide all documents and other information necessary to establish Vendor’s authorization to do business in the State of Texas and the validity of Vendor’s existence under the laws of its state of organization.

10.6 Equal Opportunity Compliance

Vendor agrees to abide by all applicable laws, regulations, and executive orders pertaining to equal employment opportunity, including Federal laws and the laws of the State of

Appendix A Standard Terms and Conditions – Open Market Page 23

Texas in which its primary place of business is located. In accordance with such laws, regulations, and executive orders, Vendor agrees that no person in the United States must, on the grounds of race, color, religion, national origin, sex, age, veteran status or handicap, be excluded from employment with or participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity performed by Vendor under the Contract. If Vendor is found to be not in compliance with these requirements during the term of the Contract, Vendor agrees to take appropriate steps to correct these deficiencies. Upon request, Vendor will furnish information regarding its nondiscriminatory hiring and promotion policies, as well as specific information on the composition of its principals and staff, including the identification of minorities and women in management or other positions with discretionary or decision-making authority.

10.7 Use of Subcontractors

If Vendor uses any subcontractors in the performance of the Contract, Vendor must make a good faith effort in the submission of its HUB Subcontracting Plan (HSP) in accordance with the State’s Policy on Utilization of Historically Underutilized Businesses (HUB).