ESBD_File_296247_Appendix A Terms and Conditions.pdf

Department of Information Resources

Appendix A Contract Terms and Conditions

Open Market Procurements

Appendix A Standard Contract Terms and Conditions – Open Market Procurement Page 1 <Rev July 2022>

Contents 1 Contract Scope 2 Definitions

Compliance Check Contract Business day

DIR

Effective Date Invoice Federal Purchase Order State

Statement of Work (SOW) Subcontracting Plan Successful Respondent Third-Party Provider

3 General Provisions

Entire Agreement Modification of Contract Terms and/or Amendments Invalid Term or Condition Assignment Survival Choice of Law Limitation of Authority Proof of Financial Stability Data Location

Independent Contractor

4 Intellectual Property Matters

Intellectual Property Matters Definitions

4.1.1 “Work Product”

4.1.2 “Intellectual Property Rights”

4.1.3 “Third-Party IP”

4.1.4 “Successful Respondent IP”

Ownership Further Actions Waiver of Moral Rights Confidentiality Injunctive Relief Return of Materials Pertaining to Work Product Successful Respondent License to Use Third-Party Underlying and Derivative Works

Agreement with Third-Party Providers

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License to DIR Successful Respondent 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

Invoices Payments Tax-Exempt Travel Expense Reimbursement

9 Contract Administration

Historically Underutilized Businesses Subcontract Reports Records and Audit

10 Successful Respondent Responsibilities

Indemnification

10.1.1 Indemnities by Successful Respondent

10.1.2 Infringements

Property Damage Taxes/Worker’s Compensation/Unemployment Insurance Successful Respondent Certifications Ability to Conduct Business in Texas Equal Opportunity Compliance Use of Subcontractors Responsibility for Actions Confidentiality

Security of Premises, Equipment, Data and Personnel Background and/or Criminal History Investigation Limitation of Liability Overcharges Prohibited Conduct Use of State Property Immigration Product and/or Services Substitutions Secure Erasure of Hard Disk Managed Services Products and/or Services Deceptive Trade Practices; Unfair Business Practices Drug Free Workplace Policy Public Information Successful Respondent Reporting Requirements Cybersecurity Training

11 Contract Enforcement

Enforcement of Contract and Dispute Resolution

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Termination

11.2.1 Termination for Non-Appropriation

11.2.2 Absolute Right

11.2.3 Termination for Convenience

11.2.4 Termination for Cause

11.2.5 Immediate Termination or Suspension

Force Majeure

12 Non-Solicitation of DIR Employees 13 Warranty 14 Notification

Notices Handling of Written Complaints

15 Captions

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The following terms and conditions shall govern the conduct of DIR and Successful Respondent during the term of the Contract.

1 CONTRACT SCOPE

Successful Respondent shall provide the products and/or services specified in the Contract. Terms used in this document shall have the meanings set forth below in Section 2 Definitions.

2 DEFINITIONS

Compliance Check

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

Contract

Refers to the agreement between DIR and Successful Respondent into which this Appendix A is incorporated.

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.

DIR

Refers to the Texas Department of Information Resources.

Effective Date

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

Invoice

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

Federal

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

Purchase Order

Refers to a fiscal form or format, contract with Successful Respondent, or other document used by DIR to authorize the purchase of products or services from Successful Respondent under the Contract, including but not limited to a formal written purchase order, procurement card, electronic purchase order, or another authorized instrument.

State

Refers to the State of Texas.

Statement of Work (SOW)

Refers to a document entered into between DIR and Successful Respondent describing a specific set of activities and/or deliverables, which may include Work Product and Intellectual Property Rights, that Successful Respondent is to provide DIR, issued pursuant to the Contract.

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Subcontracting Plan

Refers to Appendix B, Successful Respondent’s Historically Underutilized Business Subcontracting Plan.

Successful Respondent

Refers to Successful Respondent as defined in the Contract.

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 Successful Respondent to provide products or services to DIR in performance of, related to, or in support of the Contract.

3 GENERAL PROVISIONS

Entire Agreement

The Contract, Appendices, and Exhibits constitute the entire agreement between DIR and Successful Respondent. 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 shall be binding or valid.

Modification of Contract Terms and/or Amendments

A. The terms and conditions of the Contract shall govern all transactions by DIR and Successful Respondent under the Contract. The Contract may only be modified or amended upon mutual written agreement of DIR and Successful Respondent.

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

Invalid Term or Condition

A. To the extent any term or condition in the Contract conflicts with the applicable Texas and/or 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, DIR makes no representations or warranties regarding the enforceability of such term or condition, and DIR does not waive the applicable Texas and/or United States law or regulation which conflicts with the Contract term or condition.

B. If one (1) 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 shall remain valid and in full force and effect.

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Assignment

A. DIR 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. Successful Respondent shall not assign its rights under the Contract or delegate the performance of its duties under the Contract without prior written approval from the DIR. Any attempted assignment in violation of this provision is void and without effect.

Survival

Rights and obligations under the Contract which by their nature should survive, including, but not limited to any and all payment obligations invoiced prior to the termination or expiration hereof, obligations of confidentiality, and indemnification obligations will remain in effect.

Choice of Law

The Contract shall be governed by and construed in accordance with the laws of the State of Texas, without regard to the conflicts of law provisions. The 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, DIR does not waive any defense or immunity whatsoever in any manner.

Limitation of Authority

Successful Respondent shall have no authority to act for or on behalf of the Texas Department of Information Resources or the State except as expressly provided for in the Contract; no other authority, power, or use is granted or implied. Successful Respondent may not incur any debts, obligations, expenses, or liabilities of any kind on behalf of the State or DIR.

Proof of Financial Stability

DIR may require Successful Respondent to provide proof of financial stability prior to or at any time during the Contract term.

Data Location

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

Independent Contractor

SUCCESSFUL RESPONDENT AGREES AND ACKNOWLEDGES THAT DURING THE

EXISTENCE OF THE CONTRACT, IT IS FURNISHING SERVICES IN THE CAPACITY OF

AN INDEPENDENT CONTRACTOR AND THAT SUCCESSFUL RESPONDENT IS NOT AN

EMPLOYEE OF DIR, OR THE STATE OF TEXAS.

4 INTELLECTUAL PROPERTY MATTERS

Intellectual Property Matters Definitions

4.1.1 “Work Product”

Means any and all deliverables produced by Successful Respondent for DIR under the Contract or a Statement of Work issued pursuant to the Contract, including any and all tangible or intangible items or

Appendix A Standard Contract Terms and Conditions – Open Market Procurement Page 7 things that have been or will be prepared, created, developed, invented, or conceived at any time following the Effective Date, including but not limited to 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 DIR under the Contract or a

Statement of Work; and

(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 DIR in connection with the Contract or a Statement of Work, or with funds appropriated by or for DIR or DIR benefit:

a. by any Successful Respondent personnel or DIR personnel, or

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

DIR.

4.1.2 “Intellectual Property Rights”

Means the worldwide legal rights or interests, including but not limited to all United States and foreign patents, copyrights, trademarks, service marks, trade secrets, moral rights, author’s rights, reversionary rights, and any 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.

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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 DIR under the Contract or a Purchase Order or Statement of Work issued under the Contract.

4.1.4 “Successful Respondent IP”

Means all tangible or intangible items or things, including the Intellectual Property Rights therein, created or developed by Successful Respondent:

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

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

Ownership

As between Successful Respondent and DIR, the Work Product and Intellectual Property Rights therein are and shall be owned exclusively by DIR, and not Successful Respondent. Successful Respondent specifically agrees that the Work Product shall be considered “works made for hire” and that the Work Product shall, upon creation, be owned exclusively by DIR. To the extent that the Work Product, under applicable law, may not be considered works made for hire, Successful Respondent hereby agrees that the Contract effectively transfers, grants, conveys, assigns, and relinquishes exclusively to DIR 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 DIR shall be entitled to obtain and hold in its own name all Intellectual Property Rights in and to the Work Product. Successful Respondent acknowledges that Successful Respondent and DIR do not intend Successful Respondent to be a joint author of the Work Product within the meaning of the Copyright Act of 1976. DIR shall have access, during normal business hours (Monday through Friday, 8AM to 5PM) and upon reasonable prior notice to Successful Respondent, to all Successful Respondent materials, premises, and computer files containing the Work Product. Successful Respondent and DIR, 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 Successful Respondent.

Further Actions

Successful Respondent, upon request and without further consideration, shall perform any acts that may be deemed reasonably necessary or desirable by DIR to evidence more fully the transfer of ownership and/or registration of all Intellectual Property Rights in all Work Product to DIR to the fullest extent possible, including but not limited to the execution, acknowledgement, and delivery of such further documents in a form determined by DIR. In the event DIR shall be unable to obtain Successful

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Respondent’s signature due to the dissolution of Successful Respondent or Successful Respondent’s unreasonable failure to respond to DIR’s repeated requests for such signature on any document reasonably necessary for any purpose set forth in the foregoing sentence, Successful Respondent hereby irrevocably designates and appoints DIR and its duly authorized officers and agents as Successful Respondent’s agent and Successful Respondent’s attorney-in-fact to act for and in Successful Respondent’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 Successful Respondent, provided, however, that no such grant of right to DIR is applicable if Successful Respondent fails to execute any document due to a good faith dispute by Successful Respondent with respect to such document. It is understood that such power is coupled with an interest and is therefore irrevocable. DIR shall have the full and sole power to prosecute such applications and to take all other action concerning the Work Product, and Successful Respondent shall cooperate, at DIR’s sole expense, in the preparation and prosecution of all such applications and in any legal actions and proceedings concerning the Work Product.

Waiver of Moral Rights

Successful Respondent hereby irrevocably and forever waives, and agrees never to assert, any Moral Rights in or to the Work Product which Successful Respondent may now have or which may accrue to Successful Respondent’s benefit under United States or foreign copyright or other laws and any and all other residual rights and benefits which arise under any other applicable law now in force or hereafter enacted. Successful Respondent acknowledges the receipt of equitable compensation for its assignment and waiver of such Moral Rights. The term “Moral Rights” shall mean any and 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.

Confidentiality

All documents, information and materials forwarded to Successful Respondent by DIR for use in and preparation of the Work Product shall be deemed the confidential information of DIR, and subject to the license granted by DIR to Successful Respondent under Section 4.8 Successful Respondent License to Use. Hereunder, Successful Respondent shall 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 DIR.

Injunctive Relief

The Contract is intended to protect DIR’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 DIR’s business. Therefore, Successful Respondent 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 DIR, without requiring proof of irreparable injury as same should be presumed.

Return of Materials Pertaining to Work Product

Upon the request of DIR, but in any event upon termination or expiration of the Contract, or a Statement of Work, Successful Respondent shall surrender to DIR all documents and things pertaining to the Work Product, including but not limited to drafts, memoranda, notes, records, drawings, manuals, computer software, reports, data, and all other documents or materials (and copies of same) generated or developed

Appendix A Standard Contract Terms and Conditions – Open Market Procurement Page 10 by Successful Respondent or furnished by DIR to Successful Respondent, including all materials embodying the Work Product, any DIR 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 Successful Respondent by DIR or by anyone else that pertain to the Work Product.

Successful Respondent License to Use

DIR hereby grants to Successful Respondent a non-transferable, non-exclusive, royalty-free, fully paid-up license to use any Work Product solely as necessary to provide the services to DIR. Except as provided in this Section, neither Successful Respondent nor any Subcontractor shall 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 DIR, which consent may be withheld in DIR’s sole discretion.

Third-Party Underlying and Derivative Works

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

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

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

IP.

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

Agreement with Third-Party Providers

Successful Respondent agrees that it shall 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 Successful Respondent shall maintain such written agreements at all times during performance of the Contract, which are sufficient to support all performance and grants of rights by Successful Respondent.

Copies of such agreements shall be provided to the DIR promptly upon request.

License to DIR

Successful Respondent grants to DIR, at no additional charge, a worldwide, non-exclusive, perpetual, irrevocable, transferable, royalty-free right and license, solely for the DIR’s internal business purposes, to use, copy, modify, display, perform (by any means), transmit and prepare derivative works of, and otherwise exploit any Successful Respondent IP embodied in or delivered to DIR 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 DIR’s internal business use of the Work Product.

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

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Successful Respondent Development Rights

To the extent not inconsistent with DIR’s rights in the Work Product or as set forth herein, nothing in the Contract shall preclude Successful Respondent 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 DIR therein are infringed by such competitive materials. To the extent that Successful Respondent wishes to use the Work Product, or acquire licensed rights in certain Intellectual Property Rights of DIR therein in order to offer competitive goods or services to third parties, Successful Respondent and DIR 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 DIR implementing rules, DIR must procure electronic information resources (EIR) that comply with the Accessibility Standards defined in the Texas Administrative Codes 1 TAC 206, 1 TAC 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. Successful Respondent 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 DIR purchase, Successful Respondent 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 exist, and there have been no changes to the product/service since the time of the original document completion.

B. If Successful Respondent 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 DIR purchase for information technology (IT) development services, Successful Respondent 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 Successful Respondent’s capability or ability to produce accessible electronic and information resources.

D. Additionally, Successful Respondent must ensure that EIR Accessibility criteria are integrated into key phases of the project development lifecycle, including but not limited to planning, design, development, functional testing, user acceptance testing, maintenance;

and report accessibility status at key project checkpoints as defined by DIR.

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

F. Also upon request, Successful Respondent must provide additional documentation that supports the information contained in the aforementioned completed forms. Examples may include but are not limited to: 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 Successful Respondent stores, collects, or maintains data electronically as a condition of accessing Contract information, such data shall only be used internally by Successful Respondent for the purpose of implementing or marketing the Contract, and shall 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 Successful Respondent shall 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 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

Invoices

A. Invoices shall be submitted by Successful Respondent to DIR and shall 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 DIR’s Purchase Order number or other pertinent information for verification of receipt of the products and services by DIR.

Payments

DIR shall comply with Chapter 2251, Texas Government Code, in making payments to Successful Respondent. The statute states that payments for goods and services are due thirty (30) calendar days after the goods are provided, the services completed, or a correct invoice is received, whichever is later.

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

Tax-Exempt

As per Section 151.309 of the Texas Tax Code, DIR 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).

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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 DIR shall not exceed the amounts authorized for state employees; and, provided further, that all reimbursement rates shall 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 DIR for any services rendered under the Contract. Anticipated travel expenses must be pre-approved in writing by DIR. DIR reserves the right not to pay travel expenses which are not pre-approved in writing by DIR.

9 CONTRACT ADMINISTRATION

Historically Underutilized Businesses Subcontract Reports

A. Successful Respondent shall electronically provide DIR with its Historically Underutilized Business Subcontracting Report, pursuant to the Contract, as required by Chapter 2161 of the Texas Government Code.

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

Records and Audit

A. Acceptance of funds under the Contract by Successful Respondent 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. Successful Respondent 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. Successful Respondent shall ensure that this clause concerning the authority to audit funds received indirectly by subcontractors through Successful Respondent 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. Successful Respondent shall maintain adequate records to establish compliance with the Contract until the later of a period of seven (7) 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 shall include per transaction: DIR’s name, invoice date, invoice number, description, quantity, MSRP or List Price, unit price, extended price, Purchase Order number, contact name, DIR’s complete billing address, Historically Underutilized Businesses Subcontracting reports, and such other documentation as DIR may request.

C. Successful Respondent shall grant access to all paper and electronic records, books, documents, accounting procedures, practices, customer records including but not limited to contracts, agreements, purchase orders and statements of work, and any other items relevant to the performance of the Contract to the DIR Internal Audit department or DIR Contract Management staff, including the Compliance Checks designated by the DIR Internal Audit department, DIR https://comptroller.texas.gov/purchasing/programs/travel-management/

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Contract Management staff, the State Auditor’s Office, and of the United States, and such other persons or entities designated by DIR for the purposes of inspecting, Compliance Checking, and/or copying such books and records.

D. Successful Respondent shall provide copies and printouts requested by DIR without charge. DIR shall use best efforts to provide Successful Respondent ten (10) business days’ notice prior to inspecting, Compliance Checking, and/or copying Successful Respondent’s records. Successful Respondent’s records, whether paper or electronic, shall be made available during regular office hours. Successful Respondent personnel familiar with Successful Respondent’s books and records shall be available to the DIR Internal Audit department, or DIR Contract Management staff and designees as needed. Successful Respondent shall provide adequate office space to DIR staff during the performance of Compliance Check. If Successful Respondent is found to be responsible for inaccurate reports, DIR may invoice for the reasonable costs of the audit, which Successful Respondent must pay within thirty (30) calendar days of receipt.

10 SUCCESSFUL RESPONDENT RESPONSIBILITIES

Indemnification

10.1.1 Indemnities by Successful Respondent

A. Successful Respondent shall defend, indemnify, and hold harmless DIR and the State of Texas, AND/OR THEIR OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, SUCCESSORS, ASSIGNEES, AND/OR DESIGNEES FROM ANY AND

ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED

COSTS, ATTORNEY FEES, AND EXPENSES arising out of, resulting from, or related to:

i) any acts or omissions of Successful Respondent, 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) any and 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 DIR that is provided to or obtained by Successful Respondent in connection with the Contract, including DIR data, confidential information of DIR, any personal identifying information, or any other protected or regulated data by Successful Respondent, 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 Successful Respondent, 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.

B. THE DEFENSE SHALL BE COORDINATED BY SUCCESSFUL RESPONDENT WITH THE

OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED

DEFENDANTS IN ANY LAWSUIT AND SUCCESSFUL RESPONDENT MAY NOT AGREE

TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM

THE OFFICE OF THE ATTORNEY GENERAL. SUCCESSFUL RESPONDENT AND DIR

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

CLAIM.

10.1.2 Infringements

If Successful Respondent becomes aware of an actual or potential claim of an Infringement, or DIR provides Successful Respondent with notice of an actual or potential claim of an Infringement, Successful Respondent may (or in the case of an injunction against DIR, shall), at Successful Respondent’s sole expense: (i) procure for DIR 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 DIR’s use is non-infringing.

Property Damage

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

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

PART OF SUCCESSFUL RESPONDENT, ITS EMPLOYEES, AGENTS, REPRESENTATIVES, OR

SUBCONTRACTORS, SUCCESSFUL RESPONDENT SHALL PAY THE FULL COST OF REPAIR,

RECONSTRUCTION, OR REPLACEMENT OF THE PROPERTY, AT DIR’S SOLE ELECTION.

SUCH COST SHALL BE DETERMINED BY DIR AND SHALL BE DUE AND PAYABLE BY

SUCCESSFUL RESPONDENT NINETY (90) CALENDAR DAYS AFTER THE DATE OF

SUCCESSFUL RESPONDENT’S RECEIPT FROM DIR OF A WRITTEN NOTICE OF THE

AMOUNT DUE.

Taxes/Worker’s Compensation/Unemployment Insurance

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

Successful Respondent Certifications

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

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

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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 DIR or any of its employees for 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 Successful Respondent, which if determined adversely to Successful Respondent, 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 Successful Respondent subject to any Federal Executive Orders issued banning certain entities or countries, including, but not limited to, 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;

viii) as of the Effective Date, 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 shall, 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 shall 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, but not limited to, delinquent taxes, delinquent student loans, and child support owed to the State of Texas, any payments or other amounts Successful Respondent is otherwise owed under the Contract may be applied toward any debt Successful Respondent 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;

https://comptroller.texas.gov/purchasing/publications/divestment.php

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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 Successful Respondent will not reasonably create the appearance of impropriety, and, if these facts change during the course of the Contract, Successful Respondent shall 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, Successful Respondent acknowledges the applicability of Sections 2155.444 and 2155.4441 of the Texas Government Code, in fulfilling the terms of the Contract;

xvi) DIR’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 2271.001 of the Texas Government Code, Successful Respondent certifies that Successful Respondent 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 2274.002 of the Texas Government Code, Successful Respondent 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, Successful Respondent 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, Successful Respondent is not ineligible to receive the Contract;

xxiii) if it is required to make a certification pursuant to Section 2274.0102 of the Texas Government Code, (A) Successful Respondent, including a wholly owned subsidiary, majority-owned subsidiary, parent company, or affiliate of Successful Respondent, is not owned by or the majority of stock or other ownership interest of Respondent 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) Successful Respondent, including a wholly owned subsidiary, majority-owned subsidiary, parent company, or affiliate of Successful Respondent, is not owned by or the majority of stock or other ownership interest of Successful Respondent 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

Appendix A Standard Contract Terms and Conditions – Open Market Procurement Page 18 designated by the Governor as a threat to critical infrastructure; and (C) Successful Respondent, including a wholly owned subsidiary, majority-owned subsidiary, parent company, or affiliate of Successful Respondent, is not headquartered in China, Iran, North Korea, Russia, or a country designated by the Governor as a threat to critical infrastructure;

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, Successful Respondent shall 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”). Successful Respondent shall 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 DIR.

Upon request from DIR, Successful Respondent shall provide all documents and information necessary to demonstrate Successful Respondent’s compliance with TX- RAMP; and

xxv) all information provided by Successful Respondent is current, true, accurate, and complete.

C. During the term of the Contract, Successful Respondent shall promptly disclose to DIR all changes that occur to the foregoing certifications, representations, and…