ESBD_File_347858_02. Texas A&M Forest - Terms and Conditions.pdf

Revised 2/18/20

Texas A&M Forest Service Terms and Conditions

These Terms and Conditions shall be incorporated by reference into any purchase order resulting from RFP-24-001 between TFS and Contractor (the “Agreement”). TFS and Contractor may be referred to singularly as a “Party” and collectives as the “Parties.”

1. Payment Terms. Payment terms for amounts due from TFS to Contractor under the

Agreement (including due dates and late fees) are governed by Chapter 2251 of the Texas Government Code.

2. Payment of Debt or Delinquency to the State. Pursuant to Section 2252.903, Texas Government Code, Contractor agrees that any payments owing to Contractor under the Agreement may be applied directly toward any debts or delinquencies that Contractor owes the State of Texas or any agency of the State of Texas regardless of when they arises, until such debts or delinquencies are paid in full.

3. Delinquent Child Support Obligations. A child support obligor who is more than 30 days delinquent in paying child support and a business entity in which the obligor is a sole proprietor, partner, shareholder, or owner with an ownership interest of at least 25% is not eligible to receive payments from state funds under an agreement to provide property, materials, or services until all arrearages have been paid or the obligor is in compliance with a written repayment agreement or court order as to any existing delinquency. The Texas Family Code requires the following statement: “Under Section 231.006, Texas Family Code, the Contractor certifies that the individual or business entity name in the Agreement is not ineligible to receive the specified grant, loan, or payment and acknowledges that the Agreement may be terminated and payment may be withheld if this certification is inaccurate.”

4. Certification Concerning Financial Participation. Pursuant to Section 2155.004, Texas Government Code, the Contractor certifies that it is not ineligible to receive the contract or payments under the Agreement and acknowledges that the Agreement may be terminated and/or payments may be withheld if this certification is inaccurate.

5. Tax Certification. If Contractor is a taxable entity as defined by Chapter 171, Texas Tax Code, then Contractor certifies that it is not currently delinquent in the payment of any franchise (margin) taxes or that Contractor is exempt from the payment of franchise (margin) taxes.

6. Tax Exemption. TFS will not be required to pay any taxes for which it can demonstrate an exemption.

7. Indemnification. Contractor agrees to indemnify and hold harmless TFS from any claim, damage, liability, expense or loss to the extent arising out of Contractor’s negligent or willful errors or omissions under the Agreement.

8. Independent Contractor. Contractor is an independent contractor, and neither Contractor nor any employee of Contractor shall be deemed to be an agent or employee of TFS. TFS will have no responsibility to provide transportation, insurance or other fringe benefits normally associated with employee status. Contractor shall observe and abide by all applicable laws and regulations, policies and procedures, including but not limited to those of TFS relative to conduct on its premises (if applicable).

9. Previous Employment. Contractor acknowledges and understands that Section 2252.901, Texas Government Code, prohibits TAMUS from using state appropriated funds to enter into any employment contract, consulting contract, or professional services contract with any individual who has been previously employed, as an employee, by TFS within the past twelve (12) months. Contractor certifies that no TAMUS member has previously designated the Contractor’s employees or officers performing under the Agreement as Not Eligible for Rehire. If Contractor is an individual, Contractor certifies that Section 2252.901, Texas Government Code, does not prohibit the use of state appropriated funds for satisfying the payment obligations in the Agreement.

10. Representations and Warranties by Contractor. If Contractor is a corporation or a limited liability company, Contractor warrants, represents, covenants, and agrees that:

(i) it is duly organized, validly existing and in good standing under the laws of the state of its incorporation or organization; (ii) it is duly authorized and in good standing to conduct business in the State of Texas; (iii) it has all necessary power and has received all necessary approvals to execute and deliver the Agreement; and (iv) the individual executing the Agreement on behalf of Contractor has been duly authorized to act for and bind Contractor.

11. Breach of Contract Claims. To the extent that Chapter 2260, Texas Government Code, is applicable to the Agreement and is not preempted by other applicable law, the dispute resolution process provided for in Chapter 2260 and the related rules adopted by the Texas Attorney General pursuant to Chapter 2260, will be used by the Parties to attempt to resolve any claim for breach of contract made by Contractor against TFS that cannot be resolved in the ordinary course of business. The Associate Director for Finance and Administration of TFS shall examine Contractor’s claim and any counterclaim and negotiate with Contractor in an effort to resolve such claims. The Parties hereto specifically agree that (i) neither the execution of the Agreement and/or this Addendum by TFS nor any other conduct, action or inaction of any representative of TFS relating to the Agreement and/or this Addendum constitutes or is intended to constitute a waiver of TFS’s or the State’s sovereign immunity to suit; and (ii) TFS has not waived its right to seek redress in a court of law.

12. Loss of Funding. Performance by TFS under the Agreement may be dependent upon the appropriation and allotment of funds by the Texas State Legislature (the "Legislature") and/or allocation of funds by the Board of Regents of The Texas A&M University System (the "Board"). If the Legislature fails to appropriate or allot the necessary funds, or the Board fails to allocate the necessary funds, then TFS will issue written notice to Contractor and TFS may terminate the Agreement without further duty or obligation hereunder. Contractor acknowledges that appropriation, allotment, and allocation of funds are beyond the control of TFS.

13. Audit. Contractor understands that acceptance of funds under the Agreement constitutes Contractor’s acceptance of the authority of the Texas State Auditor’s Office, or any successor agency (collectively, “Auditor”) to conduct an audit or investigation in connection with those funds pursuant to Section 51.9335(c), Texas Education Code.

Contractor agrees to cooperate with the Auditor in the conduct of the audit or investigation, including without limitation, providing all records requested. Contractor will include this provision in all contracts with permitted subcontractors.

14. Inapplicable Provisions. None of the following provisions, if they appear in the Agreement, shall have any effect or be enforceable against TFS: (i) requiring TFS to maintain any type of insurance either for TFS’s benefit or for Contractor’s benefit; (ii) renewing or extending the initial Agreement term or automatically continuing or renewing the original Agreement term;

(iii) binding TFS to any arbitration, to the decision of any arbitration board, commission, panel or other entity, or to any other alternative dispute resolution other than is provided herein;

(iv) requiring TFS to indemnify Contractor from/against any claims, damages, suits, penalties, fines and/or costs resulting from the negligence or intentional acts of Contractor or Contractor’s employees, representatives or agents; (v) limiting the time within which TFS may file a lawsuit based on a claim that the contractor/vendor has breached the contract’s terms and conditions.

15. Limitations. As a state agency, TFS is subject to constitutional and statutory limitations on its ability to enter into certain contractual terms and conditions, including but not limited to: those related to TFS’s indemnification of other parties; liability for other parties’ acts or omissions; disclaimers and limitations on other parties’ liability; earnest money/deposits; liens on TFS property; liquidated damages; cancellation penalties, waivers, disclaimers, and limitations on legal rights and remedies; granting of control of litigation or settlement to other parties; payment of other parties’ attorney fees or court costs; and those addressed elsewhere in this Agreement (collectively “Limitations”).

Terms and conditions of the Agreement relating to the Limitations will only be binding on TFS to the extent permitted by the Constitution and the laws of the State of Texas.

16. Force Majeure. Neither Party is required to perform any term, condition, or covenant of the Agreement, if performance is prevented or delayed by a natural occurrence, a fire, an act of God, an act of terrorism, or other similar occurrence, the cause of which is not reasonably within the control of a Party and which by due diligence it is unable to prevent or overcome.

17. Governing Law, Venue & Statute of Limitations. The Agreement and the applicable statute of limitations for any cause of action brought by or against TFS pursuant to the Agreement will be governed by the laws of the State of Texas without regard to choice of law principles. Pursuant to Section 85.18, Texas Education Code, Brazos County is the mandatory place of venue for suit on or in respect of the Agreement.

18. No Financial Interest. Neither Party nor its employees, agents, representatives or consultants will assist or cause any TFS employee to violate TFS’s Conflicts of Interest Policy or applicable state ethics laws or rules. To the best of Contractor’s knowledge, no member of the TAMUS Board of Regents has a direct or indirect financial interest in the transaction that is the subject of this Agreement.

19. Public Information Act. A.) Contractor acknowledges that TFS is obligated to strictly comply with the Public Information Act, Chapter 552, Texas Government Code, in

Revised 2/18/20 responding to any request for public information pertaining to this Agreement, as well as any other disclosure of information required by applicable Texas law. B.) Upon TFS’s written request, Contractor will provide specified public information exchanged or created under this Agreement that is not otherwise excepted from disclosure under Chapter 552, Texas Government Code, to TFS in a non-proprietary format acceptable to TFS. As used in this provision, “public information” has the meaning assigned Section 552.002, Texas Government Code, but only includes information to which TFS has a right of access. C.) Contractor acknowledges that TFS may be required to post a copy of the fully executed Agreement on its Internet website in compliance with Section 2261.253(a)(1), Texas Government Code.

20. Records Retention. Contractor will preserve all contracting information, as defined under Texas Government Code, Section 552.003 (7), related to the Agreement for the duration of the Agreement and for seven years after the conclusion of the Agreement.

21. Conflict of Interest. By executing this Agreement, Contractor and each person signing on behalf of Contractor certifies, and in the case of a sole proprietorship, partnership or corporation, each party thereto certifies as to its own organization, that to the best of their knowledge and belief, no member of The A&M System or The A&M System Board of Regents, nor any employee, or person, whose salary is payable in whole or in part by The A&M System, has direct or indirect financial interest in the award of this Agreement, or in the services to which this Agreement relates, or in any of the profits, real or potential, thereof.

22. Prohibition on Contracts with Companies Boycotting Israel. Prohibition on Contracts with Companies Boycotting Israel. To the extent that Texas Government Code, Chapter 2270 applies to this Agreement, PROVIDER certifies that (a) it does not currently boycott Israel; and (b) it will not boycott Israel during the term of this Agreement. PROVIDER acknowledges this Agreement may be terminated and payment withheld if this certification is inaccurate.

23. Certification Regarding Business with Certain Countries and Organizations.

Pursuant to Subchapter F, Chapter 2252, Texas Government Code, Contractor certifies it is not engaged in business with Iran, Sudan, or a foreign terrorist organization.

Contractor acknowledges this Agreement may be terminated if this certification is inaccurate.

24. Prohibition on Contracts Related to Persons Involved in Human Trafficking.

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

25. Work Made for Hire. Any work performed by Contractor shall be considered a “Work Made for Hire” as defined in the Copyright Law of the United States, and shall be owned by and for the express benefit of TFS, including but not limited to, the right to make changes to the work as TFS deems necessary. In the event it should be established that such work does not qualify as a Work Made for Hire, Contractor agrees to and does hereby assign to TFS all of Contractor’s right, title, and interest in such work product including, but not limited to, all copyrights and other proprietary rights.

26. Access to Agency Data. Pursuant to Section 2054.138, Texas Government Code, Contractor shall implement and maintain appropriate administrative, technical, and physical security measures, including without limitation, the security controls available at 5002 Security Req for Info Resources.docx (live.com), as may be amended from time to time (the “Security Controls”), to safeguard and preserve the confidentiality, integrity, and availability of TFS’s data.

Contractor shall periodically provide TFS with evidence of its compliance with the Security Controls within thirty (30) days of TFS’s request.

27. Cloud Computing Services. As of the Effective Date, Contractor represents and warrants that it complies with the then-current requirements of the risk and authorization management program established by the Texas Department of Information Resources (“RAMP”). Pursuant to Section 2054.0593, Texas Government Code, Contractor shall maintain RAMP compliance and certification, as may be amended from time to time, throughout the Term, including any renewal term of this Agreement. Contractor shall provide TFS with evidence of its RAMP compliance and certification within thirty (30) days of TFS’s request and at least thirty (30) days prior to the start of any renewal term of this Agreement.