Exhibit D - Contract.pdf

State of Washington [describe acquisition] Department of Transportation i Contract # [KXXX]

Face Sheet WSDOT Contract Number: KXXXX Contractors Contract Number:

<Project Title>

1. Contractor 2. Contractor Representative

Name:

Dba Name:

PO Box XXXXX, City, State, Zip-XXXX Address, Street City

Name:

Title:

Phone:

Email:

3. WSDOT 4. WSDOT Representative

7345 Linderson Way SE Tumwater, WA 98501-7409

Name:

Title:

Phone:

Email:

5. Contract Amount 6. Funding Source 7. Start Date 8. End Date $ Federal: State: Other: N/A: Month Day, Year Month Day, Year

9. Federal Funds (as applicable) Federal Agency:

10. Tax ID # 11. SWV # 12. UBI # 13. UEI #

14. Contract Purpose

WSDOT, defined as the Department of Transportation, and the Contractor, as defined above, acknowledge and accept the terms of this Contract and Attachments and have executed this Contract on the date below and warrant they are authorized to bind their respective agencies. The rights and obligations of both parties to this Contract are governed by this Contract and the following documents incorporated by reference: Contractor Terms and Conditions including Attachment “A” – Scope of Work, Attachment “B” – Cost of Services

FOR CONTRACTOR FOR WSDOT

Name, Title

Signature

Date

Name, Title

Date

APPROVED AS TO FORM ONLY

BY ASSISTANT ATTORNEY GENERAL

APPROVAL ON FILE

Exhibit D - Contract

State of Washington [describe acquisition] Department of Transportation ii Contract # [KXXX]

[COVER PAGE WORKSHEET, including the following]

PARTIES. This Contract (“Contract”) is entered into by and between the state of Washington, acting by and through the Department of Transportation, an agency of Washington State government (“WSDOT”) located at [WSDOT address], and [Contractor], a [corporation/sole proprietor or other business form] licensed to conduct business in the state of Washington (“Contractor”), located at [Contractor address]

PURPOSE. The purpose of this Contract is for Contractor to develop, implement, deploy, host, license, support, and maintain a configurable Commercial Off-The-Shelf (COTS)/Software as a Service (SaaS) system (“System”) that [describe how System provides solution to WSDOT’s business needs]. Contractor will also provide maintenance and support services to WSDOT in accordance with this Contract.

SPECIAL TERMS AND CONDITIONS

Recitals

The state of Washington, acting by and through WSDOT, issued an RFQQ 2025 0501 dated May 1st, 2025, in accordance with its authority under chapter 39.26 RCW.

[Contractor] submitted a timely Response to WSDOT’s [RFX].

WSDOT evaluated all properly submitted Responses to the above-referenced RFQQ 2025 0501 and has identified [Contractor] as the apparently successful Contractor.

WSDOT has determined that entering into a Contract with [Contractor] will meet WSDOT’s needs and will be in WSDOT’s best interest.

NOW THEREFORE, WSDOT awards to [Contractor] this Contract, the terms and conditions of which shall govern Contractor’s furnishing to WSDOT the Services as set forth in [attached schedules, including Statement of Work] and in accordance with the terms and conditions of this Contract. This Contract is not for personal use.

IN CONSIDERATION of the mutual promises as hereinafter set forth, the parties agree as follows:

1. Definitions

[Add or delete items so that only those definitions that are pertinent to this Contract are included.]

The following terms as used throughout this Contract shall have the meanings set forth below.

“Acceptance” or “Accept” shall mean that the materials, supplies, services, and/or equipment furnished under this Contract conform to the Acceptance Criteria.

“Acceptance Criteria” shall mean the conditions that a Deliverable must satisfy in order to be accepted by WSDOT.

“Acceptance Test” shall mean the process for that ascertaining the materials, supplies services, and/or equipment furnished under this Contract meet the Acceptance Criteria.

“Business Days and Hours” shall mean Monday through Friday, 8:00 a.m. to 5:00 p.m., Pacific Time, except for holidays observed by the state of Washington.

“Confidential Information” shall mean information that may be exempt from disclosure to the public or other unauthorized persons under either chapter 42.56 RCW or other state or federal statutes. Confidential Information includes, but is not limited to, names, addresses, Social Security numbers, e-mail addresses, telephone numbers, financial profiles, credit card information, driver’s license numbers, medical data, law enforcement records, agency source code or object code, agency security data, or [add other items as necessary or delete items not applicable].

“Contract” shall mean this document, all schedules and exhibits, and all amendments hereto.

“Contractor” shall mean [Contractor], its employees and agents. Contractor also includes any firm, provider, organization, individual, or other entity performing the business activities under

State of Washington LiDAR Processing Department of Transportation 2 Contract # [KXXX] this Contract. It shall also include any Subcontractor retained by Contractor as permitted under the terms of this Contract.

“Contractor Contracting Officer” shall mean [title of Contractor officer with signature authority], or the person to whom signature authority has been delegated in writing. This term includes, except as otherwise provided in this Contract, an authorized representative of Contractor Contracting Officer acting within the limits of the authorized representative’s authority.

“Defect” shall mean any error, flaw, failure, omission, or fault in a Deliverable that causes the Deliverable to not conform to its Specifications or to interfere with WSDOT system operations.

“Deliverable” shall mean any measurable, tangible, verifiable outcome, result, or item which is prepared by the Contractor for WSDOT (either independently, or in concert with WSDOT or third parties) during the course of the Contractor’s performance under this Contract, including, without limitation, deliverables described in the Statement of Work, [RFX], and the Response.

“Effective Date” shall mean the first date this Contract is in full force and effect. It may be a specific date agreed to by the parties; or, if not so specified, the date of the last signature of a party to this Contract.

“Proprietary Information” shall mean information owned by Contractor to which Contractor claims a protectable interest under law. Proprietary Information includes, but is not limited to, information protected by copyright, patent, trademark, or trade secret laws, and intellectual property owned by Contractor relating to designs, configurations, toolings, documentation, recorded data, schematics, circuits, mask works, layouts, source code, object code, master works, master databases, algorithms, flow charts, formulae, works of authorship, mechanisms, research, manufacture, improvements, assembly, and installations.

“RCW” shall mean the Revised Code of Washington.

“[RFX]” shall mean the Request for [Proposal/Quotation/Qualifications and Quotation] used as a solicitation document to establish this Contract, including all its amendments and modifications.

“Response” shall mean Contractor’s Response to WSDOT’s [RFX] for [describe acquisition].

“Services” shall mean those Services provided under this Contract and related to the System that are appropriate to the scope of this Contract and includes on-going maintenance and support services after Acceptance, implementation, and deployment of the System as described in the Statement of Work.

“Software” shall mean the object code version of computer programs licensed pursuant to this Contract, or custom computer programs created or modified for WSDOT use pursuant to this Contract. Software also means the source code version, where provided by the Contractor.

Embedded code, firmware, internal code, microcode, and any other term referring to software residing in the equipment that is necessary for the proper operation of the equipment is not included in this definition of Software. Software includes all prior, current, and future versions of the Software and all maintenance updates and error corrections.

“Specifications” shall mean the technical, functional, and other specifications set forth in the Statement of Work, [RFX], and the Response.

“Subcontractor” shall mean one not in the employment of Contractor, who is performing all or part of the business activities under this Contract under a separate contract with Contractor. The term “Subcontractor” means Subcontractor(s) of any tier.

Department of Transportation 3 Contract # [KXXX]

“System Acceptance” shall mean the Contractor has provided to WSDOT all documentation and other Deliverables relating to the System at the end of the project according to the system acceptance process set forth in this Contract.

“Work Product” shall mean data and products produced under this Contract including but not limited to, discoveries, formulae, ideas, improvements, inventions, methods, models, processes, techniques, findings, conclusions, recommendations, reports, designs, plans, diagrams, drawings, Software, databases, documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes, and/or sound reproductions, to the extent provided by law. One or more Work Products may collectively form a Deliverable.

“WSDOT” shall mean the state of Washington, any division, section, office, unit or other entity of WSDOT or any of the officers or other officials lawfully representing WSDOT.

“WSDOT [Project or Business] Manager” shall mean the person designated by WSDOT who is assigned as the primary contact person whom Contractor’s Account Manager shall work with for the duration of this Contract and as further defined in the section titled WSDOT [Project or Business] Manager.

“WSDOT Contracting Officer” shall mean [name of WSDOT’s officer with signature authority,], or the person to whom signature authority has been delegated in writing. This term includes, except as otherwise provided in this Contract, an authorized representative of the WSDOT Contracting Officer acting within the limits of the authorized representative’s authority.

2. Statement of Work Schedule A, attached hereto and incorporated by reference, contains the Statement of Work governing work and the Deliverables to be performed under this Contract, the nature of the working relationship between WSDOT and the Contractor, and specific obligations of both parties. The Contractor will also provide on-going maintenance and support services after Acceptance, implementation, and deployment of the System as described in the Statement of Work.

Contract Term

3. Period of Performance This contract shall be effective as of [date of start of Contract] or date of execution, whichever is later, through [end of initial term] (the “Initial Term”), unless extended as provided herein.

WSDOT shall have the right to extend the contract for [maximum number of extensions] [length of extension] year periods (“Options”). WSDOT shall exercise such Options by giving Contractor notice of its intent to exercise the Option in writing no later than [days/months] prior to the end of the then-current Contract term. If such Option is exercised, the parties shall execute an amendment, and the Contract shall continue under the terms then in place for the additional period. The phrase “term of this Contract” shall mean the Initial Term and any Options exercised by WSDOT.

4. Survivorship

All transactions executed pursuant to the authority of this Contract shall be bound by all of the terms and conditions set forth herein, notwithstanding the expiration of the Initial Term of this Contract or any extension thereof. Further, the terms, conditions and warranties contained in this

Department of Transportation 4 Contract # [KXXX]

Contract that by their sense and context are intended to survive the completion of the performance, cancellation or termination of this Contract shall so survive, including, without limitation, the following sections: [list sections] Insurance; WSDOT Data; Contractor’s Ownership Rights; System Security and Recovery; Warranties; Transition Services; Access to Data; Confidentiality/Safeguarding of Information; Copyright Provisions; Disallowed Costs;

Disputes; Governing Law; Indemnification and Hold Harmless; Overpayment to Contractor;

Privacy; Publicity; Remedies; Right of Inspection; Treatment of Assets; Section Headings, Incorporated Documents and Order of Precedence.

Compensation, Invoice and Payment

5. Compensation

5.1. Total consideration payable to the Contractor for satisfactory performance of the work under this Contract for the Initial Term is up to a maximum of [___] dollars [$____] [specify maximum dollar amount]. Of the total amount, [___] dollars [$____] is available and must be spent on or before June 30, [year] due to the funding source. Any Options to extend this contract will be funded annually through an amendment to the Contract.

5.2. Contractor’s compensation for services rendered shall be based on the Deliverable and Compensation Tables and other requirements outlined in Schedule A.

5.3. WSDOT shall retain a holdback of ten percent (10%) from the payments due on each invoice (“Holdback Funds”). WSDOT shall pay the Holdback Funds upon final System Acceptance. WSDOT shall pay the Holdback Funds upon receipt of an invoice for the applicable Holdback Funds amount due. All payments of Holdback Funds are subject to WSDOT’s exercise of its remedies herein and as provided under the law.

5.4. Upon System acceptance, this contract shall convert to a service rendered (meaning maintenance term) contract, the compensation will based on vendors fee schedule attached hereto.

5.5. Travel, if indicated in Exhibit A- Scope of Work, will only be paid at the behest/discretion of WSDOT for work performed regarding Exhibit A- Scope of Work.

Per diem, accommodations, and other travel related items will only be paid provided that such costs must be agreed to in writing, in advance, and in accordance with the Washington Office of Financial Management’s State Administrative & Accounting Manual (SAAM), Chapter ten (10).

6. Taxes

6.1. All payments accrued because of payroll taxes, unemployment contributions, any other taxes, insurance or other expenses for the Contractor or its staff shall be the sole responsibility of the Contractor.

6.2. Where required by statute or regulation, Contractor shall pay for and maintain in current status all taxes that are necessary for Contract performance. Contractor is required to collect and pay Washington state sales and use taxes, as applicable, imposed on the services and materials acquired hereunder. Contractor must pay all other taxes including

Department of Transportation 5 Contract # [KXXX] without limitation Washington Business and Occupation Tax, other taxes based on Contractor’s income or gross receipts, or personal property taxes levied or assessed on Contractor’s personal property. WSDOT, as an agency of Washington State government, is exempt from property tax.

7. Invoice and Payment

7.1. The Contractor shall submitt all invoices to

WSDOTOITVENDORPAYMENTS@WSDOT.WA.GOV

7.2. WSDOT will pay Contractor in Accordance with the Deliverable and Compensation Tables and other requirements set forth in Schedule A, and receipt of properly completed invoices and other documentation required in this section. No payment will be made to Contractor for Deliverables unless they have been accepted by WSDOT.

7.3. The invoices shall describe and document, to WSDOT’s satisfaction, a description of the work or services performed, Deliverables and activities accomplished, previously provided WSDOT written Acceptance of such Deliverables, the progress of the project, and any associated fees. The invoice shall include the WSDOT Contract number [XXX-

XXX-XXX].

7.4. Incorrect or incomplete invoices will be returned by WSDOT to Contractor for correction and reissue.

7.5. Payment shall be considered timely if made by WSDOT within thirty (30) calendar days after receipt of properly completed invoices and other required documentation, or within thirty (30) calendar days after release of the Gated Funding for the applicable Deliverables, whichever is later.

7.6. Payment shall be sent to the address designated by the Contractor. or thorugh the Statewide Vendor Payment System

7.7. WSDOT may, in its sole discretion, terminate the contract or withhold payments (or both) claimed by the Contractor for services rendered if the Contractor fails to satisfactorily comply with any term or condition of this contract.

8. Insurance

8.1. Contractor shall, during the course of this Contract, maintain in full force and effect the insurance described in this section. Failure to buy and maintain the required insurance may, at WSDOT’s sole option, result in this Contract’s termination.

8.2. The minimum acceptable limits shall be as indicated below, with no deductible for each of the following categories:

a) Commercial General Liability (CGL) insurance with a limit of not less than $1,000,000 per each occurrence or $2,000,000 general aggregate. All insurance must cover liability arising out of premises, operations, independent contractors, products completed operations, personal injury and advertising injury, and liability assumed under an insured contract (including the tort liability of another party assumed in a business contract).

b) Business Automobile Liability (owned, hired, or non-owned) covering the risks of bodily injury (including death) and property damage, with a combined single limit of

Department of Transportation 6 Contract # [KXXX] not less than $1,000,000 per accident. Such insurance must cover liability arising out of “Any Auto” and must be endorsed to provide contractual liability coverage and cover a “covered pollution cost or expense.”

c) Employer’s liability (“Stop Gap”) Insurance covering the risk of Contractor’s employee’s bodily injury by accident or disease with limits of not less than $1,000,0000 per employee for bodily injury by accident and $1,000,000 per employee for bodily injury by disease.

d) Umbrella policy providing excess limits over the primary policies in an amount not than $3,000,000.

e) Professional Liability Errors and Omissions, including coverage for product failure, security failure, personal injury, and professional liability with limits of not less than $5,000,000 per claim and $10,000,000 annual aggregate.

f) Crime Coverage with a deductuble not to exceed $100,000, conditioned upon this Section, and coverage of not less than $1,000,000 single limit per occurrence, which shall at a minimum cover occurrences falling in the following categories: Computer Fraud; Forgery; Money and Securities; and Employee Dishonesty.

g) Cyber Liability Insurance with limits of not less than $10,000,000 per claim for First and Third Party coverage. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Contractor in this Contract and shall include, but not be limited to, claims involving security breach, system failure, data recovery, business interruption, cyber extortion, social engineering, infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, and alteration of electronic information. The policy shall provide coverage for breach response costs, regulatory fines and penalties as well as credit monitoring expenses. The Cyber Liability Insurance shall be sufficient to cover the costs of a potential data security breach involving all WSDOT’s data at any Contractor location or downstream Contractor location.

8.3. Contractor shall acquire such insurance from an insurance carrier or carriers licensed to conduct business in the State of Washington having a rating of A-, Class VII or better.

Any exception must be reviewed and approved by WSDOT. If an insurer is not admitted to do business in the State of Washington, all insurance policies and procedures for issuing the insurance policies must comply with Chapters 48.15 RCW and 284-15 WAC.

8.4. If Contractor is self-insured, evidence of its status as a self-insured entity shall be provided to WSDOT. The evidence should demonstrate that Contractor’s self-insurance meets all of the required insurance coverage of this Contract to the satisfaction of WSDOT, including the description of the funding mechanism and its financial condition.

If the funding mechanism or financial condition of the self-insurance program of Contractor is inadequate, then WSDOT may require the purchase of additional commercial insurance to comply with this Contract.

8.5. Contractor shall pay premiums on all insurance policies. Such insurance policies shall name WSDOT, its officials, agents, and employees as an additional insured on all general liability, automobile liability, and umbrella policies. Such policies shall also reference this Contract number [KXXX].

Department of Transportation 7 Contract # [KXXX]

8.6. All insurance provided by Contrator shall be primary as to any other insurance or self-insurance programs afforded to or maintained by the State of Washington and shall include a severability of interests (cross-liability) provision.

8.7. The insurance policies shall have a condition that they not be cancelled or non-renewed by the insurer until forty-five (45) calendar days after notice of intended cancellation or non-renewal shall have been given to WSDOT by the insurer. In the event of cancellation, non-renewal, revocation, or other termination of any insurance coverage required by this Contract, Contractor shall provide written notice of such to WSDOT within one (1) Business Day of Contractor’s receipt of such notice.

8.8. Contractor shall include all Subcontractors as insured under all required insurance policies, or shall furnish separate certificates of insurance and endorsements for each Subcontractor. Subcontractor(s) shall comply fully with all insurance requirements stated herein. Failure of Subcontractor(s) to comply with insurance requirements does not limit Contractor’s liability or responsibility.

8.9. Contractor shall furnish to WSDOT copies of certificates of all required insurance within thirty (30) calendar days of this Contract’s Effective Date and copies of renewal certificates of all required insurance within thirty (30) days after the renewal date. These certificates of insurance must expressly indicate compliance with each and every insurance requirement specified in this section. Failure to provide evidence of coverage may, at WSDOT’s sole option, result in this Contract’s termination.

8.10. Contractor waives all rights of subrogation against the State of Washington for recovery of damages to the extent such damages are covered by general liability, excess, or umbrella insurance maintained pursuant to this Contract.

Ownership and Rights in Data

9. WSDOT Data

9.1. Ownership of WSDOT Data. Notwithstanding anything herein contained to the contrary, WSDOT shall own all right, title, and interest in data that is created within or entered into the System, and any data provided by or on behalf of WSDOT that relates to this Contract (“WSDOT Data”). “WSDOT Data” includes without limitation any and all information, data, materials, works, expressions, or other content, including any that are

(a) uploaded, submitted, posted, transferred, transmitted, or otherwise provided or made available by or on behalf of WSDOT, or (b) collected, downloaded, stored, or otherwise received pursuant to this Contract. All processed data, output, copies, reproductions, improvements, modifications, adaptations, translations, and other derivative works of, based on, derived from, or otherwise using any WSDOT Data or the System are themselves also WSDOT Data.

9.2. Limits on Contractor’s Use of WSDOT Data. Contractor may only use WSDOT Data as strictly necessary to provide the services to WSDOT under this Contract, and for no other purpose. Contractor shall not create any separate database containing any WSDOT Data derived from the System without express consent of WSDOT. Contractor shall not use any WSDOT Data to solicit, directly or indirectly, individuals to become customers of Contractor, its affiliates, or Subcontractors, nor disclose, give, sell, or inform any and all other third parties of WSDOT Data without the express written consent of WSDOT or

Department of Transportation 8 Contract # [KXXX] as required by law. [This obligation shall survive and extend beyond the terms of this agreement.]

9.3. WSDOT’S Access to WSDOT Data. During the term of this Contract, WSDOT may download or otherwise retrieve a complete copy of all WSDOT Data entered into or created within the System in an industry-standard, non-proprietary format whenever WSDOT chooses, without charge and without any approval of, or action by, the Contractor.

9.4. Protection of WSDOT Data.

a) Protection of personal privacy and data shall be an integral part of the business activities of the Contractor. Contractor acknowledges that some of the material and information that may come into its possession or knowledge in connection with this Contract or its performance may consist of Confidential Information. Contractor agrees to hold Confidential Information in strictest confidence and not to make use of Confidential Information for any purpose other than the performance of this Contract, to release it only to authorized employees or Subcontractors requiring such information for the purposes of carrying out this Contract, and not to release, divulge, publish, transfer, sell, disclose, or otherwise make it known to any other party without WSDOT’s written consent or as provided by law.

b) The Contractor shall implement and maintain appropriate administrative, technical, and organizational security measures to safeguard against unauthorized use of WSDOT Data, including Confidential Information. Such security measures shall be in accordance with recognized industry and as provided in this Contract.

c) At no time shall any data or processes that either belong to or are intended for the use of WSDOT or its officers, agents, or employees be copied, disclosed, or retained by the Contractor or any party related to the Contractor for subsequent use in any transaction that does not include WSDOT.

d) The use or disclosure by Contractor of any non-public and non-Contractor information concerning WSDOT for any purpose not directly connected with the administration of WSDOT’s or the Contractor’s responsibilities with respect to services provided under the Contract is prohibited except by prior written consent of WSDOT. The Contractor shall maintain as confidential all non-public and non-Contractor information concerning WSDOT, as well as the business of WSDOT, its financial affairs, relations with its clientele and its employees, and any other information, which may be specifically classified as confidential by WSDOT in writing to the Contractor.

9.5. Return of WSDOT Data. Upon expiration or termination for any reason of this Contract, and full completion of the Transition Services as required under this Contract, Contractor shall return all WSDOT Data in an industry-standard format and non-proprietary format, and shall delete all other copies of WSDOT Data in its possession.

WSDOT Data shall be permanently deleted and shall not be recoverable, according to methods approved by the National Institute of Standards and Technology (NIST). The Contractor shall provide certificates of destruction to WSDOT at WSDOT’s request.

9.6. Notification of Legal Requests. The Contractor shall notify WSDOT upon the Contractor’s receipt of any electronic discovery, litigation holds, discovery searches, and expert testimonies related to WSDOT Data or which in any way might reasonably require access to WSDOT Data. The Contractor shall not respond to subpoenas, service of process, or other legal requests related to WSDOT without first notifying and obtaining the approval of WSDOT, unless prohibited by law from providing such notice.

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10. Contractor’s Ownership Rights

10.1. Preexisting Material. Any pre-existing or independently created material that the Contractor uses to perform the Contract, but which is not created or produced for WSDOT (“Preexisting Material”) is owned by the Contractor and is not “work made for hire” under the U.S. Copyright Act, 17 U.S.C. §101 et seq. The Contractor shall exert all reasonable effort to advise WSDOT at the time of delivery of any Preexisting Material furnished under this Contract, of all known or potential infringements of publicity, privacy or of intellectual property contained therein and of any portion of such document which was not produced in the performance of this Contract. The Contractor agrees to obtain, at its own expense, express written consent of the copyright holder for the inclusion of Preexisting Material. WSDOT shall receive prompt written notice of each notice or claim of copyright infringement or infringement of other intellectual property right worldwide received by the Contractor with respect to any Preexisting Material delivered under this Contract. WSDOT shall not have the right to modify or remove any restrictive markings placed upon the Preexisting Material by the Contractor. Preexisting Material does not include WSDOT Data. Contractor grants to WSDOT a nonexclusive, royalty free, perpetual, irrevocable, worldwide license to use, modify, display, create derivative works of, and copy any Preexisting Materials included in the System to the extent necessary to enable the full use and/or benefit of the System pursuant to the terms of the Contract.

10.2. Custom Services. If this Contract involves custom service, the below subsections (a) through (d) apply.

a) WSDOT and the Contractor agree that all Work Product produced pursuant to this Contract shall be considered work made for hire under the U.S. Copyright Act, 17 U.S.C. §101 et seq., and shall be owned by WSDOT. The Contractor is hereby commissioned to create the Work Product. Work Product includes, but is not limited to, discoveries, formulae, ideas, improvements, inventions, methods, models, processes, techniques, findings, conclusions, recommendations, reports, designs, plans, diagrams, drawings, Software, databases, documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes, and/or sound reproductions, to the extent provided by law. Ownership includes the right to copyright, patent, register and the ability to transfer these rights and all information used to formulate such Work Product. Work Product includes any custom additions and modifications to Contractor’s pre-existing material.

b) If for any reason the Work Product would not be considered a work made for hire under applicable law, the Contractor assigns and transfers to WSDOT the entire right, title and interest in and to all rights in the Work Product and any registrations and copyright applications relating thereto and any renewals and extensions thereof.

c) The Contractor shall execute all documents and perform such other proper acts as WSDOT may deem necessary to secure for WSDOT the rights pursuant to this section.

d) The Contractor shall not use or in any manner disseminate any Work Product to any third party, or represent in any way Contractor ownership in any Work Product, without the prior written permission of WSDOT. The Contractor shall take all reasonable steps necessary to ensure that its agents, employees, or Subcontractors shall not copy or disclose, transmit or perform any Work Product or any portion thereof, in any form, to any third party.

Department of Transportation 10 Contract # [KXXX]

10.3. Commercial Off-The-Shelf. If this Contract involves commercial off-the-shelf products without customization (hereafter “Commercial Off-The-Shelf”), the below sections (a) through (c) apply.

a) The Contractor shall maintain all title, copyright, and other proprietary rights in the Commercial Off-The-Shelf Software. WSDOT does not acquire any rights, express or implied, in the Commercial Off-The-Shelf Software, other than those specified in this Contract. If applicable, the Commercial Off-The-Shelf Software is licensed to WSDOT in accordance with Section 13.5 of this Contract. Contractor hereby warrants and represents to WSDOT that Contractor is the owner of the Commercial Off-The- Shelf Software licensed hereunder or otherwise has the right to grant to WSDOT any licensed rights to the Commercial Off-The-Shelf Software provided by Contractor through this Contract without violating any rights of any third party worldwide.

b) The Contractor represents and warrants that Contractor has the right to license the Commercial Off-The-Shelf Software to WSDOT as provided in this Contract and that WSDOT’s use of the Commercial Off-The-Shelf Software and documentation within the terms of this Contract will not infringe upon any copyright, patent, trademark, or other intellectual property right worldwide or violate any third party’s trade secret, contract, or confidentiality rights worldwide.

c) The Contractor represents and warrants that: (i) Contractor is not aware of any claim, investigation, litigation, action, suit or administrative or judicial proceeding pending or threatened based on claims that the Commercial Off-The-Shelf Software infringes any patents, copyrights, or trade secrets of any third party, and (ii) Contractor has no actual knowledge that the Commercial-Off-The-Shelf Software infringes upon any patents, copyrights, or trade secrets of any third party.

10.4. License to Use System. Contractor hereby grants to WSDOT access to and use of the System on a subscription basis during the term of this Contract. To the extent the System is not owned by WSDOT pursuant to the terms of this Section 13, Contractor grants WSDOT a non-exclusive, non-assignable, non-transferable license to access and use the System for WSDOT’s own internal business purposes, and to grant each Licensed User the right to use the System. To the extent any documentation related to the System is not owned by WSDOT pursuant to the terms of this section, Contractor grants to WSDOT a non-exclusive, non-assignable, and non-transferable license to such documentation. The Licensed Users will be determined by WSDOT based on the terms given in the Statement of Work, at WSDOT’s sole discretion.

10.5. Restrictions of Use. WSDOT shall not, and shall not permit a licensed user or any other person to, directly or indirectly do any of the following:

a) Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying algorithms of the System;

b) Modify, translate, or create derivative works based on any portion of the System, Documentation, or any Deliverables (other than such Deliverables that are owned by WSDOT as expressly agreed to in the relevant SOW);

c) Rent, lease, distribute, license, sublicense, sell, resell, assign, or otherwise commercially exploit any Deliverables (other than Deliverables that are owned by WSDOT as expressly agreed in this Contract), any portion of the System or make any portion of the System available to any person other than Licensed Users;

Department of Transportation 11 Contract # [KXXX]

d) Tamper with the security of any portion of the System; however, this restriction shall not prohibit security audits, which may include penetration testing, with advanced notice; or

e) Knowingly access data on or available through the System not intended for WSDOT or Licensed Users.

Nothing in these restrictions shall be deemed to limit WSDOT’s rights or Contractor’s obligations set forth in other sections of this Contract.

10.6. End User and Third Party License Contracts: Contractor represents, warrants, and covenants that the Deliverables will not: (a) contain any third party software that is subject to license terms that are different from those provided under the Contract; or (b) include any open source software that creates, as a condition of any use or distribution of the Deliverables in a manner contemplated by the Contract, any obligation under the applicable open source license that (i) requires WSDOT to distribute or make available any source code for the Deliverables or (ii) requires WSDOT to license the Deliverables for purposes of creating derivative works. Any End User Licensing Contracts (EULA) presented by the Contractor are of no legal effect, and have no power to bind WSDOT or any of its representatives or employees.

System Security and Recovery

11. Security of Data.

11.1. WaTech and Agency Security Policy Requirements. All Services provided by Contractor under this Contract, whether implemented in WSDOT’s computer systems and networks or on Contractor’s systems, must be compliant with the applicable security policy and standards of WaTech Policies and Standards, State Technology Manual, including, without limitation, Policy No. 141.10, Securing Information Technology Assets Standards.

11.2. Security Threats and Incidents.

a) Contractor shall provide WSDOT any information necessary for WSDOT to comply with laws applicable to WSDOT, including without limitation, RCW 42.56.590.

Contractor shall comply with all laws relating to security breaches, including without limitation, RCW 19.255.010.

b) Contractor shall provide vulnerability management to ensure the System and all WSDOT Data is protected. If there is a suspected software threat or breach of WSDOT Data, Contractor shall (i) notify WSDOT of the breach or threat immediately (but no later than twenty-four (24) hours) and provide WSDOT with all relevant details of the threat or breach; (ii) investigate the security threat or breach, including without limitation, conducting a root cause analysis, to determine the impact and cause of the breach and provide updates to WSDOT; (iii) promptly provide WSDOT with a corrective action plan, which includes any actions recommended by WSDOT, to ensure a breach does not occur or recur, and Contractor shall implement the plan; and

(iv) cooperate with WSDOT in mitigating the impact of and effects of the data breach.

c) If a data breach occurs, and WSDOT determines that in order to comply with applicable law or that notification of affected individuals is otherwise appropriate, Contractor shall be responsible for all related costs and expenses, including without limitation, those costs and expenses related to: (i) the preparation of and sending such

Department of Transportation 12 Contract # [KXXX] notifications and other communications; (ii) establishing a call center or other communications procedures in response to the data breach; (iii) public relations and other crisis management services; (iv) legal and accounting fees associated with WSDOT’s investigation of, and response to, the data breach, (v) facilitating any notification actions required by WSDOT and the law; (vi) credit restoration of any affected individuals; (vii) credit monitoring and reporting services for at least two (2) years. Contractor shall provide WSDOT any information necessary for WSDOT to assess the threat or breach or threat.

11.3. WSDOT Data Location.

a) The Contractor warrants that the System and the storage of WSDOT Data will be hosted in the United States. No offshoring of the System or WSDOT Data is allowed under this Contract.

b) The Contractor shall not allow its personnel or contractors to store WSDOT Data on portable devices, including personal computers, except for devices that are used and kept only at its data centers located within Continental United States. The Contractor shall permit its personnel and Subcontractors to access WSDOT Data remotely only as required to provide technical support.

11.4. Security Audits and Pen Test.

a) WSDOT (or another State agency or third party auditor) shall have the right to periodically audit the Contractor’s internal controls and systems as necessary to validate that Contractor’s security program is sufficient to prevent unauthorized access to data.

b) Contractor shall allow WSDOT (or another State agency or a third party) to perform a penetration test (pen test) at least annually or after significant changes to examine the System, its security features, and policies are effective. WSDOT will provide Contractor with 30 days’ notice of any pen test. Contractor shall remediate any security deficiencies or vulnerabilities identified in an audit or pen test.

c) The Contractor shall perform an independent audit of its data centers at least annually at its expense and provide an unredacted version of the audit report to WSDOT upon WSDOT’s request. The Contractor may remove its Proprietary Information from the unredacted report.

d) A Service Organization Control (SOC) 2 audit report or approved equivalent sets the minimum level of a third-party audit under this section.

11.5. Additional Security Requirements. Additional Security requirements are set forth in Schedule A and Schedule B of this Contract.

12. Disaster Recovery and Backups

12.1. Disaster Recovery.

a) The System shall support high availability and disaster recovery to support standards required by WaTech Policies and Standards, including, without limitation, WaTech Service Catalog – SEC-12 - Information Technology Disaster Recovery Planning for Continuity of Operations Planning (COOP). High availability shall be supported and enabled through configuration. Disaster recovery shall be capable of supporting a Recovery Point Objective (RPO) of four hours. Disaster recovery shall be capable of supporting a Recovery Time Objective (RTO) of two hours.

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b) For purposes of this provision, the following definitions apply. (i) “Recovery Point Objective” (RPO) means the point in time, prior to a disruption or outage, to which essential data can be recovered after an outage. This defines the maximum level of data loss that is acceptable in the event of an outage or incident. (ii) “Recovery Time Objective” (RTO) means the period of time following an event within which a service or activity must be resumed or a technology resource recovered.

12.2. System Restoration. In the event of a natural disaster or complete System failure, Contractor will perform data, application, and network recovery procedures and will restore the System to operational functionality within forty-eight (48) hours of a disaster unless delays are beyond the reasonable control and without fault of negligence of Contractor.

12.3. Disaster Rehearsals. Contractor shall conduct disaster recovery rehearsals or tests at least annually, and WSDOT shall have the right to participate in or witness such disaster recovery testing, at WSDOT’s option. Contractor shall provide WSDOT a report detailing the results of its disaster recovery rehearsals or tests. If the disaster recovery rehearsals or tests demonstrate that the RTO or RPO or other elements of the Contractor’s disaster recovery plan are not met, Contractor shall determine the cause of the failure, promptly correct such cause, and conduct a new rehearsal or test to confirm that Contractor’s corrections were successful.

12.4. System Backups. The Contractor shall perform application and data backups of the System using industry standards, policies and best practices. The Contractor shall perform a full backup to accommodate the needs of the System and shall retain each back up in accordance with WSDOT requirements. Backups of Confidential Information (if any) supplied under this Contract shall be backed up by Contractor using industry standard encryption modules validated by the National Institute of Standards and Technology (NIST). Nothing in the Contract shall limit WSDOT’s right to perform its own backups of the System. Contractor shall provide WSDOT a system backup schedule.

12.5. Additional Disaster Recovery Requirements. Additional Details about Contractor’s Disaster Recovery Plan are in Schedule B.

Deliverables, Acceptance, and Transition

13. Delivery

13.1. Contractor shall deliver the Deliverables pursuant to the Contract on or before the applicable delivery dates in the Statement of Work. All such deliveries made pursuant to the Contract must be complete. Contractor shall deliver electronic versions of the Deliverables in formats agreed to by the parties. Deliverables provided in physical packages, if any, must be accompanied by a packing slip which identifies all items included.

13.2. Upon receipt of a Deliverable and receipt of confirmation from Contractor that the Deliverable meets the applicable Acceptance Criteria, WSDOT will, with Contractor’s assistance and in accordance with the applicable time periods defined below, review the Deliverable and perform Acceptance Tests on the Deliverable, as applicable, to determine whether the Deliverable conforms to its Acceptance Criteria. By submitting confirmation for a Deliverable, Contractor represents that, to the best of its knowledge, it has

Department of Transportation 14 Contract # [KXXX] performed the associated tasks to complete the Deliverable and that the Deliverable complies with its Acceptance Criteria.

14. Acceptance of Deliverables

14.1. WSDOT will provide Acceptance for a Deliverable if:

a) The Acceptance Criteria have been satisfied and there are no Defects;

b) Contractor has provided to WSDOT all documentation relating to the Deliverable; and

c) The WSDOT Project Manager, or the Project Manager’s designee, has provided written confirmation that the conditions specified in subsections (a) and (b) have been satisfied.

d) If the requirements of subsections (a) and (b) above are satisfied, the WSDOT Project Manager, or the Project Manager’s designee, shall promptly (but in no event more than forty-five (45) Calendar days following Contractor’s written certification that the requirements of subsections (a) and (b) are satisfied) provide written confirmation required in subsection (c).

14.2. Nothing else, including WSDOT’s use of the System, or any component thereof, in a live, production environment shall constitute Acceptance, affect any rights and remedies that may be available to WSDOT and/or constitute or result in Acceptance. By giving Acceptance for a Deliverable, WSDOT represents only that it has reviewed the Deliverable and detected no Defects to warrant the withholding of Acceptance for the work completed.

14.3. WSDOT’s approval of a submitted Deliverable will not limit WSDOT’s right to identify and report Defects or deficiencies to Contractor for resolution under the terms of the Contract. Acceptance is not synonymous with System Acceptance, which may only occur at the end of the Project, and according to the System Acceptance process set forth herein.

14.4. If a Defect is found in a Deliverable, WSDOT will notify Contractor in an email or other document with a consolidated list of the Defects that forms the basis of WSDOT’s decision to reject the Deliverable. Contractor shall correct Defects and resubmit a corrected Deliverable to WSDOT, and WSDOT will review the Deliverable and perform Acceptance Tests on the Deliverable to verify whether the Defects have been corrected and that the Deliverable lacks Defects. WSDOT shall either give its Acceptance or reject the Deliverable in writing, following such review or Acceptance Tests. The time periods for WSDOT’s review of Deliverables, correcting Defects by Contractor, and WSDOT reviewing and retesting corrected Deliverables will be as set forth in the applicable Statement of Work, or if no such time period is included, each such period of time shall be ten (10) Business Days.

14.5. If Contractor is unable to correct all Defects within the applicable time period, WSDOT may, at its option:

a) Continue reviewing the Deliverable and performing Acceptance Tests on the Deliverable and require Contractor to continue until Defects are corrected or eliminated;

b) Request Contractor to provide, at its expense, a replacement Deliverable for further review or Acceptance Tests; or

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c) After completion of the process set forth in this Contract and providing notice of default to Contractor, terminate the Contract.

d) WSDOT’s election of a remedy under this section shall not limit its remedies under this Contract or any other legal remedies available to WSDOT.

15. Updates and Upgrades

15.1. Contractor shall provide and install regular updates, patches, bug/security fixes, etc.

(“updates”) to underlying technologies. These updates are included in the licensing, maintenance, and support Deliverables that will be provided by Contractor, and there shall be no additional costs for such updates. Contractor shall notify WSDOT of any Software or system updates during the term of this Contract. Updates shall not reduce the functionality of or degrade the System.

15.2. Contractor shall provide any upgrades/new versions to the underlying Software or System. These upgrades/ new versions are included in the licensing, maintenance, and support Deliverables that will be provided by Contractor, and there shall be no additional costs for such upgrades/ new version. Contractor shall notify WSDOT of any Software or System upgrades during the term of this Contract Upgrades/new versions shall not reduce the functionality of or degrade the System.

16. Project Completion and System Acceptance.

The following conditions are required for System Acceptance: (a) Deliverable Acceptance has been achieved for the Deliverables and the entire System; (b) Contractor has provided to WSDOT all documentation and other Deliverables relating to the System; (c) Contractor has fulfilled its obligations relating to the transfer of knowledge; and (d) the WSDOT Project Manager or the Project Manager’s designee, has provided written confirmation that the conditions specified in subsections (a)…