Exhibit J_Master Contract Template.docx

Information Technology Solution Contract between

Virginia Department of Education and

Supplier

Note: This public body does not discriminate against faith-based organizations in accordance with the Code of Virginia, § 2.2-4343.1.

Master Solution Contract Template for RFPs Q02FY26 INFORMATION TECHNOLOGY Solution Contract Table of Contents

XX-XXX-XXX Page iv Master Solution Contract Template for RFPs Q02FY265 INFORMATION TECHNOLOGY Solution Contract

THIS INFORMATION TECHNOLOGY Solution CONTRACT (“Contract”) is entered into by and between VIRGINIA DEPARTMENT OF EDUCATION (“Agency”), pursuant to § 2.2-2012 of the Code of Virginia, and Supplier Corporation (“Supplier”), a __________ headquartered at, to be effective as of Contract Award Date (“Effective Date”).

1. PURPOSE AND SCOPE

Agency is seeking services that will provide a Child Nutrition Management Information System (CNIMS). This Contract sets forth the terms and conditions under which Supplier shall provide a Child Nutrition Management Information System, including implementation, hosting, maintenance, support, and related services. Supplier shall provide these products and services to all Agency, as defined below.

DEFINITIONS

Capitalized terms used in this Contract have the meaning as provided (i) where each term is used in the Contract unless the term is (ii) set forth in this “Definitions” section below which lists the capitalized terms used in this Contract and provides a definition for the term.

Acceptance The written acknowledgement by Agency of successful delivery and performance by the Supplier of its contractual commitments at the location(s) designated in the applicable order or Statement of Work (“SOW”), including completed and successful acceptance testing in conformance with the Requirements as determined by Agency and set forth in the applicable order or SOW.

Agency The Virginia Department of Education of the Commonwealth of Virginia Claim Any and all losses, damages, claims, demands, proceedings, suits and actions, including any related liabilities, obligations, losses, damages, assessments, fines, penalties (whether criminal or civil), judgments, settlements, expenses (including attorneys’ and accountants’ fees and disbursements), and costs. Collectively, “Claims”.

Code The Code of Virginia, as in effect and amended from time-to-time.

Commonwealth The Commonwealth of Virginia.

Commonwealth Indemnified Parties The Commonwealth and Agency, together with their respective officers, directors, agents, and employees.

Component Any part or service of the Solution, Software, or Deliverable delivered by Supplier under this Contract, including under all orders or SOWs.

Computer Virus Any malicious code, program, malware, or other internal component (e.g., computer virus, computer worm, computer time bomb, or similar component), which could damage, destroy, alter or disrupt any computer program, firmware, or hardware or which could, in any manner, reveal, damage, destroy, alter or disrupt any data or other information accessed through or processed by such software in any manner.

Concurrent Users The maximum number of concurrent active users utilizing the Software at a given point in time.

Confidential Information Non-public proprietary or trade secret information of Supplier or Agency, whether the information is in written, graphic, machine readable or other tangible form, and which at the time of disclosure to any other Party is either (i) marked as being “Confidential” or “Proprietary”; (ii) Health Records; (iii) Personally Identifiable Information, including information about Agency’s employees, contractors, and customers, or Sensitive Data, including PHI; or (iv) information that is protected by statute or other applicable law. “Confidential Information” also includes any (a) information to which the Supplier has access in Agency facilities or Agency’s systems, (b) Work Product and information pertaining to the Work Product, (c) Agency data, Agency software, and systems access codes, and (d) information concerning Agency’s operations, plans, employees, contractors or third party suppliers.

The term “Confidential Information” does not include information that is:

i. in the public domain through no fault of the receiving Party or of any other person or entity that is similarly contractually or otherwise obligated;

ii. obtained independently from a third-party without an obligation of confidentiality to the disclosing Party and without breach of this Contract;

iii. developed independently by the receiving Party without reference to the Confidential Information of the other Party; or

iv. required to be disclosed under The Virginia Freedom of Information Act (§§2.2-3700 et seq. of the Code of Virginia) or similar laws or pursuant to a court order.

Contract This agreement, including all exhibits, schedules, and attachments, including any modifications or amendments thereto, entered into by Agency and Supplier.

Contractor The use of the term “Contractor” in any of the following terms, conditions, links, or IRS Publication 1075 means the same as the term “Supplier” as defined and used in this Contract.

Deliverable Software, Documentation, Components, plans, reports, data, Work Product, and any other materials, items or events, in each case described or itemized as something that is developed, prepared or created and delivered or required to be developed, prepared or created and delivered or made available to Agency or other Agency as part of the Services, Maintenance Services, Licensed Services, Application, Solution, Product, Software, System Software, Supplier Product, or Updates, including the development or creation of Work Product.

Documentation Those materials (including user manuals, training materials, guides, product descriptions, technical manuals, product specifications, supporting materials and Updates) detailing the information and instructions needed in order to allow Agency and its agents to make productive use of the Application, Software, Solution, Product, Service, Licensed Services or Deliverable, including any and all Components, and to implement and develop self-sufficiency with regard to the Application, Software, Solution, Product, Service, Licensed Services or Deliverable, including any and all components, provided by Supplier in fulfilling its obligations under the Contract or as may be specified in any order or SOW issued pursuant to this Contract.

Effective Date The date this Contract goes into full force and effect as set forth in the preamble of this Contract above.

Federal Tax Information (“FTI”) FTI consists of federal tax returns and return information (and information derived from it) that is in the possession or control of Agency, which is covered by the confidentiality protections of the Internal Revenue Code (“IRC”) and subject to the IRC § 6103(p)(4) safeguarding requirements including IRS oversight. FTI is categorized as “Sensitive” but “Unclassified” information and may contain personally identifiable information.

Inventory Record A record of all units of Product covered under warranty or maintenance by type, quantity, and location, including the end date for each unit’s warranty period or maintenance term, as applicable.

Maintenance Coverage Period (“MCP”) The period of time during which Supplier is obligated to provide Maintenance Services for a unit of Software or Product.

Maintenance Level The defined parameters of Maintenance Services, including the times during which, and time-frames in which, Supplier shall respond to a request for Maintenance Services. The available Maintenance Levels are defined in Exhibit C to this Contract or as defined in any Statement of Work or order issued pursuant to this Contract. The actual Maintenance Level for a unit of Software or Product will be set forth in the signed order or Statement of Work for Maintenance Services of that Software or Product referencing this Contract.

Maintenance Services Those services, preventive and remedial, provided or performed by Supplier under the Contract in order to ensure continued operation of the Product, Hardware, or Software, including Software Updates. Maintenance Services include support services. Maintenance Services for Software may include the development of Work Product, if so authorized in the Contract.

Open Source Computer software provided by a creator or community for users of the software to freely inspect, modify, enhance, and distribute the software and its source code. Open Source software operates under a licensing model whereby the copyright holder confers obligations to a user using that work, and all subsequent derivative works.

Original Equipment Manufacturer (“OEM”) The original equipment manufacturer, or in the case of software, the software publisher/licensor of, Maintenance Services, Licensed Services, Application, Solution, Solution Component, Software, System Software, plans, reports, data, Product, and Updates.

Party Supplier, Agency.

Product Hardware, peripherals, and any other equipment, including the System Software, all upgrades, all applicable user documentation, and related accessories as set forth on Exhibit A or as specified in any Statement of Work or order provided pursuant to the Contract.

Protected Health Information (“PHI”) Individually identifiable health information that is (i) transmitted in electronic media, (ii) maintained in electronic media, or (iii) transmitted or maintained in any other form or medium. PHI excludes individually identifiable health information in (a) education records covered by the Family Educational Rights and Privacy Act (20 U.S.C.§ 1232g); (b) records of any student who is 18 years of age or older, or is attending a postsecondary school, that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his professional or paraprofessional capacity, or assisting in that capacity, and that are made, maintained, or used only in connection with the provision of treatment to the student and are not available to anyone other than persons providing such treatment, except that such records may be personally reviewed by a physician or other appropriate professional of the student's choice; and (c) employment records held, in its role as employer, by a health plan, health care clearinghouse, or health care provider that transmits health information in electronic form. (§ 64.2-2100 of the Code) Receipt Agency has physically received or has unfettered access to any Deliverable at the correct “ship-to” location.

Requirements The functional, performance, operational, compatibility, Acceptance testing criteria, and other parameters and characteristics of the Product, Software, Solution, Service(s), Application and Licensed Services and Deliverables, including any and all components, as authorized by any combination of the Contract, as set forth in Exhibit A or the applicable order or SOW, and such other parameters, characteristics, or performance standards that may be agreed upon in writing by the Parties.

Safety Changes Any engineering changes that affect the safety of the Product(s) provided pursuant to this Contract.

Services Any work performed or service provided by Supplier – including the design and development of software and modifications, software updates, solution, products, implementation, installation, maintenance, support, testing, training, or other provision of service – in meeting the Requirements and fulfilling Supplier's obligations under the Contract or, as applicable, under any order or SOW authorized by the scope of the Contract. “Services” includes all functions, responsibilities, activities, and tasks of the Supplier that are an inherent, necessary, or customary part of the Services, or are required for the proper performance or provision of the Services. As permitted by the scope of the Contract, “Services” may include the discovery, creation, or development of Work Product.

Software Any form of data, image, sound and instructions, that include source code and object code, which are stored in a machine-readable format provided by Supplier for on-premises use by an Authorized User pursuant to an order or SOW and any subsequent modification of such programs and code. For COTS Software, “Software” means the programs and code, and any subsequent releases, provided by Supplier under this Contract as set forth in Exhibit B or as described on Supplier's US and International price lists in effect at time of Authorized User's placement of order or SOW. If this Contract is for Software Maintenance, “Software” also includes the programs and code provided by Supplier under the Contract or any order or SOW issued pursuant to the Contract in the form of Software Updates.

Software Publisher The third-party licensor of the Software, other than the Supplier, provided by Supplier under this Contract.

Solution The Supplier’s contractually committed technical approach for solving an information technology business objective and associated Requirements as defined and authorized by the scope of the Contract or any order or Statement of Work issued under the Contract. Solution means all Supplier and Supplier’s third-party providers’ components making up the Solution, including but not limited to Software, Product, configuration design, implementation, Supplier-developed interfaces, Services and Work Product.

Statement of Work (“SOW”) Any document in substantially the form of Exhibit C (describing the deliverables, due dates, assignment duration, Acceptance criteria, and payment obligations for a specific project, engagement, or assignment that Supplier commits to provide to Agency), which, upon signing by both Parties, is made a part of the Contract.

Subcontractor Any entity to which Supplier (or other Subcontractor of any tier) has subcontracted for performance of, or delegated any of its responsibilities under the Contract, including an affiliate of the Supplier.

Supplier The entity set forth in the preamble of this Contract and any entity that controls, is controlled by, or is under common control with Supplier.

Supplier Personnel Any and all of Supplier’s employees, agents, contractors, or Subcontractors performing under this Contract.

SWaM Any entity certified by the Commonwealth’s Department of Small Business and Supplier Diversity as a small, women-owned, minority-owned, or service disabled veteran-owned business, as defined in Code §§ 2.2-2000.1 and 2.2-4310, or a certified micro business as defined in Executive Order Number 35 (2019).

Transition Out Plan The written plan developed by Supplier addressing the transition of Supplier’s contractual obligations, in whole or in part, away from the Supplier and to Agency, or its designee, after the expiration or termination of the Contract.

Transition Period The period of time after the expiration or termination of the Contract that Supplier is obligated to continue providing assistance to Agency so as to transition the Supplier’s contractual obligations, or any portion thereof, to any other supplier.

Update Any update, modification, or new release of the Software, System Software, Application, Documentation, or Supplier Product that Supplier makes generally available to its customers at no additional cost. Software Updates include patches, fixes, upgrades, enhancements, improvements, or access mode, including without limitation additional capabilities to or otherwise improve the functionality, increase the speed, efficiency, or base operation of the Software.

VITA

The Virginia Information Technologies Agency, Agency of the Commonwealth of Virginia pursuant to Chapter 20.1 (§§ 2.2-2005 et seq.) of the Code, or any successor agency.

Warranty Period The period of time during which Supplier is obligated to provide corrections, free of charge, for a unit of Software or Product.

Web Site The Internet site operated by Supplier to provide access to the Application, with the Uniform Resource Locator ("URL") specified in the applicable order or SOW (or any successor URL(s)).

Work Product Inventions, combinations, machines, methods, formulae, techniques, processes, improvements, software designs, computer programs, strategies, specific computer-related know-how, data and original works of authorship discovered, created, or developed by Supplier, or jointly by Supplier and Agency(s) in the performance of this Contract. Work Product does not include configuration of software, nor does it include anything developed by Supplier prior to, or outside of, this Contract.

TERM AND TERMINATION

Contract Term Comment by Knowles, Caitlin (VITA): DOE, will need to establish the expected term of the pilot and include your termination rights in B, C, & D below for the pilot. Comment by Griffith, Arielle (DOE): complete Comment by Knowles, Caitlin (VITA): Open comment. Need to add the pilot to section A,B,C & D.

This Contract is effective and legally binding as of the Effective Date and, unless terminated as provided for in this section, will be effective and legally binding for a period of (5) five years (“Initial Term”). Agency, in its sole discretion, may renew this Contract for up to (3) three additional (1) one year renewal periods after the expiration of the Initial Term (collectively with the Initial Term, the “Contract Term”). Agency will issue a written notification to the Supplier stating Agency’s intention to exercise a renewal period no less than 30 calendar days prior to the expiration of any current term. In addition, performance of an order or SOW issued during the Contract Term may survive the expiration of the Contract Term, in which case all contractual terms and conditions required for the operation of such order or SOW will remain in full force and effect until all of Supplier's obligations pursuant to such order or SOW have met the final Acceptance criteria of Agency.

Termination for Convenience Agency may terminate this Contract, in whole or in part, at any time and for any reason upon not less than 30 calendar days prior written notice to Supplier. Agency may terminate an order or SOW, in whole or in part, at any time and for any reason upon not less than 30 calendar days prior written notice to Supplier. Any termination under this provision will not affect the rights and obligations attending any order or SOW outstanding at the termination date.

Termination for Breach In the event of breach by the Supplier, Agency will have the right to terminate this Contract, in whole or in part, and Agency may terminate an order or SOW issued hereunder, in whole or in part. Supplier will be deemed in breach in the event that Supplier fails to meet any material obligation set forth in this Contract or in any order or SOW issued hereunder. Any termination under the provisions of this section will be deemed a “Termination for Breach”.

If Agency deems the Supplier to be in breach, Agency shall provide Supplier with notice of breach and allow Supplier 15 business days to cure the breach. If Supplier fails to cure the breach as noted, Agency may immediately terminate this Contract or any order or SOW issued pursuant to this Contract, in whole or in part. If Agency deems the Supplier to be in breach of an order or SOW, that Agency shall provide Supplier with notice of breach and allow Supplier 15 business days to cure the breach. If Supplier fails to cure the breach as noted, Agency may immediately terminate its order or SOW, in whole or in part. In addition, if Supplier is found by a court of competent jurisdiction to be in violation of or to have violated 31 U.S.C. § 1352, or if Supplier becomes a party excluded from Federal Procurement and Nonprocurement Programs, Agency may immediately terminate this Contract, in whole or in part, for breach, and Agency shall provide written notice to Supplier of such termination. Supplier shall provide prompt written notice to Agency if Supplier is charged with violation of 31 U.S.C. § 1352, or if federal debarment proceedings are instituted against Supplier.

Termination for Non-Appropriation of Funds All payment obligations from Agency under this Contract are subject to the availability of legislative appropriations at the federal, state, or local level for this purpose. In the event of non-appropriation of funds, irrespective of the source of funds, for the items under this Contract, Agency may terminate this Contract, in whole or in part, or any order or SOW, in whole or in part, or Agency may terminate an order or SOW, in whole or in part, for those goods or services for which funds have not been appropriated. Written notice will be provided to the Supplier as soon as possible after legislative action is completed.

Effect of Termination Upon termination, neither the Commonwealth, nor Agency, will have any future liability except for Deliverables accepted by Agency or Services (including any applicable Licensed Services and Maintenance Services) rendered by Supplier and accepted by Agency prior to the termination date.

In the event of a Termination for Breach, Supplier shall accept return of any Deliverable that was not accepted by Agency, and Supplier shall refund any monies paid by Agency for the unaccepted Deliverable. The Agency will also have the right, in its sole discretion, to return any accepted Deliverable and Supplier shall refund any monies paid for the accepted Deliverable, less a reasonable value for the use of those components. Supplier will bear all costs of de-installation and return of Deliverables.

Termination by Supplier In no instance will termination by Supplier be considered. Failure by an Authorized User to make timely payments owed to Supplier for its performance under this Contract may constitute a breach by that Authorized User. Supplier’s remedies for an alleged breach by a Commonwealth Authorized User are limited to the remedies set forth in Code § 2.2-4363 and the “Remedies” section of this Contract below.

Transition of Services At the request of Agency prior to or upon expiration or termination of this Contract, Supplier shall provide all assistance as Agency may reasonably require to transition the Supplier’s contractual obligations, or any portion thereof, to any other supplier with whom Agency contracts for provision of same. This Transition Period obligation may extend beyond expiration or termination of the Contract for a period of (6) six months. If this Contract includes Supplier's provision of licensed products, Supplier shall take no action to restrict or terminate the use of such licensed products after the date of expiration or termination of the Contract or during any Transition Period, or both. Agency shall pay for any additional maintenance or licensing fees during any Transition Period at the hourly rate or at a fee agreed upon by Supplier and the applicable Agency. Supplier shall provide all reasonable transition assistance requested by the applicable Agency to allow for the expired or terminated portion of the Services to continue without interruption or adverse effect, and to facilitate the orderly transfer of such Services to Agency. The transition assistance will be deemed by the parties to be governed by the terms and conditions of this Contract, except for those terms or conditions that do not reasonably apply to transition assistance. Further, any Transition Period will not affect Agency's rights in regards to any purchased Software perpetual licenses which are paid in full.

Contract Kick-Off Meeting Within 30 calendar days of the Effective Date, Supplier may be required to attend a contract orientation meeting, along with Agency contract manager/administrator, Agency project manager(s) or authorized representative(s), and any other significant stakeholders who have a part in the successful performance of this Contract. The purpose of this meeting will be to review all contractual obligations for both parties, all administrative and reporting requirements, and to discuss any other relationship, responsibility, communication and performance criteria set forth in the Contract.

Transition Out Plan Within three (3) months of the Effective Date, Supplier will develop and distribute to the applicable Agency a Transition Out Plan. The Supplier will maintain the Transition Out Plan throughout the Term, and update the Transition Out Plan as needed and subject to Agency’s approval.

Contract Closeout Prior to the Contract’s expiration date, Supplier may be provided contract closeout documentation by Agency. If contract closeout documentation is provided, then Supplier shall complete, sign, and return to Agency Supply Chain Management any required documentation within 30 calendar days of receipt to ensure completion of closeout administration and to maintain a positive performance reputation with the Commonwealth. Any required closeout documentation not received within 30 calendar days of Supplier’s receipt of the Commonwealth's request will be documented in the contract file as Supplier non-compliance. Supplier’s non-compliance may affect any pending payments due to the Supplier, including final payment, until the documentation is returned to Agency.

SUPPLIER PERSONNEL

Selection and Management of Supplier Personnel Supplier shall ensure that all Supplier Personnel performing under this Contract are competent and knowledgeable of the contractual arrangements and the applicable order or SOW between Agency and Supplier. Supplier acknowledges that Supplier is the employer of all Supplier employees and shall have the sole responsibility to supervise, counsel, discipline, review, evaluate, set the pay rates of, provide (to the extent required by law) health care and other benefits for, and terminate the employment of Supplier employees. Supplier shall be solely responsible for the supervision and conduct of Supplier Personnel, including all acts, omissions, gross negligence, and willful misconduct of Supplier Personnel. Additionally, Supplier shall ensure that Supplier Personnel comply with the appropriate Agency’s site security, information security and personnel conduct rules, as well as applicable federal, state and local laws, including export regulations. Agency reserves the right to require the immediate removal from such Agency’s premises of any Supplier Personnel whom such Agency believes has failed to comply with the above or whose conduct or behavior is unacceptable or unprofessional or results in a security or safety breach.

Key Personnel An order or SOW may designate certain of Supplier’s personnel as “Key Personnel” or “Project Managers”. Supplier’s obligations with respect to Key Personnel and Project Managers will be described in the applicable order or SOW. Any changes to Key Personnel must be mutually agreed to in writing by Supplier and Agency. Failure of Supplier to perform in accordance with such obligations may be deemed a breach of this Contract or of the applicable order or SOW.

Subcontractors Supplier shall not use Subcontractors to perform its contractual obligations or any order or SOW issued pursuant to the Contract unless specifically authorized in writing to do so by Agency. If an order or SOW issued pursuant to this Contract is supported in whole or in part with federal funds, Supplier may not subcontract to any Subcontractor that is a party excluded from Federal Procurement and Nonprocurement Programs. In no event may Supplier subcontract to any Subcontractor that is debarred by the Commonwealth or that owes back taxes to the Commonwealth and has not made arrangements with the Commonwealth for payment of such back taxes.

If Supplier subcontracts the provision of any performance obligation under this Contract to any other party, Supplier shall (i) act as prime contractor and will be the sole point of contact with regard to all obligations under this Contract; and (ii) represent and warrant that any authorized Subcontractors shall perform in accordance with the terms and conditions, including warranties, set forth in this Contract.

NEW TECHNOLOGY

Access to New Technology Supplier will bring to Agency’s attention any new products or services within the scope of the Contract that Supplier believes will be of interest to Agency and will work to develop proposals for the provision of any such products or services as Agency requests.

New Services Offerings Not Available from Supplier If new or replacement product or service offerings become available and cannot be competitively provided by the Supplier under the scope of this Contract, Agency will have the right to purchase the new or replacement products or services from a third party. If Agency elects to use such new or replacement product or service offerings, Supplier will reasonably assist Agency to migrate to such products or services.

If Agency elects to acquire new products or services as described in the paragraph above and such services replace existing Supplier-provided services, discount tiers and any commitments (as applicable per the Contract) will be reduced to reflect reductions in purchases of the replaced products or services.

GENERAL WARRANTY

Supplier warrants and represents to Agency that Supplier will fulfill its contractual obligations and meet all Requirements as described in Exhibit A. Other than the obligations set forth in this section below, Supplier makes no other warranties, express or implied, concerning merchantability or fitness for any other particular purpose.

Supplier warrants and represents to Agency that:

Ownership Supplier has the right to perform and provide all contractual obligations and provide all needed services or products without violating or infringing any law, rule, regulation, copyright, patent, trade secret, or other proprietary right of any third party.

Coverage Requirements During the Warranty Period of 365 calendar days, or as specified in the applicable order or SOW, Supplier warrants that any Deliverables provided by Supplier under this Contract will meet or exceed the Requirements. Supplier shall correct, at no additional cost to Agency, all errors identified during the Warranty Period that result in supplier’s failure to meet the Requirement, or its contractual obligations.

The Warranty Period will begin at the Acceptance date of the final Deliverable.

Performance Warranty With respect to Supplier’s performance under this Contract:

i. Supplier shall perform all contractual obligations with the care, skill and diligence, consistent with or above applicable professional standards currently recognized in Supplier's profession, and Supplier shall be responsible for the professional quality, technical accuracy, completeness, and coordination of all plans, information, specifications, Deliverables, and Services furnished under this Contract; and

ii. Supplier shall ensure that any contractually-obligated Services or Deliverables, or both, meet or exceed the Requirements and that any Services and Deliverables will function in conformance with the Requirements.

Documentation and Deliverables

i. Any required Documentation Supplier is obligated to provide under this Contract will be sufficient in detail and content to allow an appropriately trained user/programmer to understand and fully utilize, as applicable, the Deliverables without reference to any other materials or information.

ii. All Deliverables provided or delivered pursuant to this Contract are at the current release level unless Agency specifies an older version in its order or SOW.

iii. No Update, engineering change, or revision made to any Supplier-provided Deliverables will (a) degrade the performance of any Deliverable or its components to a level below that defined in the Requirements or the Product manufacturer's or Software Publisher's published specifications, as applicable; (b) cause any other warranty to be breached; or (c) require Agency to acquire additional hardware equipment or software.

Interoperability Warranty Supplier warrants that each Component, regardless of the origin of the Component, delivered under this Contract or pursuant to an order or SOW shall be interoperable with other Components so as to meet or exceed the performance specified in the Requirements and the applicable order or SOW.

Malicious Code Supplier has used commercially reasonable efforts through quality assurance procedures to verify that there are no Computer Viruses or undocumented features in any of the Deliverables, as obligated and provided by Supplier under the order or SOW, at the time of delivery to Agency. Supplier has used the best available means to scan any media provided to Agency. Supplier warrants that the Deliverables, as obligated and provided by Supplier under the order or SOW, do not contain any embedded device or code (e.g., time bomb) that is intended to obstruct or prevent Agency’s use of the Deliverables.

Notwithstanding any rights granted under this Contract or at law, Supplier waives, under any and all circumstances, any right it has or may have in the future to exercise its license termination rights by electronic means. Supplier agrees that Agency may pursue all remedies provided under law in the event of a breach or threatened breach of this section, including injunctive or other equitable relief.

Open Source Supplier will notify all Agency if any Deliverables, as obligated and provided by Supplier, contain any Open Source code and identify the specific Open Source License that applies to any embedded code dependent on Open Source code, provided by Supplier under this Contract.

Supplier Viability Supplier has the financial capacity to perform and continue to perform its obligations under this Contract. Supplier has no constructive or actual knowledge of a potential legal proceeding being brought against Supplier that could materially adversely affect performance of this Contract. Further, Supplier is not prohibited by any contract, or order by any court of competent jurisdiction from entering into this Contract.

Supplier’s Past Experience Supplier has met similar contractual obligations and fulfilled the Requirements as set forth in Exhibit A and in this Contract, in similar or greater complexity, to other customers without significant problems due to Supplier’s performance and without causing a contractual breach or default claim by any customer.

SOFTWARE LICENSE

Any and all license rights granted pursuant to this Contract will be held pursuant to the terms of the “Licensing Within the Commonwealth” section of this Contract below.

License Grant

I. Software Licensed by Software Publisher Any Software provided by Supplier as part of its Solution that is licensed directly from the Software Publisher through an End User Licensing Agreement (“EULA”) is subject to the License Agreement Addendum (“LAA”) attached to this Contract as Exhibit F. Supplier shall have sole responsibility for ensuring that any such Software Publisher executes the LAA. The Software Publisher's EULA, along with the LAA executed by Software Publisher will be added to Exhibit F for reference, but will not become a part of this Contract.

License Type All licenses granted, regardless of the type, include all uses set forth above. License type may vary by Software product and will be set forth in Exhibit B and identified on any order or SOW issued pursuant to this Contract.

Enterprise Wide License The “Enterprise Wide License” authorizes use of the Software on any CPU, on any system, and by any user within the “Enterprise”, as such term is defined in the applicable order or SOW, without limitation as to the quantity, location, or project.

No Subsequent, Unilateral Modification of Terms by Supplier (“Shrink Wrap”) The terms and conditions set forth in this section supersede and govern the licensing and delivery of all Products and Services in this Contract. The terms and conditions of this Contract will supersede any other provision or other unilateral license terms that may be issued by Supplier after the Effective Date, regardless of when those provisions were proposed or the fact that another agreement may be affixed to, or accompany, Software upon delivery (“shrink wrap”).

Reservation of Rights Nothing contained in this section will be construed to restrict or limit the rights of the Commonwealth or Agency to use any technical data that the Commonwealth or Agency may already possess or acquire under proper authorization from other sources.

RIGHTS TO WORK PRODUCT

Any license to pre-existing work will be held, and all rights in, title to, and ownership of Work Product will vest, pursuant to the terms of the “Licensing Within the Commonwealth” section of this Contract below.

Work Product Agency and Supplier mutually acknowledge that performance of this Contract may result in Work Product. The Parties shall document all Work Product specifications and these specifications will be set forth in Exhibit A and incorporated into this Contract. Supplier shall promptly and fully disclose to the Commonwealth or Agency any and all Work Product generated, conceived, reduced to practice, or learned by Supplier or any Supplier Personnel, either solely or jointly with others, during the term or performance of this Contract, which in any way relates to the business of the Commonwealth or Agency. Supplier and Supplier Personnel shall not make use of, or disclose to others, any proprietary information relating to the Work Product, other than as is required in the performance of this Contract. All Services performed pursuant to this Contract will include delivery of all source and object code and all executables and documentation for all Work Product. At no time may Supplier deny Agency or Agency access to the Work Product, regardless of form.

Ownership All Work Product discovered, created, or developed under this Contract, or in the course of executing an order or SOW issued pursuant to this Contract, is and will remain the sole property of Agency, regardless of whether the Deliverable or Services are considered “works made for hire” or “hired to invent”. Supplier agrees that Agency will have all rights with respect to any Work Product discovered, created or developed under this Contract, or any order or SOW issued hereunder, without regard to the origin of the Work Product.

Supplier irrevocably transfers, grants, conveys, assigns and relinquishes exclusively to Agency any and all right, title and interest it now has or may hereafter acquire in and to the Work Product under patent, copyright, trade secret and trademark law in perpetuity, or for the longest period otherwise permitted by law. If any moral rights are created, Supplier expressly waives all moral rights created in the Work Product. Supplier shall assist Agency in every reasonable way to obtain and, from time to time, enforce patents, copyrights, trade secrets and other rights and protection relating to the Work Product. Upon the reasonable request by Agency with respect to the Work Product, Supplier and any required Supplier Personnel shall execute all documents necessary for use in applying for and obtaining patents, copyrights, and other rights and protection, and in protecting trade secrets with respect to the Work Product.

Supplier agrees that the provisions of this section will survive any termination of this Contract by Agency, or the termination of any order or SOW issued hereunder by Agency. Supplier also agrees that in the event of a breach of this Contract by Agency, Supplier’s remedy will not include any right to rescind, revoke, or otherwise invalidate the provisions of this section.

Supplier acknowledges that in the case of Agency which is a public body of the Commonwealth, all rights and remedies afforded that Agency under this section shall also be held and exercisable by the Commonwealth.

Pre-existing Work If, and to the extent that, any pre-existing rights are embodied or reflected in the Work Product, Supplier grants to the Commonwealth or Agency the irrevocable, perpetual, non-exclusive, worldwide, royalty-free right and license to (i) use, execute, reproduce, display, perform, distribute copies of, and prepare derivative works based upon such pre-existing rights and any derivative works thereof; and (ii) authorize others to do any or all of the foregoing. Supplier will retain all ownership rights in any pre-existing works.

Return of Materials Upon termination of this Contract or in the event Agency terminates any order or SOW issued pursuant to this Contract, Supplier shall immediately return to Agency or the appropriate Agency all copies, in whatever form, of any and all Confidential Information, Work Product and other properties provided by Agency that are in Supplier's possession, custody, or control.

SOFTWARE ESCROW AGREEMENT

Supplier shall maintain copies of all Software source code and related technical and user Documentation, in English, in an escrow account, and shall maintain with the Escrow Agent the signed escrow agreement as set forth in Exhibit E (“Escrow Agreement”) attached to this Contract and incorporated by reference Comment by Knowles, Caitlin (VITA): DOE, if you need to have an escrow agreement, you will need to add this to the Exhibit list below and update the Exhibit reference. If this is not applicable, this section can be removed.

Agency acknowledges that, prior to the Effective Date of this Contract, Supplier delivered to Agency and Agency received a copy of the executed Escrow Agreement naming the Commonwealth as a third party beneficiary. Agency has reviewed the Escrow Agreement to ensure that the Escrow Agreement does not impose upon the Commonwealth any requirements or obligations other than administrative responsibilities necessary for the operation of the Escrow Agreement. In the event the Escrow Agent is obligated to release the escrowed materials to the Commonwealth, the Commonwealth’s sole responsibility will be to request the release of the escrowed materials from the Escrow Agent. Supplier agrees to notify Agency in writing not less than 30 calendar days prior to termination or any modification of Escrow Agreement.

Supplier warrants that the information and materials to be kept in escrow, in a media safe environment, for the benefit of the Commonwealth are specifically identified and listed in Attachment A to the Escrow Agreement. Supplier further warrants that the information and materials include the most current versions used by all Agency of:

i. the source code for the Software and all future release versions;

ii. identification of the development/support technology stack, including, but not limited to, every software tool, driver, script, app, etc. with versions and details needed to develop, test, and support all phases of the SDLC for all tiers of the Software as used in Agency’s solution or operating environment;

iii. all Documentation related to items (i) and (ii) above, as well as all necessary and available information; and

iv. (a) technical Documentation that will enable Agency, or an Agent of Agency to create, maintain, or enhance the Software without the aid of Supplier or any other person or reference to any other materials, maintenance tools (test programs and program specifications), or proprietary or third party system utilities (compiler and assembler descriptions); (b) descriptions of the system/program generation; and (c) descriptions of any Supplier tools required to enable Agency and all Agency to continue to use the Software.

Supplier shall provide all Documentation in unprotected MS Word and other commonly used formats that can be updated. Supplier warrants that all items, including future versions, deposited in escrow for Agency will be verified by the Escrow Agent within 30 calendar days after deposit to validate the completeness, accuracy, and functionality of the Supplier’s escrow deposits. Supplier also warrants that the Escrow Agreement details the verification process to be performed by the Escrow Agent for the original deposit as well as all subsequent deposits. Supplier shall provide Agency a detailed report of all verification tests conducted by the Escrow Agent within ten (10) business days of completion.

Escrow Agent shall conduct a verification process that includes but is not be limited to:

v. File List Test - To ensure the deposited items are catalogued and confirm they are readable and virus free, and if encrypted, that the Escrow Agent has the decryption keys on deposit.

vi. Inventory and Analysis Test – To provide a complete audit and inventory of the deposit including analysis of deposited media to verify the presence of build instructions; to identify all of materials necessary to recreate the original development environment; and to confirm the presence of all build instructions, file classification tables, database schema, and listings.

vi. Compile Test – To validate whether the development environment can be recreated from the deposited documentation and files; to identify third-party libraries; to recreate the Supplier’s development environment; to compile source files and modules; to recreate executable code; and to prepare a complete list of any hardware or software configurations.

viii. Binary Comparison Test – To test the functionality of the complied deposit materials by comparing the files built in compile testing to the licensed, executable file running at AGENCY’s site.

ix. Full Usability Test – To confirm the source code placed in…