IT Research Subscription Services (VITA Standard Contract).docx

Information Technology Information Technology Research Subscription Services Contract between

The Virginia Information Technologies Agency an agency of The Commonwealth of Virginia and

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

INFORMATION TECHNOLOGY Contract Table of Contents

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INFORMATION TECHNOLOGY Contract

THIS INFORMATION TECHNOLOGY CONTRACT (“Contract”) is entered into by and between the Virginia Information Technologies Agency (“VITA”), an agency of the Commonwealth of Virginia (“Commonwealth”) pursuant to § 2.2-2012 of the Code of Virginia and (“Supplier”), a __________ headquartered at , , , , to be effective as of Contract Award Date (“Effective Date”).

1. PURPOSE AND SCOPE

VITA, on behalf of the Commonwealth, is engaging Supplier to provide Information Technology (IT) Research Subscription Services (the “Services”). This Contract sets forth the terms and conditions under which Supplier shall provide Services on a fixed-price, subscription-based model. Supplier shall provide access to the newest research and information repositories, technologies, and techniques through an online portal. The scope also encompasses optional analyst services to provide high quality analysis and comprehensive insights into Supplier’s IT-related online repositories of market research, information, and reports. Supplier shall provide these services to all Authorized Users, as defined below.

This Contract allows for joint and cooperative procurement use, in accordance with Virginia Code §§ 2.2-2012 and 2.2-4304. Such use by other public bodies is not limited to Virginia and shall include other public bodies, or public agencies or institutions or localities of the several states, of the United States or its territories, the District of Columbia, the U.S. General Services Administration, or the Metropolitan Washington Council of Governments, or any other entity authorized by applicable law or policy to purchase the goods or services authorized in the contract, provided the using entity executes a participating addendum with Supplier. VITA’s approval is not required for cooperative use, but the using entity and Supplier shall ensure that VITA is aware of such use by providing a copy of the executed participating addendum to VITA. Notwithstanding the preceding sentence, Virginia entities may use this Contract without executing a participating addendum if such use does not require custom terms and the entities are authorized by Virginia Code § 2.2-2012 to purchase from contracts established by VITA.

Supplier agrees that all authorized entities may purchase the products and services furnished pursuant to this Contract, in accordance with the provisions of this section. Supplier shall include all cooperative purchasing/use in reporting pursuant to section 11 of this Contract.

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 Successful performance of the Services at the designated location or completed Acceptance testing in conformance with the requirements as determined by the Authorized User and set forth in the applicable order.

Authorized Users All public bodies, including VITA, as defined by Code § 2.2-4301 and referenced by Code §§ 2.2-4304 and 2.2-2012, authorized to participate in the procurement of information technology under this Contract. Authorized Users include private institutions of higher education that are listed at: https://cicv.org/colleges/.

Pursuant to Code § 2.2-4304, “Authorized Users” also includes those public bodies, or public agencies or institutions or localities of the several states, of the United States or its territories, the District of Columbia, the U.S. General Services Administration, or the Metropolitan Washington Council of Governments that have executed a participating addendum with the Supplier to utilize this Contract and have notified VITA of such intent to participate in this Contract.

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, public bodies of the Commonwealth, VITA, and Authorized Users, together with their respective officers, directors, agents, and employees.

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.

Confidential Information Non-public proprietary or trade secret information of VITA, Supplier, or an Authorized User, 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 VITA’s employees, contractors, and customers, or Sensitive Data, including PHI; or

iv. information that is protected by statute or other applicable law.

In the case of VITA, “Confidential Information” also includes any (a) information to which the Supplier has access in VITA facilities or VITA’s systems, (b) Work Product and information pertaining to the Work Product, (c) VITA data, VITA software, and systems access codes, and (d) information concerning VITA’s and any other Authorized User’s operations, plans, employees, contractors or third-party suppliers.

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

v. 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;

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

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

viii. 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 VITA 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 VITA or other Authorized User 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 any Authorized User 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 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.

eVA Virginia's electronic procurement system used by state agencies, universities, and local governments for buying and selling goods and services.

Federal Tax Information (“FTI”) Federal tax returns and federal tax return information (and information derived from it) that is in the possession or control of any Authorized User, 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.

Industrial Funding Adjustment (“IFA”) The fee paid by Supplier to VITA to compensate VITA for the cost of procuring and managing the Contract.

Party Supplier, VITA, or any Authorized User.

Receipt An Authorized User 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, and such other parameters, characteristics, or performance standards that may be agreed upon in writing by the Parties.

Services The IT Research Subscription Services provided by Supplier to an Authorized User pursuant to this Contract. including 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, as set forth in Exhibit A, and fulfilling Supplier's obligations under the Contract or, as applicable, under any order 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.

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.

Supplier Reporting System (“SRS”) The VITA system used by Supplier to fulfill reporting obligations under this Contract. The SRS can be accessed at the following URL(s): https://www.vita.virginia.gov/procurement/supplier-reporting/supplier-reporting-system-access/, or any successor URL(s).

SWaM Any entity certified by the Commonwealth’s Department of Small Business and Supplier Diversity as a small women-owned, small minority-owned, or small 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 Authorized User, 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 Authorized Users so as to transition the Supplier’s contractual obligations, or any portion thereof, to any other supplier.

Total Sales Sales under this Contract for which Supplier has received full and complete payment from an Authorized User.

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

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 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 an Authorized User(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 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 up to two (2) years (“Initial Term”). VITA, in its sole discretion, may renew this Contract for up to two (2) additional two (2) year renewal periods (each a "Renewal Term") after the expiration of the Initial Term. The Initial Term and any elected Renewal Term(s) constitute, collectively, the “Contract Term”. VITA will issue a written notification to the Supplier stating VITA’s intention to exercise a Renewal Term no less than 30 calendar days prior to the expiration of any current term. In addition, performance of an order 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 will remain in full force and effect until all of Supplier's obligations pursuant to such order have met the final Acceptance criteria of the applicable Authorized User.

Termination for Convenience VITA 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. An Authorized User may terminate an order, 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 outstanding at the termination date.

Termination for Breach In the event of breach by the Supplier, VITA will have the right to terminate this Contract, in whole or in part, and an Authorized User may terminate an order 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 issued hereunder. Any termination under the provisions of this section will be deemed a “Termination for Breach”.

If VITA deems the Supplier to be in breach, VITA 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, VITA may immediately terminate this Contract or any order issued pursuant to this Contract, in whole or in part. If an Authorized User deems the Supplier to be in breach of an order, that Authorized User 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, the Authorized User may immediately terminate its order, 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, VITA may immediately terminate this Contract, in whole or in part, for breach, and VITA shall provide written notice to Supplier of such termination. Supplier shall provide prompt written notice to VITA 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 public bodies 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, VITA may terminate this Contract, in whole or in part, or any order, in whole or in part, or an Authorized User may terminate an order, 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 VITA, nor any Authorized User will have any future liability except for Deliverables accepted by an Authorized User or Services (including any applicable Licensed Services and Maintenance Services) rendered by Supplier and accepted by the Authorized User 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 the Authorized User, and Supplier shall refund any monies paid by any Authorized User for the unaccepted Deliverable.[[Following sentence is optional depending on nature of what is being purchased, delete if not applicable]]The Authorized User 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.[[END optional sentence]] Supplier will bear all costs of de-installation and return of Deliverables.

Termination by Supplier In no event shall termination of this Contract by Supplier be considered, nor shall Supplier terminate or suspend Services to any 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 an Authorized User prior to or upon expiration or termination of this Contract, Supplier shall provide all assistance as the Authorized User may reasonably require to transition the Supplier’s contractual obligations, or any portion thereof, to any other supplier with whom the Authorized User contracts for provision of same. This Transition Period obligation may extend beyond expiration or termination of the Contract for a period of three (3) [[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. Authorized Users 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 Authorized User. Supplier shall provide all reasonable transition assistance requested by the applicable Authorized User 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 Authorized User. 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 any Authorized User's rights in regard 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 the VITA contract manager/administrator, Authorized User 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 Authorized User a Transition Out Plan. The Supplier will maintain the Transition Out Plan throughout the Contract Term and update the Transition Out Plan as needed and subject to Authorized User’s approval.

Contract Closeout Prior to the Contract’s expiration date, Supplier may be provided contract closeout documentation by VITA. If contract closeout documentation is provided, then Supplier shall complete, sign, and return to VITA 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 VITA.

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 between Authorized User 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 Authorized User’s site security, information security and personnel conduct rules, as well as applicable federal, state and local laws, including export regulations. Authorized User reserves the right to require the immediate removal from such Authorized User’s premises of any Supplier Personnel whom such Authorized User 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 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. Any changes to Key Personnel must be mutually agreed to in writing by Supplier and Authorized User. Failure of Supplier to perform in accordance with such obligations may be deemed a breach of this Contract or of the applicable order.

Subcontractors Supplier shall not use Subcontractors to perform its contractual obligations or any order issued pursuant to the Contract unless specifically authorized in writing to do so by the Authorized User. If an order 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 VITA’s attention any new products or services within the scope of the Contract that Supplier believes will be of interest to VITA and will work to develop proposals for the provision of any such products or services as VITA 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, VITA will have the right to purchase the new or replacement products or services from a third party. If VITA elects to use such new or replacement product or service offerings, Supplier will reasonably assist VITA to migrate to such products or services.

If VITA 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 VITA that Supplier will fulfill its contractual obligations and meet all Requirements as described in Exhibit A. Supplier warrants and represents to VITA 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.

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 an Authorized User specifies an older version in its order.

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 an Authorized User to acquire additional hardware equipment or software.

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, at the time of delivery to the Authorized User. Supplier has used the best available means to scan any media provided to the Authorized User. Supplier warrants that the Deliverables, as obligated and provided by Supplier under the order, do not contain any embedded device or code (e.g., time bomb) that is intended to obstruct or prevent any Authorized User’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 an Authorized User 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.

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.

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 VITA 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 the Authorized User 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 Contract Term, which in any way relates to the business of the Commonwealth, VITA, or any Authorized User. 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 VITA or an Authorized User 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 issued pursuant to this Contract, is and will remain the sole property of the Authorized User, regardless of whether the Deliverable or Services are considered “works made for hire” or “hired to invent”. Supplier agrees that the Authorized User will have all rights with respect to any Work Product discovered, created or developed under this Contract, or any order issued hereunder, without regard to the origin of the Work Product.

Supplier irrevocably transfers, grants, conveys, assigns and relinquishes exclusively to the Authorized User 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 the Authorized User 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 Authorized User 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 VITA, or the termination of any order issued hereunder by an Authorized User. Supplier also agrees that in the event of a breach of this Contract by VITA or any Authorized User, 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 an Authorized User which is a public body of the Commonwealth, all rights and remedies afforded that Authorized User 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 the Authorized User 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 Authorized User terminates any order issued pursuant to this Contract, Supplier shall immediately return to VITA or the appropriate Authorized User all copies, in whatever form, of any and all Confidential Information, Work Product and other properties provided by VITA or the Authorized User that are in Supplier's possession, custody, or control.

SERVICES

Nature of Services and Engagement This Contract is optional use and non-exclusive, all Authorized Users may, at their sole discretion, receive benefits from third party suppliers of services similar to, or in competition with, Services provided by Supplier.

VITA, in its sole discretion, may cancel any order resulting in a commitment of any individual Supplier Personnel for more than 1,000 hours of work during any six (6) month period or of any such individual Supplier Personnel for more than eight (8) months in any twelve (12) month period. Any order cancelled by VITA will no longer be binding on either Party, and all obligations with respect to the cancelled order shall expire.

IT Research Subscription Services In meeting the Requirements of this Contract, Supplier shall provide the newest research and information repositories, technologies, and techniques available to Authorized Users. Supplier’s Services may also include analyst services to provide high quality analysis and comprehensive insights into Supplier’s IT-related online repositories of market research, information, and reports, as mutually agreed to by Supplier and the applicable Authorized User. The complete listing of all available IT Research Subscription Services offered by Supplier is fully set out in Exhibit B to this Contract.

ACCEPTANCE AND CURE PERIOD

Services Acceptance Criteria Service(s) will be deemed accepted when the Authorized User determines that the Service(s) meet(s) the Requirements set forth in the applicable order. Supplier shall ensure any individual Deliverable functions properly with any other Deliverables provided pursuant to the order. In the event that a previously Accepted Deliverable requires further modification in order to work properly with any other Deliverable, Supplier shall be responsible for all costs associated with the modification.

Authorized User shall commence Acceptance testing within ten (10) calendar days after Receipt of the Service, or within such other period as set forth in the applicable order Acceptance testing will last no longer than ten (10) calendar days, unless otherwise agreed to in writing between Authorized User and Supplier, for each Deliverable, or for the first instance of each Service type set forth in Exhibit B. Supplier shall provide the Authorized User any assistance and advice as the Authorized User may reasonably require, at no additional cost, during Acceptance testing. Authorized User shall provide Supplier written notice of Acceptance upon completion of installation and successful Acceptance testing. In the event that Agency fails to provide Supplier written notice of successful or unsuccessful Acceptance testing within ten (10) business days following the end of the Acceptance testing period, the Supplier shall provide Agency with written notice that Supplier has not received a notice of successful or unsuccessful Acceptance testing from Agency. If Agency fails to provide Supplier with written notice of successful or unsuccessful Acceptance testing within 5 (five) business days after receiving such notice from Supplier, the Software or Deliverable will be deemed Accepted.

Services Cure Period Supplier shall correct any non-conformities identified during Acceptance testing and re-submit the non-conforming Service for re-testing within seven (7) calendar days of Supplier’s receipt of written notice of non-conformance, unless otherwise agreed to between the Authorized User and Supplier in the applicable order. Should Supplier fail to cure the non-conformity or deliver a Service which meets the Requirements, the Authorized User may, in its sole discretion:

i. reject the Service in its entirety, and any other Service(s) rendered unusable due to the non-conforming Service, and recover amounts previously paid to Supplier for all such Services;

ii. issue a “partial Acceptance” of the Service with an equitable adjustment in the price to account for such deficiency; or

iii. conditionally accept the applicable Service while reserving its right to revoke Acceptance if Supplier fails to make a timely correction.

Failure of a Service to meet, in all material respects, the Requirements after the second set of acceptance tests may constitute a breach by Supplier. In the event of such breach, the Authorized User may, at its sole discretion, terminate its order, in whole or in part, for the Services to be provided by Supplier.

FEES, ORDERING, AND PAYMENT PROCEDURE

Fees and Charges In consideration for the Supplier’s performance obligations under this Contract, an Authorized User shall pay Supplier for Services provided to that Authorized User pursuant to Exhibit B Pricing attached to this Contract. Supplier will only be entitled to those fees and charges owed pursuant to Exhibit B Pricing. The fees, and any associated discounts, will be applicable throughout the Contract Term unless modified pursuant to the terms and conditions below.

Supplier shall keep track of the number of research subscription seats (licenses) sold and apply the applicable volume license discount to the subsequent sales.

Supplier shall not offer to provide or sell, or provide or sell, to the Commonwealth or other Authorized Users additional “time and materials” hours of analyst services under this Contract beyond what the IT Research Subscription Service offering included.

Price Increases and Changes to IT Research Subscription Service Offerings Supplier and VITA will work in good faith to agree on any appropriate change in pricing. Supplier agrees to offer price reductions to ensure compliance with the “Competitive Pricing” section of this Contract below. Beginning 24 months after the Effective Date, and in 24-month increments thereafter, Supplier may request, in writing, an adjustment to the prices for existing IT Research Subscription Services set forth in Exhibit B Pricing to this Contract. No increase in fee amounts will exceed the lesser of two percent (2%) or the annual increase in the Consumer Price Index for All Urban Consumers (CPI-U), U.S. City Average, All Items, Not Seasonally Adjusted, as published by the Bureau of Labor Statistics of the Department of Labor (http://www.bls.gov/cpi/home.htm) for the period ending 60 to 90 days prior to the effective date of the increase compared with the same index one (1) year prior. Supplier must submit any change in price, in writing, to an Authorized User if the change impacts any order and such change will not become effective for 60 calendar days thereafter.

At any time during the contract term, Supplier may propose “new” IT Research Subscription Services to be added to this Contract. VITA will consider a particular research subscription service offering to be “new” if 51% or less of the research subscription service offering was not previously included in that research subscription offering. VITA will consider a particular research subscription service offering to be “existing” if more than 51% of the research subscription service offering was previously included in that research subscription service offering.

Reproduction Rights for Supplier Provided Software At an Authorized User’s request, Supplier shall provide the Authorized User with a reproducible, portable data storage device (e.g. CD-ROM or USB flash drive) of Software and Updates. The Authorized User will be responsible for making copies and distributing the Software and Updates as required. Within 30 calendar days of the end of each calendar quarter, the Authorized User shall provide to Supplier a report of the net number of additional copies of the Software or Updates or both deployed during the quarter. Supplier will invoice such Authorized User for the net number of new licenses reported as deployed.

Demonstration and/or Evaluation If the Supplier’s contractual obligations include the provision of a Solution, an Application and Licensed Services, or Software-as-a-Service, at the request of any Authorized User, then Supplier shall perform any reasonable demonstration of its Solution, Application and Licensed Services, or Software-as-a Service at the Authorized User’s location and at no charge.

If the Supplier’s contractual obligations include the provision of Software, then the Supplier shall provide the Software to any Authorized User for evaluation purposes at no charge. The evaluation period will be determined by the complexity of testing but will be a period not less than 30 calendar days. Each new project is entitled to an evaluation copy regardless of whether an Authorized User has previously purchased the Software.

Supplier Quote and Request for Quote An Authorized User may, at its sole discretion, issue a Request for Quote (“RFQ”) for any combination of the Solution, Product, or Services provided under this Contract. Supplier shall respond to the RFQ by providing a written quote. Supplier’s quote must include (a) a detailed description of each product or service proposed, including any applicable components, at the Exhibit B line item fee level; (b) the quantity of each line item; (c) the total contract price; (d) any additional percentage discount offered; (e) an extended price; (f) any optional or alternate pricing; and (g) any pricing assumptions. Supplier shall provide quotes to Authorized Users that are correct, without discrepancies or inaccuracies, and priced in accordance with Exhibit B Pricing. If requested by the Authorized User, Supplier’s quote must also include a detailed description of the approach Supplier plans to take in developing, implementing, and maintaining its offering pursuant to the RFQ for the Authorized User. If Supplier is unable to meet the requirements of the RFQ, Supplier shall notify the Authorized User in writing of its inability to perform the work requested by the Authorized User, and provide the reasons for its inability to perform, prior to the due date for the submission of quotes in response to the RFQ. Supplier’s failure to respond to an RFQ may be deemed a breach of this Contract.

Ordering Supplier shall not accept any order from an Authorized User if the order is to be funded, in whole or in part, by federal funds and if, at the time the order is placed, Supplier is not eligible to be the recipient of federal funds as may be noted on any of the Lists of Parties Excluded from Federal Procurement and Nonprocurement Programs.

All Authorized Users have the right to license or purchase Supplier’s products or services under this Contract, but have no obligation to purchase or license from Supplier any of Supplier’s products or services. This Contract is optional use and non-exclusive, and all Authorized Users may, at their sole discretion, purchase, license or otherwise receive benefits from third party suppliers of products and services similar to, or in competition with, the products and services provided by Supplier.

Supplier shall accept any order placed by an Authorized User through the Commonwealth’s electronic procurement website portal, eVA (http://www.eva.virginia.gov/). Agencies, as defined by Code § 2.2-2006, and legislative, judicial, and independent agencies of the Commonwealth, must order through eVA. All other Authorized Users are encouraged to order through eVA, but may order through the following means:

i. Purchase Order (“PO”): An official PO form issued by an Authorized User.

ii. Any other order/payment charge or credit card process, such as AMEX, MASTERCARD, or VISA under contract for use by an Authorized User. This ordering authority is limited to issuing orders for the contractual offerings and Requirements available under the scope of this Contract. No Authorized User will have the authority to modify this Contract under any circumstances. An order may contain additional terms and conditions. In the event that the terms and conditions of an order are inconsistent with the terms and conditions of this Contract, the terms and conditions of this Contract will supersede.

ALL CONTRACTUAL OBLIGATIONS UNDER THIS CONTRACT IN CONNECTION WITH…