Part 3B UniformTerms Conditions Tower Services.pdf

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100 N 15th Ave., Suite 201

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PART 3 of the Solicitation Documents:

Contract Terms and Conditions

SECTION 3-B: Uniform Terms and Conditions

Version 11.3 (7/21/2016)

Table of Contents Page 1 of 3

SECTION 3-B:

Uniform Terms and Conditions

Version: 11.3 (7/21/2016)

TABLE OF CONTENTS:

1.0 .....Definition of Terms

1.1 .....Acceptance

1.2 .....Accepted Offer

1.3 .....Arizona Procurement Code; A.R.S.; A.A.C

1.4 .....Arizona TPT

1.5 .....Attachment

1.6 .....Building Work

1.7 .....Commercial Document

1.8 .....Contract

1.9 .....Contract Amendment

1.10 ...Contract Terms and Conditions

1.11 ...Contractor

1.12 ...Contractor Indemnitor

1.13 ...Co-Op Buyer

1.14 ...Day

1.15 ...Eligible Agency

1.16 ...Gratuity

1.17 ...Indemnified Basic Claims

1.18 ...Instructions to Offerors

1.19 ...Materials

1.20 ...Offer; Initial Offer; Revised Offer; Best and Final Offer (BAFO)

1.21 ...Order

1.22 ...Part, Section; Exhibit

1.23 ...Person

1.24 ...Procurement Officer

1.25 ...Arizona Procurement Portal............................................................ Error! Bookmark not defined.

1.26 ...Scope of Work

1.27 ...Services

1.28 ...Solicitation; Solicitation Documents

1.29 ...Special Terms and Conditions

1.30 ...Specification

1.31 ...State

1.32 ...State Indemnitees

1.33 ...State Fiscal Year

1.34 ...Subcontract

1.35 ...Subcontractor

1.36 ...Uniform Terms and Conditions

1.37 ...Work

2.0 .....Contract Interpretation

2.1 .....Arizona Law

2.2 .....Implied Terms

2.3 .....Usage

2.4 .....Contract Order of Precedence

2.5 .....Independent Contractor

2.6 .....Severability

2.7 .....Complete Integration

2.8 .....No Waiver of Rights

3.0 .....Contract Administration and Operation

3.1 .....Term of Contract

3.2 .....Contract Extensions

3.3 .....Notices and Correspondence

3.4 .....Signing of Contract Amendments

3.5 .....Click-Through Terms and Conditions

3.6 .....Books and Records

3.7 .....Contractor Licenses

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Table of Contents Page 2 of 3

3.8 .....Inspection and Testing

3.9 .....Ownership of Intellectual Property

3.10 ...Subcontracts

3.11 ...Non- Discrimination

3.12 ...E-Verify Requirements

3.13 ...Offshore Performance of Certain Work Prohibited

3.14 ...Orders

3.15 ...Statewide Contract Provisions

3.16 ...Multiple-Use Provisions

3.17 ...Other Contractors

3.18 ...Work on State Premises

3.19 ...Advertising, Publishing and Promotion of Contract

4.0 .....Costs and Payments

4.1 .....Payments

4.2 .....Applicable Taxes

4.3 .....Availability of Funds

5.0 .....Contract Changes

5.1 .....Contract Amendments

5.2 .....Assignment and Delegation

6.0 .....Risk and Liability

6.1 .....Risk of Loss

6.2 .....Contractor Insurance

6.3 .....Basic Indemnification

6.4 .....Patent and Copyright Indemnification

6.5 .....Force Majeure

6.6 .....Third Party Antitrust Violations

7.0 .....Warranties

7.1 .....Liens

7.2 .....Conformity to Requirements

7.3 .....Contractor Personnel

7.4 .....Intellectual Property

7.5 .....Compliance with Laws

7.6 .....Licenses and Permits

7.7 .....Operational Continuity

7.8 .....Performance in Public Health Emergency

7.9 .....Lobbying

7.10 ...Survival of Warranties

8.0 .....State's Contractual Remedies

8.1 .....Right to Assurance

8.2 .....Stop Work Order

8.3 .....Non-exclusive Remedies

8.4 .....Nonconforming Tender

8.5 .....Right of Offset

9.0 .....Contract Termination

9.1 .....Termination for Conflict of Interest

9.2 .....Gratuities

9.3 .....Suspension or Debarment

9.4 .....Termination for Convenience

9.5 .....Termination for Default

9.6 .....Continued Performance Required

10.0 ...Contract Claims

10.1 ...Claim Resolution

10.2 ...Mandatory Arbitration

11.0 ...General Provisions for Materials

11.1 ...Applicability

11.2 ...Off-Contract Materials

11.3 ...Compensation for Late Deliveries

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Table of Contents Page 3 of 3

11.4 ...Indicate Shipping Costs on Order

11.5 ...Current Products

11.6 ...Maintain Comprehensive Selection

11.7 ...Additional Products

11.8 ...Discontinued Products

11.9 ...Forced Substitutions

11.10 ..Recalls

11.11 ..Delivery

11.12 ..Delivery Time

11.13 ..Delivery Locations

11.14 ..Conditions at Delivery Location

11.15 ..Materials Acceptance

11.16 ..Correcting Defects

11.17 ..Returns

11.18 ..Order Cancellation

11.19 ..Product Safety

11.20 ..Material Safety Data Sheets. ........................................................... Error! Bookmark not defined.

12.0 ...General Provisions for Services

12.1 ...Applicability

12.2 ...Comprehensive Services Offering

12.3 ...Additional Services

12.4 ...Off-Contract Services

12.5 ...Removal of Personnel

12.6 ...Transitions

12.7 ...Accuracy of Work

12.8 ...Requirements at Services Location

12.9 ...Services Acceptance

12.10 ..Corrective Action Required

13.0 ...Data Handling and Storage

13.1 ...Applicability

13.2 ...Data Protection and Confidentiality of Information

13.3 ...Personally Identifiable Information

13.4 ...Protected Health Information

14.0 ...Information Technology Work

14.1 ...Applicability

14.2 ...Background Checks

14.3 ...Information Access

14.4 ...Pass-Through Indemnity

14.5 ...Systems and Controls

14.6 ...Redress of Infringement

14.7 ...First Party Liability Limitation

14.8 ...Information Technology Warranty

14.9 ...Specific Remedies

15.0 ...Comments Welcome

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Uniform Terms and Conditions

1.0 Definition of Terms

As used in the Contract, the terms listed below are defined as follows:

1.1 Acceptance “Acceptance” means the document headed “Offer and Acceptance Form” bearing the

State contract number once Procurement Officer has signed it to signify (1) State’s formal acceptance of the Accepted Offer and (2) the formation of the Contract. For clarity of intent, the foregoing is not to be confused with the term “acceptance” used throughout the Contract in the context of delivery, inspection, etc., with respect to Materials or

Services.

1.2 Accepted Offer If State did not request a Revised Offer, then “Accepted Offer” means the Initial Offer.

If State did request a Revised Offer but not a Best and Final Offer, then “Accepted Offer” means the latest Revised Offer.

If State requested a Best and Final Offer, then “Accepted Offer” means the Best and

Final Offer.

1.3 Arizona

Procurement Code;

A.R.S.; A.A.C.

“Arizona Procurement Code, “A.R.S.,” and “A.A.C.” are each defined in the Instructions to Offerors.

1.4 Arizona TPT “Arizona TPT” means Arizona Transaction Privilege Tax. For information, refer to the

Arizona Department of Revenue (DOR) website at:

https://www.azdor.gov/business/transactionprivilegetax.aspx.

1.5 Attachment “Attachment” means any item that:

1. the Solicitation required Offeror to submit as part of the relevant Offer

(e.g., Initial Offer, Revised Offer, or BAFO);

2. was attached to an Offer when submitted; and

3. was included in the Accepted Offer.

1.6 Building Work “Building Work” means everything covered by the definitions in A.R.S. § 41-2503

[Definitions] of the terms “construction” (para. 4), "maintenance services" (para. 26), and "operations services" (para. 28).

1.7 Commercial

Document “Commercial Document” means Section 2-B of Part 2 of the Solicitation Documents, provided that, if there is no such Section in the Contract, then “Commercial Document” is to be construed as referring to whatever item in the Contract contains the contracted pricing and payment provisions.

1.8 Contract “Contract” means, collectively, the Acceptance, the Solicitation Documents, the

Accepted Offer, all acknowledged Orders, and any Contract Amendments. See paragraph 1.22. The Contract is identified as a “Purchase Order” in Arizona Procurement

Portal (APP), since that is the terminology used in the software; use of that term in APP is not to be confused with the contractual term “Order” defined in paragraph 1.21.

1.9 Contract

Amendment "Contract Amendment" means a document signed by Procurement Officer that has been issued for the purpose of making changes to the Contract after execution. The term

“Change Order” in Arizona Procurement Portal is to be construed as being synonymous with “Contract Amendment”.

1.10 Contract Terms

and Conditions “Contract Terms and Conditions” means the Special Terms and Conditions and these

Uniform Terms and Conditions taken collectively.

1.11 Contractor “Contractor” means the Person identified on the Accepted Offer who has entered into the

Contract with State.

https://www.azdor.gov/business/transactionprivilegetax.aspx

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1.12 Contractor

Indemnitor “Contractor Indemnitor” means Contractor or any of its owners, officers, directors, agents, employees, or Subcontractors.

1.13 Co-Op Buyer “Co-Op Buyer” means a member of the State Purchasing Cooperative that has entered into a “Cooperative Purchasing Agreement” with the Arizona Department of

Administration State Procurement Office under A.R.S. § 41-2632. Unless there is an applicable Cooperative Purchasing Agreement in effect at the time, a State Purchasing

Cooperative member cannot be a Co-Op Buyer. For reference, “Co-Op Buyer” is to be construed as encompassing “eligible procurement unit” under A.A.C. R2-7-101(23).

NOTE: Membership in the State Purchasing Cooperative is open to all Arizona political subdivisions, including cities, counties, school districts, and special districts. Membership is also available to non-profit organizations, other state governments, the federal government and tribal nations. For reference, “non -profit organizations” are defined in

A.R.S. § 41-2631(4) as any nonprofit corporation as designated by the IRS under section 501(c)(3) through 501(c)(6) of the tax code.

1.14 Day “Day” means a calendar day unless otherwise specified in a particular context.

1.15 Eligible Agency If the Special Terms and Conditions indicates that the Contract is a “single-agency” contract, then “Eligible Agency” means the particular State of Arizona agency, university, commission, or board identified therein. If the Special Terms and Conditions indicates that the Contract is a “statewide” contract, then “Eligible Agency” means any State of

Arizona department, agency, university, commission, or board.

1.16 Gratuity “Gratuity” means a payment, loan, subscription, advance, deposit of money, services, or anything of more than nominal value, present or promised, unless consideration of substantially equal or greater value is received.

1.17 Indemnified Basic

Claims “Indemnified Basic Claims” means any and all claims, actions, liabilities, damages, losses, or expenses, including court costs, attorneys’ fees, and costs of claim processing, investigation and litigation, for bodily injury or personal injury, including death, or loss or damage to any real or tangible or intan gible personal property, collectively. See paragraph 6.3.

1.18 Instructions

to Offerors “Instructions to Offerors” is Section 1-B of Part 1 of the Solicitation Documents.

1.19 Materials “Materials” has the meaning given in A.R.S. § 41-2503(7) to the extent those things are included in the Work, which, for convenience of reference only, is “… all property, including equipment, supplies, printing, insurance, and leases of property [but] does not include land, a permanent interest in land or real property or leasing space.” Materials includes software, except that If software is sold or provided as a service, then to the extent it consists of encoded information or computer instructions it is included in

“Materials” and to the extent it is a service it is in “Services”.

1.20 Offer; Initial Offer;

Revised Offer;

Best and Final

Offer (BAFO)

“Offer,” “Initial Offer,” “Revised Offer,” and “Best and Final Offer” (“BAFO”) are each defined in the Instructions to Offerors.

1.21 Order “Order” means the instrument by which State authorizes Contractor to perform some or all of the Work. Whether the Contract will have one Order or many Orders depends the scope of the Contract and how State will use it. The Special Terms and Conditions provide that information. Any of the following is to be construed as being an “Order”:

1. “Release” or “Release Purchase Order” in APP;

2. “task order”, “service order,” or “job order” when a Release Purchase Order for

Services has already been committed in APP; or

3. “purchase order” for buying by Co-Op Buyers, if co-op buying applies.

1.22 Part, Section;

Exhibit “Part,” “Section,” and “Exhibit” are each defined in the Instructions to Offerors.

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1.23 Person “Person” means any corporation, business, individual, union, committee, club, or other organization or group of individuals.

1.24 Procurement

Officer “Procurement Officer” means the person, or his or her designee, who has been duly authorized by State to enter into and administer the Contract and to make written determinations with respect to the Contract. Procurement Officer is as identified on the

Acceptance unless subsequently changed by Contract Amendment.

1.25 Arizona

Procurement Portal “Arizona Procurement Portal” (APP) means State’s official electronic procurement system, established pursuant to A.A.C. R2-7-201 as set forth in the Arizona Department of Administration State Procurement Office policy document Technical Bulletin No. 020, APP – The Official State eProcurement System.

NOTE (1): Technical Bulletin No. 020 is available online at:

https://spo.az.gov/administration-policy/state-procurement-resource/procurement-regulations

NOTE (2): The URL for APP itself is:

https://appstate.az.gov/

1.26 Scope of Work “Scope of Work” means Section 2-A of Part 2 of the Solicitation Documents.

1.27 Services “Services” has the meaning given in A.R.S. § 41-2503(35), which, for convenience of reference only, is “… the furnishing of labor, time, or effort by [the] [C]ontractor or

[S}ubcontractor which does not involve the delivery of a specific end product other than required reports and performance [but] does not include employment agreements or collective bargaining agreements.” Services includes Building Work and the service aspects of software described in paragraph 1.19.

1.28 Solicitation;

Solicitation

Documents

“Solicitation” and “Solicitation Documents” are defined in the Instructions to Offerors.

1.29 Special Terms

and Conditions “Special Terms and Conditions” are Section 3-A of Part 3 of the Solicitation Documents.

1.30 Specification “Specification” has the meaning given in A.R.S. § 41-2561, which, for convenience of reference only, is “… any description of the physical or functional characteristics, or of the nature of a material, service or construction item. Specification may include a description of any requirement for inspecting, testing or preparing a material, service or construction item for delivery.” Specifications (if any are included in the Contract), are indexed in the Scope of Work and could be bound separately from the other documents forming the Contract.

1.31 State With respect to the Contract generally, “State” means the State of Arizona and its department, agency, university, commission, or board that has executed the Contract.

With respect to administration or rights, remedies, obligations and duties under the

Contract for a given Order, “State” means each of Eligible Agency or Co-Op Buyer who has issued the Order.

1.32 State Indemnitees “State Indemnitees” means, collectively, the State of Arizona, its departments, agencies, universities, commissions, and boards and, and their respective officers, agents, and employees.

1.33 State Fiscal Year “State Fiscal Year” means the period beginning each July 1 and ending each June 30.

1.34 Subcontract “Subcontract” means any contract, express or implied, between Contractor and another party or between a Subcontractor and another party delegating or assigning, in whole or in part, the making or furnishing of any Materials, the performing of any Services, or the carrying out of any other aspect of the Work.

1.35 Subcontractor “Subcontractor” has the meaning given in A.R.S. § 41-2503(38), which, for convenience of reference only, is “… a person who contracts to perform work or render service to …

[C]ontractor or to another [S]ubcontractor as a part of a contract with a state governmental unit . . .”The Contract is to be construed as “a contract with a state governmental unit” for purposes of the definition. For clarity of intent, a Person carrying https://spo.az.gov/administration-policy/state-procurement-resource/procurement-regulations https://appstate.az.gov/

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State Procurement Office out any element of the Work is a Subcontractor from the moment they first carry out that element of the Work regardless of whether or not a Subcontract exists then or subsequently.

1.36 Uniform Terms

and Conditions The “Uniform Terms and Conditions” are made up of this document and whichever of the

Appendices are indicated in the Special Terms and Conditions as being applicable.

1.37 Work “Work” means the totality of the Materials and the Services and all the acts of administration, creation, production, and performance necessary to fulfill and incidental to fulfilling all of Contractor's obligations and duties under the Contract in conformance with the Contract and applicable laws.

2.0 Contract Interpretation

2.1 Arizona Law The Contract is governed by and is to be interpreted in accordance with the laws of the

State of Arizona, including the Arizona Procurement Code, without consideration of conflict of laws principles.

2.2 Implied Terms Each provision of law and any terms required by law to be in the Contract are a part of the Contract as if fully stated in it.

2.3 Usage Where the Contract:

1. assigns obligations to Contractor, any reference to “Contractor” is to be construed to be a reference to “Contractor and all Subcontractors, whether they are first-tier subcontractors, sub-subcontractors, suppliers, sub-suppliers, consultants, or sub-consultants, as well as all of Contractor’s and the

Subcontractors’ respective agents, representatives, and employees” in every instance unless the context plainly requires that it is be a reference only to

Contractor as apart from Subcontractors;

2. uses the permissive “may” with respect to a party’s actions, determinations, etc., the term is to be interpreted as in A.A.C. R2-7-101(31) [Definitions]. For clarity of intent, any right given to State using “State may” or a like construction denotes discretion and freedom to act so far as any regulatory or operative co nstraints permit in the relevant circumstances, provided that: (a) where written “may, at its discretion,” the discretion extends to whatever is most advantageous to State;

and (b) where written only as “may,” the discretion is constrained by what is fair, reasonable, and as accommodating of the respective best interests of both parties as practicable under the circumstances;

3. uses the imperative “shall” with respect to a party’s actions, duties, etc., the term is to be interpreted as in A.A.C. R2-7-101(43) [Definitions]. Conversely, the phrase “shall not” is to be interpreted as an imperative prohibition.

4. uses the term “must” with respect to a requirement, criterion, etc., the term is to be interpreted as conveying compulsion or strict necessity, and is to be read as though written “must, if [the subject] is to be entitled to have [the object] considered or credited as being compliant with, conforming to, or satisfying [the requirement, criterion, constraint, etc.], otherwise, [the object] will be considered or debited as being non-compliant, non-conforming, or unsatisfactory for its

Contract-related purposes” in every instance;

5. uses the term “might” with respect to an event, outcome, action, etc., the term is to be interpreted as conveying contingency or non-discretionary conditionality;

and

6. uses the term “will” or the phrases “is to be” or “are to be” with respect to an event, outcome, action, etc., the term or phrase is to be interpreted as conveying such certainty or imperativeness that “shall” is either unnecessary or irrelevant in that instance.

2.4 Contract Order

of Precedence

2.4.1 COMPLEMENTARY DOCUMENTS. All of the documents forming the Contract are complementary. If certain work, requirements, obligations, or duties are set out only in one but not in another, Contractor shall carry out the Work as though the relevant work, requirements, obligations, or duties had been fully described in all, consistent with

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2.4.2 CONFLICTS. In case of any inconsistency, conflict, or ambiguity among the documents forming the Contract and their provisions, they are to prevail in the following order, descending from most dominate to most subordinate, provided that, among categories of documents or provisions having the same rank, the document or provision with the latest date prevails. Information being identified in one document but not in another is not to be considered a confl ict or inconsistency.

(a) Contract Amendments;

(b) the Solicitation Documents, in the order:

(1) Special Terms and Conditions;

(2) Exhibits to the Special Terms and Conditions;

(3) Uniform Terms and Conditions;

(4) Scope of Work;

(5) Exhibits to the Scope of Work;

(6) Commercial Document;

(7) Exhibits to the Commercial Document;

(8) Specifications; and

(9) any other documents referenced or included in the Solicitation ;

(c) Orders, in reverse chronological order; and

(d) Accepted Offer.

2.4.3 ATTACHMENTS AND EXHIBITS. For clarity of intent, if an item was an

Attachment in the Solicitation Documents or an Offer (either Initial, Revised, Best and

Final, or Accepted) and was subsequently made into an Exhibit, or its content was incorporated into one of the other Contract documents, then that Attachment no longer exists contractually as an “Attachment” since it has at that point been made into some other Contract document. In every other case, an Attachment and the Offeror data therein remain part of the Accepted Offer for purposes of precedence and contractual effect.

2.5 Independent

Contractor Contractor is an independent contractor and shall act in an independent capacity in performance under the Contract. Neither party is or is to be construed as being to be the employee or agent of the other party, and no action, inaction, event, or circumstance will be grounds for deeming it to be so.

2.6 Severability Any term or condition deemed or adjudged illegal or invalid is thereby stricken from the

Contract and will not affect any other term or condition of the Contract.

2.7 Complete

Integration The Contract, including any documents incorporated into the Contract by reference, is intended by the parties as a final and complete expression of their agreement. There are no prior, contemporaneous, or additional agreements, either oral or in writing, pertaining to the Contract.

2.8 No Waiver

of Rights Either party’s failure to insist on strict performance of any term or condition of the

Contract is not and is not to be construed as being, nor will it be deemed to be, a waiver of that term or condition or a bar to , or diminishment of the right of, subsequent enforcement of any term or condition.

3.0 Contract Administration and Operation

3.1 Term of Contract The term of the Contract will commence on the date indicated on the Acceptance and continue for the period specified in the Special Terms and Conditions unless canceled, terminated, or permissibly extended. If the Special Terms and Conditions do not specify a period, then the initial term is 1 (one) year. State has no obligation to extend or renew the Contract past the initial term.

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3.2 Contract

Extensions State may at its discretion extend the initial Contract term in increments of one or more months and do so one or more times, provided that, the maximum aggregate term of the

Contract including extensions cannot exceed the period specified in the Special Terms and Conditions. If the Special Terms and Conditions do not specify a period, then the maximum aggregate term is 5 (five) years.

3.3 Notices and

Correspondence

3.3.1 TO CONTRACTOR. Unless stated otherwise in the Special Terms and

Conditions, State shall:

(a) address all Contract correspondence other than formal notices to the email address indicated as “Default for Type” for “General Mailing Address” in Contractor’s corresponding APP Vendor Profile; and

(b) address any required notices to Contractor to the “Contact Name and Title” at the “Mailing Address” indicated on the Accepted Offer, as that address might have been amended during the term of the Contract.

3.3.2 TO STATE. Unless stated otherwise in the Special Terms and Conditions, Contractor shall :

(a) address all Contract correspondence other than format notices to the email address indicated in “Contact Instructions” in the APP Summary for State; and

(b) address any required notices to State to Procurement Officer identified as

“Purchaser” in the APP Summary at the following mailing address:

Arizona Department of Administration

State Procurement Office

100 N 15th Ave., Suite 201

Phoenix, AZ 85007

3.3.3 CHANGES. State may change the designated Procurement Officer, update contact information, or change the applicable mailing address by Contract Amendment.

3.4 Signing of Contract

Amendments Contractor’s counter-signature – or “approval” in APP, in the case of a Change Order – is not required to give effect if the Contract Amendment only covers either:

1. extension of the term of the Contract within the maximum aggregate term;

2. revision to Procurement Officer appointment or contact information; or

3. modifications of a clerical nature that have no effect on terms, conditions, price, scope, or other material aspect of the Contract.

In every case other than those listed in (1), (2), and (3) above, both parties’ signature – or “approval” in APP, in the case of a Change Order – are required to give it effect.

3.5 Click-Through

Terms and

Conditions

Unless expressly stated otherwise in the Special Terms and Conditions, if either party uses a web based ordering system, an electronic purchase order system, an electronic order acknowledgement, a form of an electronic acceptance, or any software based ordering system with respect to the Contract (each an “Electronic Ordering System”), the parties acknowledge and agree that an Electronic Ordering System is for ease o f administration only, and Contractor is hereby given notice that the persons using

Electronic Ordering Systems on behalf of State do not have any actual or apparent authority to create legally binding obligations that vary from the terms and conditions of the Contract. Accordingly, where an authorized State user is required to “click through” or otherwise accept or be made subject to any terms and conditions in using an

Electronic Ordering Systems, any such terms and conditions are deemed void upon presentation. Additionally, where an authorized State user is required to accept or be made subject to any terms and conditions in accessing or employing any Materials or

Services, those terms and conditions will also be void.

3.6 Books and

Records

3.6.1 RETAIN RECORDS. By A.R.S. § 41-2548(B), Contractor shall retain and shall contractually require each Subcontractor to retain books and records relating for any cost and pricing data submitted in satisfaction of § 41-2543 for the period specified in the statute.

3.6.2 RIGHT TO AUDIT. The retained books and records are subject to audit by State during that period. By A.R.S. § 41-2548(B), Contractor shall retain and shall contractually

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State Procurement Office require each Subcontractor to retain books and records relating to performance under the Contract for the period specified in the statute and those retained books and records are subject to audit by State during that period.

3.6.3 AUDITING. Contractor or Subcontractor shall either make all such books and records under subparagraphs 3.6.1 and 3.6.2 available to State at all reasonable times or produce the records at a designated State office on State’s demand , the choice of which being at State’s discretion . For the purpose of this paragraph, “reasonable times” are during normal business hours and in such a manner so as to not unreasonably interfere with normal business activities.

3.7 Contractor

Licenses Contractor shall maintain current all federal, state and local licenses and permits required for the operation of i ts business in general, for its operations under the

Contract, and, unless expressly stated otherwise in the Special Terms and Conditions, for the Work itself.

3.8 Inspection

and Testing By A.R.S. § 41-2547, State may at reasonable times inspect the part of Contractor’s or

Subcontractors’ plant or places of business related to performance under the Contract.

Accordingly, Contractor agrees to permit (for itself) and ensure (for Subcontractors) access for inspection at any reasonable time to its facilities , processes, and services.

State may inspect or test, at its own cost, any finished goods, work-in-progress, components, or unfinished materials that are be supplied under the Contract or that will be incorporated into something to be supplied under the Contract. If the inspection or testing shows non-conformance or defects, then Contractor will owe State reimbursement or payment of all costs it incurred in carrying out or contracting for the inspection and testing, as well as for any re-inspection or re-testing that might be necessary. Neither inspection of facilities nor testing of goods, work, components, or unfinished materials will of itself constitute acceptance by State of those things.

3.9 Ownership of

Intellectual

Property

3.9.1 RIGHTS IN WORK PRODUCT. Unless otherwise provided for in the Special

Terms and Conditions, all intellectual property originated or prepared by Contractor pursuant to the Contract, including but not limited to, inventions, discoveries, intellectual copyrights, trademarks, trade names, trade secrets, technical communications, records reports, computer programs and other documentation or improvements thereto, including

Contractor’s administrative communications and records relating to the Contract, are considered work product and Contractor’s property, provided that, State has

Government Purpose Rights to that work product as and when it was delivered to State.

(a) “Government Purpose Rights” are:

i. the unlimited, perpetual, irrevocable, royalty free, non-exclusive, worldwide right to use, modify, reproduce, release, perform, display, sublicense, disclose and create derivatives from that work product without restriction for any activity in which State is a party;

ii. the right to release or disclose that work product to third parties for any

State government purpose; and

iii. the right to authorize those to whom it rightfully releases or discloses that work product to use, modify, release, create derivative works from the work product for any State government purpose; such recipients being understood to include the federal government, the governments of other states, and various local governments.

(b) “Government Purpose Rights” do not include any right to use, modify, reproduce, perform, release, display, create derivative works from, or disclose that work product for any commercial purpose or to authorize others to do so.

3.9.2 JOINT DEVELOPMENTS. The parties may each use equally any ideas, concepts, know-how, or techniques developed jointly during the course of th e Contract, and may do so at their respective discretion, without obligation of notice or accounting to the other party.

3.9.3 PRE-EXISTING MATERIAL. All pre-existing software and other materials developed or otherwise obtained by or for Contractor or its affiliates independently of the

Contract or applicable Purchase Orders are not part of the work product to which rights

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State Procurement Office are granted State under subparagraph 3.9.1 above, and will remain the exclusive property of Contractor, provided that:

(a) any derivative works of such pre-existing material or elements thereof that are created pursuant to the Contract are part of that work product;

(b) any elements of derivative work of such pre-existing material that was not created pursuant to the Contract are not part of that work product; and

(c) except as expressly stated otherwise, nothing in the Contract is to be construed to interfere or diminish Contractor’s or its affiliates’ ownership of such pre-existing materials.

3.9.4 DEVELOPMENTS OUTSIDE OF CONTRACT. Unless expressly stated otherwise in the Special Terms and Conditions, the Contract does not preclude

Contractor from developing competing materials outside the Contract, irrespective of any similarity to materials delivered or to be delivered to State hereunder.

3.10 Subcontracts 3.10.1 INITIAL LIST. At the time of Contract execution, Contractor’s candidate

Subcontractors were identified in Attachment 3-C to the Accepted Offer [Proposed

Subcontractors]. Agreeing to them being included in the Accepted Offer signified

Procurement Officer’s advance consent for Contractor to enter into a Subcontract with each candidate, which Contractor shall do as promptly as necessary to ensure its ability to carry out the Work in a timely manner.

3.10.2 ADDITIONAL NAMES. Contractor shal l not enter into a Subcontract without first obtaining Procurement Officer’s written consent with any prospective Subcontractor that

(a) was not listed on Attachment 3-C at time of Contract execution or (b) is for any

Materials or Services categories other than the ones for which they were previously consented. For either case (a) or (b), Contractor shall submit a written request sufficiently in advance of the need date for those materials or services so that performance under the Contract is not impaired. Procurement Officer may request any additional information he or she determines is necessary to assess the submittal, and may withhold consent pending it.

3.10.3 FLOW-DOWN. Contractor shall incorporate the provisions, terms, and conditions of the Contract into every Subcontract by inclusion or by reference, as appropriate. When making any post-execution consent requests, Contractor shall include its warrant that it will do the same for the pending Subcontracts covered by the request.

Entering into Subcontracts will not relieve Contractor of any of its obligations or duties under the Contract, including, among other things, the duty to supervise and coordinate the work of Subcontractors. Nothing contained in any Subcontract will create or is to be construed as creating any contractual relationship between State and the Subcontractor.

3.11 Non-

Discrimination Contractor shall comply with [Arizona] State Executive Order No. 2009-09 and all other applicable federal and state laws, rules, and regulations regarding non-discrimination and equal opportunity, including the Americans with Disabilities Act.

3.12 E-Verify

Requirements As required by A.R.S. § 41-4401, Contractor and each Subcontractor warrants compliance with A.R.S. § 23-214(A) and all federal immigration laws and any regulations relating to the immigration status of their employees. Contractor and each Subcontractor acknowledge that under A.R.S. § 41-4401, State retains the legal right to inspect the papers of any Contractor or Subcontractor employee who works under the Contract to ensure that Contractor or Subcontractor is in compliance with the foregoing warranty and understands that a breach of the foregoing warranty under shall be deemed a material breach of the Contract that is subject to penalties up to and including termination of the

Contract.

3.13 Offshore

Performance of Certain Work

Prohibited

Contractor shall only perform those portions of the Services that directly serve State or its clients and involve access to secure or sensitive data or personal client data within the defined territories of the United States. Unless specifically stated otherwise in the

Specifications or the Scope of Work, this paragraph does not apply to indirect or overhead services, redundant back-up services, or services that are incidental to performance under the Contract. This provision applies to work performed by

Subcontractors at all tiers.

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3.14 Orders 3.14.1 ORDER SUFFICIENCY. The Contract was awarded in accordance with the

Arizona Procurement Code; the transactions and procedures required by the code for competitive source selection have been met. An Order issued as set forth in the Special

Terms and Conditions that cites the correct State contract number will suffice to authorize Contractor to provide the Materials and perform the Services covered by that

Order.

3.14.2 ORDER TERMS. All Orders are subject to the Contract Terms and Conditions;

an Order cannot modify the Contract Terms and Conditions.

3.14.3 ORDERS ARE OBLIGATORY. Until the expiration or earlier termination of the

Contract, State may issue and Contractor shall accept Orders that make proper reference to the Contract and are permissible hereunder, provided that, Contractor is not obliged to accept any Order that is not consistent with the then -current pricing, lead times, specifications, or payment provisions of the Contract. Contractor shall fulfill and complete any Orders that are begun but not yet completed as of expiration or earlier termination of the Contract unless State instructs otherwise at the time.

3.14.4 SPECIAL CASE. In the special case where both the following conditions are true, Procurement Officer’s signature on the Acceptance is Contractor’s authorization to perform and therefore no Order is required: (a) the Contract is identified as being a

“single-agency/single-project” contract in the Special Terms and Conditions and (b) the

Contract was created in APP as something other than a “Master/ Blanket” type.

3.14.5 NO MINIMUMS OR COMMITMENTS. Unless expressly stated otherwise in the

Special Terms and Conditions: (a) Contractor shall not impose any minimum dollar amount, item count, services volume, or services duration on Orders; (b) State makes no commitment of any kind concerning the quantity or monetary value of activity actually initiated or completed during the term of the Contract; (c) Contractor shall only deliver or perform as authorized by Orders; and (d) State is not limited as to the number of Orders it may issue for the Contract. For clarity of intent, the foregoing applies equally whether an Eligible Agency issues the Order or, if applicable, a Co -Op Buyer issues it.

3.14.6 NON-CONTRACTED MATERIALS OR SERVICES. Any attempt to knowingly represent for sales, marketing, or related purposes that goods or services not specifically awarded are under a State contract is a violation of the Contract and law.

3.15 Statewide Contract

Provisions If the Special Terms and Conditions indicate that the Contract is for statewide use, then the following provisions apply:

1. Contractor shall verify if an ordering entity is a bona fide Co -Op Buyer before selling Materials to or providing Services for them under the Contract. The current list of Co-Op Buyers is available on the State Procurement Office website:

https://spo.az.gov/procurement-services/cooperative-procurement/state-purchasing-cooperative

2. Contractor shall sell to Co-Op Buyers at the same price and on the same lead times and other terms and conditions under which it sells to Eligible Agencies, with the sole exception of any legitimately additional costs for extraordinary shipping or delivery requirements if the Co-Op Buyer is having Materials delivered or installed or Services performed at locations not contemplated in the contracted pricing (e.g. delivery to a location outside Arizona).

3. Contractor shall pay State an administrative fee against all Contract sales to

Co-Op Buyers, as provided for under A.R.S. § 41-2633. The fee rate is specified in the Special Terms and Conditions. Failure to remit the administrative fees is a material breach of contract, and will entitle State to its remedies under Article 8 and its right to terminate for default under Article 9. Method of calculation, payment procedures, and other details are provided on the State Procurement

Office website:

https://spo.az.gov/contractor-resources/statewide-contracts-administrative-fee

4. Contractor shall submit to State a quarterly usage report documenting all

Contract sales to both Eligible Agencies and Co -Op Buyers, itemized separately.

https://spo.az.gov/procurement-services/cooperative-procurement/state-purchasing-cooperative https://spo.az.gov/contractor-resources/statewide-contracts-administrative-fee

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Contractor shall further itemize divisions, groups or areas within a given Eligible

Agency if they place Orders independently of each other. Failure to submit the report is a material breach of contract, and will entitle State to its remedies under

Article 8 and its right to terminate for default under Artic le 9. Contractor shall submit the report using the forms and following the instructions on the State

Procurement Office website:

https://spo.az.gov/contractor-resources/statewide-contracts-administrative-fee

5. Contractor shall acknowledge each Order from Eligible Agencies within 1 (one) business day after receipt by either: (a) “approving” the Order electronically in

APP, which will indicate Contractor’s unquali fied acceptance of the Order as-issued; or (b) “rejecting” the Order electronically in APP, with a concurrent explanation by email to relevant originator as to the reason for rejecting it. By way of reminder, the only grounds on which Contractor may reject or refuse an

Order are those set out in subparagraph 3.14.3 [Orders are Obligatory]. Unless and until Contractor has approved the Order in APP, it will have no effect under the Contract and will not oblige either State or Contractor. If the relevant Eligible

Agency explicitly instructs at the time that a verbal acceptance is sufficient because of urgency or other unusual circumstances and Contractor duly gives its verbal acceptance, then Contractor will be deemed to have accepted the Order immediately upon commencing performance, provided that, Contractor must follow-up its verbal acceptance by accepting the Purchase Order electronically in

APP within 3 (three) business days. Contractor shall thereafter be barred from subsequently rejecting the Order in APP and if it does so the rejection will be void.

6. Contractor shall acknowledge each Order from Co -Op Buyers in conformance with each buyer’s instructions given at the time of ordering or in any supplemental participating agreement Contractor might have with them. Orders from Co-Op Buyers create no obligation on State’s part, since they are entirely between the Co-Op Buyer and Contractor. That notwithstanding, Contractor’s obligation under the Contract is to service Co -Op Buyers commercially as though they were with an Eligible Agency, and Contractor’s refusal to do so would be a material breach of the Contract.

3.16 Multiple-Use

Provisions If the Special Terms and Conditions indicate that the Contract is for statewide use, then

Eligible Agencies may issue Orders for Services in several forms, all of which become final and effective by a “Release Purchase Order” in APP. Orders issued by Co-Op

Buyers will be in whatever form the Co-Op Buyer normally uses. Regardless of origin, Orders must cite the State contract number to be valid. State may, at its discretion in each instance, determine the scope, schedule, and price for each Order in any of the following ways:

1. By choosing some or all of the Materials or Services items covered by th e

Contract for which a price is established in the Commercial Document, then preparing an Order using those prices (e.g., filling out an order form), and sending it to Contractor.

2. By instructing Contractor to provide a comprehensive proposal of item quantities, combinations, etc., or services hours, personnel, etc., for a defined scope using those established prices as a basis, then validating and negotiating the proposal with Contractor and issuing an Order if and when reaching agreement.

3. As described in (2) above but requesting the proposal from both Contractor and other vendors who are contracted within the applicable scope categories and locations, either sequentially or concurrently, then selecting the proposal or proposals combination that is most advantageous to State.

4. As described in (3) above but introducing ad-hoc commercial competition by making the selection and ordering conditional on obtaining more favorable prices than the contractually-established ones.

When evaluating the proposals under (3) and (4) above, State may select based on price (for example, a quoted number of hours times the contracted or improved rate plus a fixed amount for incidentals), by experience and qualifications (for example, having an https://spo.az.gov/contractor-resources/statewide-contracts-administrative-fee

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State Procurement Office office nearer the required work location), or whatever combination thereof it determines is most appropriate to the work in question.

3.17 Other

Contractors State may undertake with its own forces or award other contracts to the same or other vendors for additional or related work. In such cases, Contractor shall cooperate fully with State’s employees and such other vendors and carefully coordinate, fit, connect, accommodate, adjust, or sequence its work to the related work by others. Where the

Contract requires handing-off Contractor’s work to others, Contractor shall cooperate as

State instructs regarding the necessary transfer of its work product, services, or records to State or the other vendors. Contractor shall not commit or permit any act that interferes with the State’s or other vendors’ performance of their work, provided that, State shall enforce the foregoing section equitably among all its vendors so as not impose an unreasonable burden on any one of them.

3.18 Work on State

Premises

3.20.1 COMPLIANCE WITH RULES. Contractor is responsible for ensuring that its personnel comply with State’s rules, regulations, policies, documented practices, and documented operating procedures while delivering or installing Materials or performing

Services on State’s grounds or in its facilities. For clarity of intent, the foregoing means that if Contractor is required to comply with certain security requirements in order to deliver, install, or perform at that particular location, then it shall do so nonetheless and without entitlement to any additional compensation or additional time for performance if those particular requirements are not expressly stated in the Contract. Contractor is reminded that violation of the prohibition under A.R.S. § 13-1502 against possession of weapons on State’s property by anyone for whom Contractor is responsible is a material breach of contract and grounds for termination for default.

3.20.3 PROTECTION OF GROUNDS AND FACILITIES. Contractor shall deliver or install the Materials and perform the Services without damaging any State grounds or facilities. Contractor shall repair or replace any damage it does cause promptly and at its own expense, subject to whatever instructions and restrictions State needs to make to prevent inconvenience or disruption of operations. If Contractor fails to make the necessary repairs or replacements and do so in a timely manner, State will be entitled to exercise its remedies under paragraph 8.5 [Right of Offset].

3.19 Advertising, Publishing and

Promotion of

Contract

Contractor shall not advertise, promote, or otherwise use information concerning the

Contract for commercial benefit without the prior written approval of Procurement Officer, which approval Procurement Officer may withhold at his or her discretion.

4.0 Costs and Payments

4.1 Payments 4.1.1 PAYMENT DEADLINE. State shall make payments in compliance with Arizona

Revised Statues Titles 35 and 41. Unless and then only to the extent expressly stated otherwise in the Commercial Document, State shall make payment in full for Materials that have been delivered and accepted and Services that have been performed and accepted within the time specified in A.R.S. § 35-342 after both of the following become true: (a) all of the Materials being invoiced have been delivered or installed (as applicable) and accepted and all of the Services being invoiced have been performed and accepted; and (b) Contractor has provided a complete and accurate invoice in the form and manner called for in the Commercial Document, provided that, State will not make or be liable for any payments to Contractor until Contractor has registered properly in APP and provided a current IRS Form W-9 to State unless excused by law from providing one.

4.1.2 PAYMENTS ONLY TO CONTRACTOR. Unless compelled otherwise by operation of law or…