RFQ for Req PCR-19-00885 - RFQ.docx

Commonwealth of Massachusetts Executive Office of Technology Services and Security

Commonwealth of Massachusetts – Executive Office of Technology Services and Security

Request for Quotation RFQ 19-00885

EOTSS Netapp refresh

April 5, 2019

COMMBUYS BID NUMBER: BD-19-1060-ITD00-ITD00-37853

THIS RFQ IS A PUBLIC RECORD. ALL RESPONSES HERETO INCLUDING THE WINNING BID(S) SHALL BECOME PUBLIC RECORD AS OF THE DATE THE CONTRACT REFERENCED HEREIN IS AWARDED, AND CAN BE OBTAINED FROM THE EXECUTIVE OFFICE OF TECHNOLOGY SERVICES AND SECURITY, LEGAL UNIT BY SENDING AN EMAIL TO MICHELLE.BURWELL@STATE.MA.US. ANY PORTIONS OF A RESPONSE THAT ARE LABELED AS CONFIDENTIAL WILL STILL BE CONSIDERED PUBLIC RECORD UNLESS EXEMPT UNDER APPLICABLE LAW.

Contents

1. General Procurement Information

Purchasing Department: Executive Office of Technology Services and Security

Procurement Contact: Nelson Wong

Telephone: 617-626-4553

E-Mail Address: nelson.wong@mass.gov

RFQ File Number and Title: RFQ 19-00885 EOTSS Netapp refresh

This Request for Quotes (“RFQ”) does not commit the Commonwealth of Massachusetts (“Commonwealth”) or the Executive Office of Technology Services and Security (“EOTSS”) to approve a Statement of Work, pay any costs incurred in the preparation of a Bidder’s response to this RFQ or to procure or contract for products or services. EOTSS reserves the right to accept or reject any and all proposals received as a result of this RFQ and to contract for some, all or none of the products and services as a result of this RFQ. EOTSS further reserves the right to negotiate with any or all qualified Bidders and to cancel in part or in its entirety this RFQ if it is in the best interest of EOTSS or the Commonwealth of Massachusetts to do so.

EOTSS reserves the right to amend this RFQ at any time prior to the date the responses are due. Any such amendment will be posted to the Commonwealth’s procurement website, Commbuys. Bidders are advised to check this site regularly, as this will be the sole method used for notification of changes.

This RFQ is restricted to vendors on the statewide contract ITC47 Category 4 and 6.

2. Agency

EOTSS is responsible for the provision of infrastructure services, development of IT policy, and implementation and oversight of all information technology investments for the Commonwealth and its respective agencies. In addition, EOTSS provides the processing and application programming services for many state departments using some of the most advanced hardware and software available.

3. Description and Purpose of Procurement

a. Background b.

EOTSS is issuing this RFQ to solicit proposals from qualified Bidders to provide NetApp hardware, software, and installation service for MITC 200 Arlington St., Chelsea, MA 02150 and SDC 53 Elliott St., Springfield, MA, 01105.

c. Description of Requested Goods

On behalf of the Commonwealth of Massachusetts, EOTSS is issuing this RFQ to obtain the products described in Table 1 below. Quote must follow the tables, there needs to be a list for site 1 and site 2.

TABLE 1

PRODUCTS

(H, S, SVC)

Site 1: MITC 200 Arlington St., Chelsea, MA 02150

Site 2: SDC 53 Elliott St., Springfield, MA, 01105

Grand Total

d. Description of Requested Services

In addition, EOTSS seeks quotes for maintenance and support listed in Table 2 below for a three-year period. EOTSS may renew all or some maintenance and support services for subsequent years via a written agreement. Bidder must agree that the rate of maintenance and support for each successive year beyond the initial three (3) years will not increase more than 2% of the annualized rate for maintenance and support for the previous year.

TABLE 2

MAINTENANCE AND SUPPORT

Site 1: MITC 200 Arlington St., Chelsea, MA 02150

Site 2: SDC 53 Elliott St., Springfield, MA, 01105

Grand Total

Bidders must describe how the maintenance and support provided in Table 2 above is differentiated from the required warranty service(s), as defined in Section 3d of this RFQ. In addition, Bidders must submit MS Word version of the applicable hardware and software maintenance and support agreements.

d. Additional Requirements Warranties and Guarantees In accordance with, and in addition to, the warranties and guarantees included in the statewide contract ITC47, Bidders must agree to the following:

1. All equipment must come with the basic manufacturer’s warranty. New equipment that is not covered by the manufacturer’s warranty may be returned at any time for a full refund.

1. All new telecommunications systems and equipment must include a full one year warranty (“Warranty Period”) covering all hardware, software, and labor to maintain the telecommunications system and any peripheral systems purchased by EOTSS. The Bidder must state that it guarantees the length of the extended warranty period in its response.

1. The Warranty Period shall commence upon the acceptance of the equipment by EOTSS, as defined in the Statement of Work and the RFR. During any Warranty Period, Bidders must supply unlimited free telephone technical support, accessible toll-free, 24 x 7 x 365 (24 hours per day, 7 days per week, every day except holidays). Maximum response time for calls is 4 hours.

1. During the Warranty Period, Bidders must provide an on-site service, with no charges for parts, labor or transportation. On-site service must be provided Monday through Friday during the hours of 8 AM to 6 PM, with the exception of certain federal and state holidays. Bidders must respond to a service call within four (4) hours with a call back from the initial problem call and next business day on-site response time from the call back.

1. Bidder shall identify the type and cost of any additional warranty (or warranties) available, including without limitation extending the basic manufacturer’s warranty or providing service upgrades.

1. Bidders must provide OEM replacement parts for the length of any Warranty Period. Replacement parts must be standardized and identical with the parts being replaced.

4. Order of Precedence

The contract resulting from this RFQ shall consist of the following documents in the following order of precedence:

5. Event Calendar

6. Submission Requirements All responses to this RFQ are due no later than the date and time listed in the Event Calendar above or they will not be evaluated. Respondents should submit their response through COMMBUYS. If Bidder has any issues with responding through COMMBUYS, it should contact the COMMBUYS Help Desk at COMMBUYS@state.ma.us or call during normal business hours (8AM – 5PM Monday – Friday) at 1-888-627-8283 or 617-720-3197.

Bidders must allow enough time to upload all documents to Commbuys prior to the Bid Open date and time listed in the Even Calendar or they will be locked out of COMMBUYS. EOTSS will not be able to accept any bid not fully loaded and accepted in COMMBUYS.

It should be noted that file names should not use symbols.

Note: Do not select “No Bid” under the item tab when submitting the quotes in Commbuys and make sure it is not pre-selected. Selecting “No Bid” will prevent the vendor from getting awarded the bid in Commbuys.

Useful Link:

· Job aid on how to submit a quote:

https://www.mass.gov/files/documents/2019/03/19/Create-Quote-In-COMMBUYS.pdf

7. Bidder Responses

Bidders’ responses should include, at a minimum, the following:

1. A Cover Letter in which the Bidder states that they agree to the terms of this RFQ and the terms of documents (1) through (4) listed in Section 4 (Order of Precedence).

2. A Business Proposal to include but not limited to, License terms, hardware and software support terms that includes the following:

a. Unlocked, editable copies of all relevant warranty terms and any other boilerplate forms related to the procurement of the Bidder’s proposal, submitted in MS Word or MS Excel format.

3. A Cost Proposal that includes the following:

a. A copy of Table 1 above including relevant pricing.

b. A copy of Table 2 above including relevant pricing.

c. A separate, valid firm fixed price quote on company letterhead/form based on items in Table 1 and Table 2 above that can be used to issue a purchase order. The quote must include address and contact information for the person to whom the quote can be sent.

d. The Cost Proposal must be an all-inclusive fixed price bid, including all costs and expenses related to this engagement, including without limitation: cost of the products, hardware, delivery services. The Commonwealth will not pay any costs and expenses not included in the Cost Proposal. Cost Proposal should be good for 90 Days.

4. The response must include how long it will take to deliver the equipment once a PO is issued. EOTSS is looking for equipment to be delivered and installed by June 1, 2019.

8. Evaluation Criteria

The responses to this RFQ will be evaluated based on the criteria listed below. The criteria are listed in descending order of importance with the most important criteria listed first. Extraneous marketing or promotional materials are discouraged and such information will not be factored into the evaluation of vendors. The procurement management team reserves the right to remove from further consideration non-responsive bids, bids that include pricing that is outside of EOTSS’ budgetary allocation for this project, bids that include attempts by the Bidder to alter the Commonwealth’s standard legal terms, and bids that fail to meet one or more of the requirements of this RFQ.

A Bidder’s response will be excluded for failure to agree to the order of precedence set forth in Section 4 of this RFQ, failure to respond to any requests from the procurement management team (including without limitation any questions, responses to requests for clarifications, and requests for best and final offers). A Bidder’s response will also be excluded if submitted by an entity other than an ITT50 vendor.

Prior to such an exclusion, EOTSS reserves the right to request one or more clarification(s) from the Bidder confirming Bidder’s acceptance of the order of precedence or to request one or more clarification(s) from the reseller to confirm that it is the Bidder and any responses submitted directly to EOTSS by a vendor with pricing from the reseller are, in fact, part of the reseller’s response. Any remaining responses will be evaluated based upon the criteria listed below in descending (and/or equal for consecutive items) order of importance with the most important criteria listed first.

1. Total cost to EOTSS

9. Miscellaneous

A. Contract Amendments

EOTSS reserves the right to amend this RFQ or any contract resulting from this RFQ. EOTSS may negotiate changes to the original performance measures, reporting requirements or payment methodologies tied to performance at any time during the contract duration if they are consistent with the specifications of this RFQ. EOTSS reserves the right to negotiate and execute contract amendments with the awarded Bidder(s) which EOTSS determines as necessary to result in the intent of this RFQ, to amend the specifications for necessary requirements, or to result in a better valued contract. Amendments may include, but are not limited to, contract dollars, contract performance, increased or decreased obligations, scope of work, quantity, etc.

B. Review Rights

Responses to this RFQ may be reviewed and evaluated by any person(s) at the discretion of EOTSS including non-allied and independent consultants retained by EOTSS now or in the future, for the sole purpose of obtaining an analysis of responses. Any and all respondents may be asked to further explain or clarify in writing areas of their response during the review process. EOTSS retains the right to request further information from one or more respondents or to request one or more respondents to provide a demonstration or attend an in-person interview.

C. Proprietary Notices.

All bids submitted in response to this RFQ shall be public record. All notices included in such bids to the effect that bid content is confidential or proprietary, that the distribution of such bids is prohibited or that by opening or accepting the bid EOTSS is accepting such terms, are null and void, and any portions of the response so marked shall still be considered public record.

ATTACHMENT A

STATEMENT OF WORK

BETWEEN

EXECUTIVE OFFICE OF TECHNOLOGY SERVICES AND SECURITY

AND

[VENDOR NAME]

FOR THE

[PROJECT NAME]

1. INTRODUCTION

The following document will serve as a Statement of Work (“SOW”) between the Executive Office of Technology Services and Security (“EOTSS”) [of the [Name Parent Agency]] and [Vendor Name] (“[Vendor Abbreviation]”) to apply to work on the [Name of System or Project to be Completed] ([Abbreviated Project Name]). The entire agreement (the “Agreement”) between the parties consists of the following documents in the following order of precedence: (1) the Commonwealth Standard Terms and Conditions; (2) the Commonwealth’s Standard Form Contract; (3) Request for Response ITC47 (“RFR”) ; (4) [Vendor Abbreviation]’s response thereto; (5) the Request for Quotes [name and date of Agency’s RFQ] (“RFQ”); (6) this SOW and any other documents negotiated between the parties under the RFQ; and (7) [Vendor Abbreviation]’s response to the RFQ.

2. DEFINITIONS

The terms used in this SOW, unless defined in this SOW or in an amendment made hereto, shall have the meaning ascribed to them in the other documents that constitute the Agreement between the parties.

“Deliverable” means any work product that [Vendor Abbreviation] delivers for the purposes of fulfilling its obligations to EOTSS under the terms of the Agreement, including work product that [Vendor Abbreviation] must submit to EOTSS for EOTSS’s approval in accordance with the formal acceptance procedures set forth within the SOW or the Task Order(s) entered into hereunder.

“Milestone Payment” means a defined payment amount associated with the completion of a particular Deliverable or set of Deliverables.

“Task” means a material activity engaged in by [Vendor Abbreviation] for the purpose of fulfilling its obligations to EOTSS under the terms of the Agreement, which may or may not result in the creation of a Deliverable.

“Task Order” means an amendment to this SOW that specifies Tasks, Deliverables, or hourly rate services to be completed by [Vendor Abbreviation] under the terms of this Agreement.

3. OVERVIEW, EFFECTIVE DATE AND TERM

[Provide a high level description of the project, including the purpose of the project, outcomes, expected timeframe, and brief description of the business need for the project.]

This Agreement’s term (the “Term”) begins on the date on that it is executed by both parties (the “Effective Date”) and shall terminate at 5:00 p.m. on [INSERT END DATE] (“Termination Date”). Notwithstanding the foregoing, Sections 5.1 and 5.2 of System Security, Section 11.2 Warranty, and Section 11.3, Title and Intellectual Property Rights [Agency choose other sections that will survive termination] shall survive the termination of the remainder of this SOW.

[Vendor Abbreviation] and EOTSS will each assign a single point of contact with respect to this SOW. It is anticipated that the contact person will not change during the Term of this Agreement. In the event that a change is necessary, the party requesting the change will provide prompt written notice to the other. In the event a change occurs because of a non-emergency, two-week written notice is required. For a change resulting from an emergency, prompt notice is required.

[Vendor Abbreviation]’s contact person is [Vendor Contact Name and Title], who can be reached at [Vendor Contact Address, phone number(s), email].

EOTSS’s contact is [Agency Contract Name and Title] who can be reached at [Agency Contact Address, phone number(s), email].

4.2. Subcontractors [If the Vendor is not using subcontractors, delete the two paragraphs below and substitute the following sentence: “[Vendor Abbreviation] shall not use subcontractors for work performed under this SOW.”] [Vendor Abbreviation] shall take full responsibility for project management. [Vendor Abbreviation] shall submit all subcontracts related to work to be performed hereunder for approval by EOTSS within two weeks of the Execution Date of this SOW and within two weeks for any Task Order issued hereunder which entails work by [Vendor Abbreviation] subcontractors. [Vendor Abbreviation] shall ensure that its subcontractor(s) that perform work efforts under this SOW shall comply with all terms of the Agreement.

[Vendor Abbreviation] will act as prime contractor for each of its subcontractors and will be responsible for the performance of each such subcontractor. [Vendor Abbreviation] must submit for approval, be responsible for, and pass on all covenants, and warranties, etc. to each such subcontractor.

5. SYSTEM SECURITY

As part of its work efforts under this SOW, [Vendor Abbreviation] will be required to use Commonwealth data and IT resources. For purposes of this work effort, “Commonwealth Data” shall mean data provided by the EOTSS to [Vendor Abbreviation], which may physically reside at a Commonwealth or EOTSS or [Vendor Abbreviation] location.

5.1 Commonwealth Data

In connection with Commonwealth Data, [Vendor Abbreviation] will implement commercially reasonable safeguards necessary to:

5.1.1 Prevent unauthorized access to Commonwealth Data from any public or private network;

5.1.2 Prevent unauthorized physical access to any information technology resources involved in the development effort; and

5.1.3 Prevent interception and manipulation of Commonwealth Data during transmission to and from any servers.

5.2 Commonwealth Personal Data

In addition to the above requirements for Commonwealth Data, [Vendor Abbreviation] may be required to use the following Commonwealth personal data under MGL ch. 66A and/or personal information under MGL ch. 93H, or to work on or with information technology systems that contain such data as [here agency should list the categories of such data that the vendor will be required to use] in order to fulfill part of its specified tasks. For purposes of this work effort, electronic personal data and personal information includes data provided by the EOTSS to [Vendor Abbreviation] which may physically reside at a location owned and/or controlled by the Commonwealth or EOTSS or [Vendor Abbreviation]. In connection with electronic personal data and personal information, [Vendor Abbreviation] shall implement the maximum feasible safeguards reasonably needed to:

5.2.1 Ensure the security, confidentiality and integrity of electronic personal data and personal information;

5.2.2 Prevent unauthorized access to electronic personal data or personal information or any other Commonwealth Data from any public or private network;

5.2.3 Notify EOTSS immediately if any breach of such system or of the security, confidentiality, or integrity of electronic personal data or personal information occurs.

5.2.4 [Vendor Abbreviation] represents that it has either executed the Commonwealth’s Standard Contract Form, which includes EO504 certification, or executed the EO504 Contractor Certification Form, available at http://www.mass.gov/anf/research-and-tech/policies-legal-and-technical-guidance/legal-guidance/privacy-and-security/exec-order-504/.

5.3 Software Integrity Controls [Address the following controls if applicable, usually in the case wherein the Vendor will be developing code and migrating that code to a production environment] [Vendor Abbreviation] and EOTSS recognize the serious threat of fraud, misuse, and destruction or theft of data or funding. These threats could be introduced when unauthorized or inappropriate modifications are made to a production system. [Vendor Abbreviation] shall implement the following controls for the purpose of maintaining software integrity and traceability throughout the software creation life cycle, including during development, testing, and production:

5.3.1 [Vendor Abbreviation] shall configure at least two software environments including a development/quality assurance (QA) environment and a production environment.

5.3.2 [Vendor Abbreviation] shall implement a change management procedure to ensure that activities in the development/QA environment remain separate and distinct from the production environment. In particular the change management procedure shall incorporate at least the following:

5.3.2.1 Segregates duties between development and testing of software changes and migration of changes to the production environment;

5.3.2.2 Implements security controls to restrict individuals who have development or testing responsibilities from migrating changes to the production environment.

5.3.2.3 Includes a process to log and review all source control activities.

5.3.3 [Vendor Abbreviation] shall implement a source control tool to ensure that all changes made to the production system are authorized, tested, and approved before migration to the production environment.

5.3.4 [Vendor Abbreviation] shall not make any development or code changes in a production environment.

5.3.5 [Vendor Abbreviation] shall implement additional internal controls as specified in [Agency and Vendor incorporate attachment if relevant].

6. ACCEPTANCE OR REJECTION PROCESS

[Vendor Abbreviation] will submit the required Deliverables specified in this SOW, or any Task Order entered into hereunder, to the EOTSS Project Manager for approval and acceptance. EOTSS will review work product for each of the Deliverables and evaluate whether each Deliverable has clearly met in all material respects the criteria established in this Agreement and the relevant Task Order specifications. Once reviewed and favorably evaluated, the Deliverables will be deemed acceptable.

Within ten (10) working days of receipt of each Deliverable, the EOTSS Project Manager will notify [Vendor Abbreviation], in writing, of the acceptance or rejection of said Deliverable using the acceptance criteria specified in this Section and associated with the Task or Deliverable specifications in this Agreement. A form signed by EOTSS shall indicate acceptance. [Vendor Abbreviation] shall acknowledge receipt of acceptance forms in writing. Any rejection will include a written description of the defects of the Deliverable. If EOTSS does not respond to the submission of the Deliverable, within five (5) working days of EOTSS’s receipt of each Deliverable, [Vendor Abbreviation] shall provide a reminder notice to the EOTSS Project Manager. If EOTSS fails to reject a Deliverable within five (5) business days after EOTSS’s receipt of the reminder notice, the Task or Deliverable is deemed accepted.

If EOTSS rejects a Deliverable, [Vendor Abbreviation] will, upon receipt of such rejection, act diligently to correct the specified defects and deliver an updated version of the Deliverable to the Commonwealth. EOTSS will then have an additional 5 (five) business days from receipt of the updated Deliverable to notify [Vendor Abbreviation], in writing, of the acceptance or rejection of the updated Deliverable. Any such rejections will include a description of the way in which the updated Deliverable fails to correct the previously reported deficiency.

Following any acceptance of a Deliverable which requires additional work to be entirely compliant with the pertinent specifications, and until the next delivery, [Vendor Abbreviation] will use reasonable efforts to provide a prompt correction or workaround.

7. PROJECT MANAGEMENT

[Vendor Abbreviation] and EOTSS must notify the other party’s Project Managers of any change in the name, address, phone number, fax number, or email address of their respective Project Manager.

7.1 EOTSS Project Manager

[INSERT NAME OF Agency Abbreviation Designed Project Manager, Agency Project Manager Title] (“EOTSS’s Project Manager”) shall perform project management on behalf of EOTSS for this engagement. EOTSS’s Project Manager will:

7.1.3 Review weekly status reports and schedule weekly meetings with [Vendor Abbreviation], as necessary.

7.1.4 Coordinate participation from [name other agencies and/or vendors] as required during the engagement.

7.1.5 Acquire EOTSS project team members as needed.

7.1.6 Coordinate EOTSS’s review of the Deliverables and sign an acceptance form to signify acceptance for each accepted Deliverable.

EOTSS’s Project Manager reports to [name and title], who reports to [name and title][repeat this phrase until last named individual is agency head]. [Name individual, with title] will sign this SOW and all amendments hereto on behalf of EOTSS.

7.2 Vendor Project Manager

[The parties may insert additional language in this Section to incorporate the vendor’s additional project management practices for project planning, tracking, reporting and management, including the types, frequency and contents of reports that will be provided by the developer to the agency.]

[INSERT NAME OF Vendor Abbreviation Designed Project Manager, Vendor Project Manager Title] (“[Vendor Abbreviation]’s Project Manager”) shall perform project management on behalf of [Vendor Abbreviation] for this engagement. [Vendor Abbreviation]’s Project Manager will:

7.2.1 Be responsible for administering this Agreement and the managing of the day-to-day operations under this Agreement.

7.2.2 Serve as an interface between the EOTSS Project Manager and all [Vendor Abbreviation] personnel participating in this engagement.

7.2.3 Develop and maintain the Project Management Plan, in consultation with the EOTSS Project Manager.

7.2.4 Facilitate regular communication with the EOTSS Project Manager, including weekly status reports/updates, and review the project performance against the project plan. Facilitate weekly project status meetings for the duration of the engagement.

7.2.5 Update the project plan on a weekly basis and distribute at weekly meetings for the duration of the engagement.

7.2.6 Sign acceptance forms to acknowledge their receipt from EOTSS.

7.2.7 Be responsible for the management and deployment of [Vendor Abbreviation] personnel.

[Vendor Abbreviation]’s Project Manager reports to _____, who reports to_____ [repeat until reaching engagement partner or equivalent]. [Name and title], being an authorized signatory named in [Vendor Abbreviation]’s response to RFR, will sign this SOW and all amendments thereto on behalf of [Vendor Abbreviation].

7.3 Issue Resolution

The Project Managers from each organization bear the primary responsibility for ensuring issue resolution. If they mutually agree that they are unable to resolve an issue, they are responsible for escalating the issue to [insert name and title of respective persons at agency and vendor].

8. Amendments to the Scope of Work

This Agreement may be amended prior to the end of the Term. The Project Manager who would like to request a change in scope for this engagement or any other terms contained within the Agreement, will provide the suggested amendment in writing to the other party’s Project Manager. The Project Managers will jointly determine whether the change impacts any terms contained within the Agreement. The parties may mutually agree to the change through a written amendment to this SOW.

For any amendment entered into under this Agreement where [Vendor Abbreviation] will be providing services on a Time and Materials basis, the parties shall apply the Time and Materials terms as described in Section 12 of this SOW to the relevant Task Order.

9. Personnel

9.1 Key Personnel

[Vendor Abbreviation] agrees to provide the following personnel for the following amounts of time for the duration of this project:

TABLE 1

KEY PERSONNEL

[Vendor Abbreviation] shall assign all of the foregoing personnel to this engagement on the time basis set forth in Table 1. In the event that a change is necessary, [Vendor Abbreviation] Project Manager will provide prompt written notice to EOTSS Project Manager of the proposed change. If the personnel change is a result of a non-emergency, the [Vendor Abbreviation] Project Manager shall provide the EOTSS Project Manager two-week written notice. For personnel changes that result from an emergency, [Vendor Abbreviation] Project Manager shall provide prompt written notice to EOTSS Project Manager. EOTSS Project Manager has the right to accept or reject all personnel. [Vendor Abbreviation]’s personnel must comply with the Executive Office of Technology Services and Security’s relevant Policies, Standards and Guidance, located at www.mass.gov/EOTSS, and EOTSS’s workplace policies, located at [Agency – put in URL for location of relevant workplace policies or attach policies to SOW].

9.2 Equipment, Work Space, Office Supplies

EOTSS will provide [workspace, cubicles, standard office equipment, and standard network connectivity provided to state employees] for [Vendor Abbreviation] team members working on-site for activities defined by this SOW or in the relevant Task Order. [Vendor Abbreviation] will submit a list of employees who will need access to the building and to state systems before execution of this SOW. Any [Vendor Abbreviation] employees who have access to IT resources must comply with the “Acceptable Use Policy” (see www.mass.gov/EOTSS) or any alternative Acceptable Use Policy adopted by the EOTSS.

9.3 Related Project Knowledge

In addition to the “Statewide Contract IT Specifications” and all other terms of RFR, [Vendor Abbreviation] shall, prior to commencing any other work under this SOW, become familiar with the following documents: [here list any other material that the vendor must master in order to perform under the contract, such as prior studies, agreements, reports, etc.].

9.4 Intellectual Property and Work Effort Agreement for [Vendor Abbreviation]’s Employees, Contractors and Consultants and Agents

[Vendor Abbreviation] shall ensure that each of [Vendor Abbreviation] personnel providing services under this SOW, regardless of whether the individual is an employee, contractor, or agent of [Vendor Abbreviation], shall, prior to rendering any services under this SOW, sign the “Intellectual Property and Work Effort Agreement for Vendor’s Employees, Contractors, Consultants, and Agents” (the “IPAWE Agreement”) which is attached hereto as Exhibit A. If [Vendor Abbreviation]’s personnel who will be rendering services under this SOW have already executed an agreement that, in the opinion of EOTSS’s counsel, provides legal protection to the Commonwealth equivalent to or stronger than that provided by the IPAWE Agreement, [Vendor Abbreviation] may substitute such agreement in place of the IPAWE Agreement for such personnel. [Vendor Abbreviation] shall return the signed copies of the IPAWE Agreement, or the EOTSS Project Manager’s pre-approved substitute agreement, to EOTSS’s Project Manager prior to the rendering of any services under this SOW.

10. MassGIS Web Mapping Services [Parties may delete this Section if not relevant for work efforts under this SOW]

MassGIS is the Commonwealth’s Office of Geographic and Environmental Information. Its legislative mandate includes coordinating GIS activities in the Commonwealth’s public agencies and distributing GIS data. MassGIS has also developed and is the host for the Commonwealth’s e-government geospatial web mapping initiative.

If [Vendor Abbreviation] will develop a capability for viewing maps and related information on an internet web site for EOTSS, and if that web site will display map information available through MassGIS web mapping services (e.g., parcels, orthophotos, streets, wetlands), then [Vendor Abbreviation] shall use MassGIS geospatial web mapping services. MassGIS may grant a waivers of this requirement if [Vendor Abbreviation] demonstrates to MassGIS’ satisfaction that using the MassGIS web mapping services for the proposed application is not reasonably practical due to one or more of the following concerns:

10.1 Performance of the application would be degraded due to using the MassGIS services;

10.2 The proposed application requires reliability that exceeds those that MassGIS can reasonably be expected to provide;

10.3 The security requirements of the application preclude using the MassGIS services;

10.4 Cost.

Waivers are not valid under this Agreement unless they are provided in writing by the Director or Assistant Director of MassGIS and the MassGIS Director or Assistant Director has indicated approval in writing.

11. ADDITIONAL TERMS

11.1 Code Review

All Deliverables that include software code or applications shall follow current industry design and best practices, including, but not limited to those published by The National Institute of Standards & Technology (NIST), the SANS (SysAdmin, Audit, Network, Security (SANS) Institute), and other recognized bodies.

[Vendor Abbreviation] shall cooperate with [Agency’s Abbreviation’s] code review of the relevant software or application Deliverables. Prior to implementation or acceptance of a Deliverable, [Vendor Abbreviation] shall subject Deliverables that include software code or script to independent application review by EOTSS or its delegated reviewer to validate that all applicable enterprise IT standards and security policies have been met, as well as other specifications as identified in this Agreement or the relevant Task Order. The review shall be performed by individuals other than [Vendor Abbreviation] or EOTSS’s staff who developed the Deliverables. For purposes of this requirement, "independent" may include other staff of the EOTSS provided no direct reporting relationships exist between the development and review organizations.

11.2 Warranty

Consistent with the RFR, [Vendor Abbreviation] represents and warrants to EOTSS that:

11.3 Title and Intellectual Property Rights

[These terms will apply if [Vendor Abbreviation] will be developing or modifying software or will be developing Deliverables that contain other intellectual property. They are subject to negotiation. However, the approval of the General Counsel for EOTSS is required for any changes to these terms.]

11.3.1 Definition of Property

The term Property as used herein includes the following forms of property: (1) confidential, proprietary, and trade secret information; (2) trademarks, trade names, discoveries, inventions processes, methods and improvements, whether or not patentable or subject to copyright protection and whether or not reduced to tangible form or reduced to practice; and (3) works of authorship, wherein such forms of property are required by [Vendor Abbreviation] to complete its work under the SOW and may consist of computer programs (in object and source code form), scripts, data, documentation, the audio, visual and audiovisual content related to layout and graphic presentation, text, photographs, video, pictures, animation, sound recordings, training materials, images, techniques, methods, algorithms, program images, text visible on the Internet, HTML code and images, illustrations, graphics, pages, storyboards, writings, drawings, sketches, models, samples, data, other technical or business information, reports, and other works of authorship fixed in any tangible medium.

11.3.2 Source of Property

[Vendor Abbreviation]’s work under this SOW may involve intellectual property derived from four different sources: (1) a third party such as …[this provision may not apply to all contracts, but it could apply if [Vendor Abbreviation] is using third party intellectual property to perform tasks or deliver Deliverables, e.g. configuring another entity’s COTS]; (2) that developed by [Vendor Abbreviation] for the open market (e.g. [Vendor Abbreviation]’s commercial off the shelf software); (3) that developed by [Vendor Abbreviation] for other individual clients, or for internal purposes prior to the Effective Date of this Statement of Work and not delivered to any other client of [Vendor Abbreviation]’s; and (4) developed by [Vendor Abbreviation] specifically for the purposes of fulfilling its obligations to EOTSS under the terms of this Agreement. Ownership of the first and second categories of intellectual property is addressed in separate agreements between EOTSS and the contractors and resellers of work product. This Section 11.3 of the Statement of Work addresses exclusively ownership rights in the third and fourth categories of intellectual property.

11.3.3 [Vendor Abbreviation] Property and License

[Vendor Abbreviation] will retain all right, title and interest in and to all Property developed by it, i) for clients other than the Commonwealth, and ii) for internal purposes and not yet delivered to any client, including all copyright, patent, trade secret, trademark and other intellectual property rights created by [Vendor Abbreviation] in connection with such work (hereinafter the "[Vendor Abbreviation] Property"). EOTSS acknowledges that its possession, installation or use of [Vendor Abbreviation] Property will not transfer to it any title to such property.

EOTSS acknowledges that [Vendor Abbreviation] Property contains or constitutes commercially valuable and proprietary trade secrets of [Vendor Abbreviation], the development of which involved the expenditure of substantial time and money and the use of skilled development experts. EOTSS acknowledges that [Vendor Abbreviation] Property is being disclosed to EOTSS to be used only as expressly permitted under the terms herein. EOTSS will take no affirmative steps to disclose such information to third parties, and, if required to do so under the Commonwealth’s Public Records Law, M.G.L. c. 66 § 10, or by legal process, will promptly notify [Vendor Abbreviation] of the imminent disclosure so that [Vendor Abbreviation] can take steps to defend itself against such disclosure.

Except as expressly authorized herein, EOTSS will not copy, modify, distribute or transfer by any means, display, sublicense, rent, reverse engineer, decompile or disassemble [Vendor Abbreviation] Property.

[Vendor Abbreviation] grants to EOTSS, a fully-paid, royalty-free, non-exclusive, non-transferable, worldwide, irrevocable, perpetual, assignable license to make, have made, use, reproduce, distribute, modify, publicly display, publicly perform, digitally perform, transmit, copy, sublicense to any EOTSS subcontractor for purposes of creating, implementing, maintaining or enhancing a Deliverable, and create derivative works based upon [Vendor Abbreviation] Property, in any media now known or hereafter known, to the extent the same are embodied in the Deliverables, or otherwise required to exploit the Deliverables. During the Term of this Agreement and immediately upon any expiration or termination thereof for any reason, [Vendor Abbreviation] will provide to EOTSS the most current copies of any [Vendor Abbreviation] Property to which EOTSS has rights pursuant to the foregoing, including any related documentation.

Notwithstanding anything contained herein to the contrary, and notwithstanding EOTSS’s use of [Vendor Abbreviation] Property under the license created herein, [Vendor Abbreviation] shall have all the rights and incidents of ownership with respect to [Vendor Abbreviation] Property, including the right to use such property for any purpose whatsoever and to grant licenses in the same to third parties. Vender shall not encumber or otherwise transfer any rights that would preclude a free and clear license grant to the Commonwealth.

11.3.4 Commonwealth Property

In conformance with the Commonwealth’s Standard Terms and Conditions, all Deliverables created under this Agreement whether made by [Vendor Abbreviation], subcontractor or both are the property of EOTSS, except for the [Vendor Abbreviation] Property embodied in the Deliverable. [Vendor Abbreviation] irrevocably and unconditionally sells, transfers and assigns to EOTSS or its designee(s), the entire right, title, and interest in and to all intellectual property rights that it may now or hereafter possess in said Deliverables, except for the [Vendor Abbreviation] Property embodied in the Deliverables, and all derivative works thereof. This sale, transfer and assignment shall be effective immediately upon creation of each Deliverable and shall include all copyright, patent, trade secret, trademark and other intellectual property rights created by [Vendor Abbreviation] or [Vendor Abbreviation]’s subcontractor in connection with such work (hereinafter the "Commonwealth Property").

All copyrightable material contained within a Deliverable and created under this Agreement are works made for hire. [Vendor Abbreviation] bears the burden to prove that a work within a Deliverable was not created under this Agreement. If work is determined to not be made for hire or that designation is not sufficient to secure rights, to the fullest extent allowable and for the full term of protection otherwise accorded to [Vendor Abbreviation] under such law, [Vendor Abbreviation] shall and hereby irrevocably does, assign and transfer to EOTSS free from all liens and other encumbrances or restrictions, all right, title and interest [Vendor Abbreviation] may have or come to have in and to such Deliverable. [Vendor Abbreviation] HEREBY WAIVES IN FAVOR OF EOTSS (AND SHALL CAUSE ITS PERSONNEL TO WAIVE IN FAVOR OF CLIENT IN WRITING SIGNED BY SUCH PERSONNEL) ANY AND ALL ARTIST’S OR MORAL RIGHTS (INCLUDING, WITHOUT LIMITATION, ALL RIGHTS OF INTEGRITY AND ATTRIBUTION) IT MAY HAVE PURSUANT TO ANY STATE OR FEDERAL LAWS OF THE UNITED STATES IN RESPECT TO ANY DELIVERABLE AND ALL SIMILAR RIGHTS UNDER THE LAWS OF ALL OTHER APPLICABLE JURISDICTIONS.

[Vendor Abbreviation] agrees to execute all documents and take all actions that may be reasonably requested by EOTSS to evidence the transfer of ownership of or license to intellectual property rights described in this Section 11, including providing any code used exclusively to develop such Deliverables for EOTSS and the documentation for such code. [Vendor Abbreviation] acknowledges that there are currently and that there may be future rights that the Commonwealth may otherwise become entitled to with respect to Commonwealth Property that does not yet exist, as well as new uses, media, means and forms of exploitation, current or future technology yet to be developed, and that [Vendor Abbreviation] specifically intends the foregoing ownership or rights by the Commonwealth to include all such now known or unknown uses, media and forms of exploitation.

The Commonwealth retains all right, title and interest in and to all derivative works of Commonwealth Property.

EOTSS hereby grants to [Vendor Abbreviation] a nonexclusive, revocable license to use, copy, modify and prepare derivative works of Commonwealth Property only during the Term and only for the purpose of performing services and developing Deliverables for the EOTSS under this Agreement.

With respect to web site development contracts,…