EXHIBIT_B_(Notable_Contract_Concepts).pdf

EXHIBIT B

NOTABLE CONTRACT CONCEPTS

Note: Depending upon the level of support to be provided by the Smithsonian to the Project, the

Smithsonian anticipates that, for tax compliance purposes, the parties may enter into two agreements related to the Project—an intellectual property license agreement and a services agreement. The language below expresses certain concepts to be included in a Project agreement(s) and not the actual contract language that would be incorporated in the agreement(s).

In addition, the Smithsonian Institution Security and Privacy Requirements and Cash Handling and Other

Financial Requirements are included below. The Smithsonian anticipates incorporating these clauses, which it considers material, in any agreement resulting from this RFP process.

The Smithsonian reserves the right to make changes to the language below, and to incorporate additional provisions as it deems necessary. Per the requirements of the RFP, companies are expected to indicate in their proposals any proposed clauses or language with which they take exception, or from which they propose to deviate.

1. APPROVALS. In addition to the approval requirements stated in the RFP, all Project materials bearing the Smithsonian names and trademarks, or utilizing Smithsonian Content, are subject to the advance written approval of the Smithsonian. This includes materials such advertising and promotional materials. The parties will agree upon a reasonable timetable for concept and design approvals.

2. AUDIOVISUAL RECORDINGS. Audiovisual recording and subsequent exhibition or distribution of such audiovisual recordings by any means in any medium, will be determined by the Smithsonian at its discretion.

3. NO AUTHORIZATION TO COMMIT. The company is not authorized or entitled to bind or commit the Smithsonian to any agreement or otherwise incur any obligations, debt, or commitments related to any AR/VR Offering without the express written approval of the Smithsonian. The company agrees to keep Smithsonian fully informed of all discussions and negotiations relating to each AR/VR Offering on an ongoing basis. The Smithsonian retains the right to cease the negotiation of a particular AR/VR Offering at any time. The company will not be entitled to any reliance costs in connection with the agreement(s) in the event the parties do not successfully negotiate an AR/VR Offering.

4. ACCESS. The Smithsonian's policy is to operate, to the fullest extent possible, in a manner consistent with the standards under the Americans with Disabilities Act and the Rehabilitation Act of

1973, as amended. The AR/VR(s) must be accessible to the public. Access shall not be denied to anyone on the basis of race, color, creed, national origin, physical or cognitive disability, sex, age, or any other basis prohibited by applicable law.

5. USE OF SMITHSONIAN NAMES. If at any time the continued development, exhibition, distribution or marketing of any AR/VR Offering developed pursuant to the Project will harm the reputation and integrity of the Smithsonian or the Smithsonian name, or is not in keeping with the dignity, history and traditions of the Smithsonian Institution, Smithsonian shall have the right to withdraw approvals previously given or terminate the agreement(s). The parties will negotiate a definition of

“harm” and “not in keeping,” to be included in the agreement(s). The company is not permitted to refer to the Smithsonian in its own advertising, marketing, promotion, publicity, or on any letterhead or website by any company.

6. COPYRIGHT. The Smithsonian reserves and retains all its right, title and interest in and to the

Smithsonian Content and, unless otherwise expressly agreed to by it in connection with the negotiation and execution of AR/VR Offering agreements contemplated by this RFP, all rights, including all intellectual property rights, in and to each AR/VR Offering. To the extent of its rights in and to Smithsonian Content selected for use in the Project, the Smithsonian will license such rights to the company, provided, however, that the Smithsonian makes no representations or warranties herein to the extent of its rights and licenses in and to any such Smithsonian Content. The company shall be responsible for securing and clearing any and all applicable rights the Smithsonian does not have, including rights in Smithsonian Content. The company will transfer and assign to the Smithsonian all right, title and interest, including copyright, in any and all material created by the company which is created for the purposes of the Project or which include the name(s) or logo(s) of the Smithsonian. The company also agrees to obtain prior written transfer and assignment of the above-described interests to the Smithsonian from any other person or entity that creates any material pursuant to the Project, such as a sub-contractor of the company.

7. INDEMNIFICATION. The company will indemnify, defend and hold the Smithsonian harmless for third party claims arising out of the subject matter of the agreement(s).

8. FEDERAL TORT CLAIMS ACT. The Smithsonian Institution is covered by the Federal Tort

Claims Act (28 U.S.C. §§ 1346(b) and 2671-80) which provides an exclusive remedy for claims against the United States (the Smithsonian) for damage to property, personal injury, or death caused by the negligent act or failure to act of a Smithsonian Institution employee in the course of his or her employment.

9. CONFIDENTIALITY. The Smithsonian Institution is a trust instrumentality of the United States and has adopted a written policy for responding to requests for Smithsonian Institution records, including paper documents, electronic data, email, contracts, and other information stored or maintained by the

Smithsonian, consistent with the principles of disclosure under the Freedom of Information Act, 5 United

States Code (U.S.C.), §552 and available at http://www.si.edu/About/FOIA.

10. APPLICABLE LAW. The agreement(s) will be construed in accordance with the applicable federal laws and laws of the District of Columbia, which shall also be the forum for any lawsuit under the agreement(s), regardless of its place of execution or performance.

11. COMPLIANCE. The company shall obtain at its own expense all necessary licenses and permits and shall comply with all applicable federal, state and local laws, codes, regulations, ordinances, and

Smithsonian directives required in connection with the operation and performance of the services described in the agreement(s). Failure to comply may result in the termination of the agreement(s) by

Smithsonian for default.

Smithsonian Institution Security and Privacy Requirements

1. Personally Identifiable Information (PII) refers to information about individuals, including information which can be used to distinguish or trace an individual's identity and any other information that is linked or linkable to an individual, such as medical, educational, financial or employment information. Work to be performed under this contract requires the handling of the following types of PII: [name, address, telephone number, and e-mail address]. Sensitive

Personally Identifiable Information (SPII) is defined as information, which if lost, compromised or disclosed without authorization, could result in substantial harm, embarrassment, inconvenience, or unfairness to an individual. Work to be performed under this contract requires http://www.si.edu/About/FOIA the handling of the following types of SPII: [name, address, email address, full date of birth, social security number, capacity rating, credit card number, etc.]. PII, SPII and other sensitive

Smithsonian data is collectively referred to herein as “Smithsonian Data.”

2. Safeguarding Smithsonian Data collected or possessed by Contractor in the course of this

Contract and preventing its disclosure are essential. The physical and logical design of

Contractor’s information technology network, procurement of the network elements and the ongoing configuration and maintenance of the network shall be the responsibility of Contractor.

The security of the network is of paramount importance and should prevent unauthorized access, loss, or modification of Smithsonian Data.

a. Contractor shall use its own merchant account at its credit card processing bank.

b. Contractor acknowledges that it is responsible for the security of the card holder data that it processes in the course of this Agreement. Contractor shall meet the most stringent

Payment Card Industry (“PCI”) Data Security Standards applicable to a merchant or service provider of its size. Upon request, Contractor will provide Smithsonian with updated certificates of compliance. Contractor will inform Smithsonian within 24 hours of any changes to its PCI compliance status.

3. Privacy Impact Assessments (PIAs) will be completed for the work product produced hereunder to the extent that it collects, maintains, or disseminates PII or SPII in electronic form from or about members of the public. The privacy notice in the final product shall include a link to the

Smithsonian’s current PIAs.

4. Contractor shall limit access to Smithsonian Data to those employees and subcontractors who require the information in order to perform their official duties under this Contract. Contractor, Contractor employees, and subcontractors must physically secure Smithsonian Data when not in use and/or under the control of an authorized individual, and when in transit to prevent unauthorized access or loss. When Smithsonian Data is no longer needed or required to be retained under applicable Smithsonian records retention policies, it must be destroyed through means that will make the Smithsonian Data irretrievable.

5. Contractor shall use Smithsonian Data obtained hereunder solely for purposes of this Contract, and shall not collect or use such information for any other purpose without the prior written approval of the Smithsonian Contracting Officer. At expiration or termination of this Contract, the contractor shall turn over all Smithsonian Data obtained under the contract that is in its possession to the Smithsonian as provided in the termination provisions set forth herein.

6. Security Standards. In performing its duties related to management, operation, and/or access of systems containing Smithsonian Data under this Contract, the Contractor, its employees and subcontractors shall comply with applicable security requirements set forth herein as well as those set forth in the Smithsonian OCIO IT Security Standards (to be provided by the

Smithsonian Contracting Officer upon request).

a. If the work product collects PII or SPII, the communication must be encrypted using secure socket layer (SSL) 3.0 or transport layer security (TLS) 1.0 or higher. Contractor is responsible for the costs and implementation of authentication technology, including security certificates for the work product.

b. To the extent required to carry out a program of inspection to safeguard against threats and hazards to the security, integrity, and confidentiality of Smithsonian Data, Contractor shall afford Smithsonian access to Contractor’s facilities, installations, technical capabilities, operations, documentation, records, and databases, and shall otherwise cooperate with the

Smithsonian in assuring compliance with such requirements. Smithsonian access shall include independent validation testing of controls, system penetration testing by the Smithsonian, data reviews, and access by Smithsonian Inspectors General for its reviews.

c. Use of Contractor laptops or other media storage devices to process or store Smithsonian

Data is prohibited under this Contract unless and until the Contractor provides, and the

Contracting Officer approves, written certification by the Contractor that the following requirements have been met:

(i.) Laptops employ encryption using standards to be provided by Smithsonian OCIO.

(ii.) The Contractor has developed and implemented a process to ensure that security and other applications software are kept current.

(iii.) Mobile computing devices utilize anti-viral software and a host-based firewall mechanism.

(iv.) When no longer needed, all removable media and laptop hard drives shall be processed

(i.e., sanitized, degaussed, or destroyed) in accordance with Smithsonian security requirements.

(v.) The Contractor shall maintain an accurate inventory of devices used in the performance of this Contract.

(vi.) Contractor shall immediately report to Smithsonian any incident or suspected incident that results in unauthorized access, loss or modification of Smithsonian Data collected or stored in the course of this Contract or denial of service affecting the availability of such data.

(vii.) If new or unanticipated threats or hazards are discovered by either Smithsonian or

Contractor, or if existing safeguards have ceased to function, the discoverer shall immediately bring the situation to the attention of the other party.

7. Breach Notification. “Breach” as used herein shall mean the loss of control, compromise, unauthorized disclosure, unauthorized acquisition, unauthorized access, or any similar situation where persons other than authorized users, and for other than authorized purpose, have access or potential access to Smithsonian Data, in usable form whether physical or electronic. In the event of any actual or suspected breach of Smithsonian Data (i.e., loss of control, compromise, unauthorized disclosure, access for an unauthorized purpose, or other unauthorized access, whether physical or electronic), Contractor shall immediately, and in no event later than one (1) hour of discovery, report the breach to the individuals identified below. The Contractor is responsible for positively verifying that notification is received and acknowledged by at least one of the following parties:

Contracting Official’s Representative named in the Agreement

Smithsonian Privacy Officer, Danée Gaines Adams

Phone (202) 633-5324

GainesAdamsD@si.edu mailto:GainesAdamsD@si.edu

a. Contractor hereby represents and warrants that it has in place procedures and the capability to promptly notify any individual whose PII or SPII was, or is reasonably believed to have been, breached, as the Smithsonian deems appropriate. The method and content of any notification by

Contractor shall be coordinated with, and subject to the prior approval of the Smithsonian Privacy

Council, based upon a risk-based analysis conducted by the Smithsonian in accordance with

Smithsonian Directive 118, Privacy Breach Notification Policy. Contractor shall not proceed unless the Smithsonian has determined that such notification is appropriate.

b. Subject to the Smithsonian’s analysis of the breach and the terms of its instructions to the

Contractor regarding any resulting breach notification, a method of notification may include letters to affected individuals sent by first class mail, electronic means, or general public notice, as approved by the Smithsonian. At minimum, a notification shall include: (1) a brief description of how the breach occurred; (2) a description of the types of personal information involved in the breach; (3) a statement as to whether the information was encrypted or protected by other means; (4) steps an individual may take to protect themselves; (5) what the agency is doing, if anything, to investigate the breach, to mitigate losses, and to protect against any further breaches; and (6) point of contact information identifying who affected individuals may contact for further information.

c. In the event of a breach, the Contractor may be held liable in whole or in part for such breach, to the extent that the Contractor, by virtue of its own acts or omissions, or those of its agents, bears responsibility for the breach, as determined by the Smithsonian. Such acts or omissions include, but are not limited to: failure to comply with applicable privacy or security requirements; failure to take other reasonable and appropriate precautions to prevent such a breach; or failure to report a breach immediately, such that the delay results in a harm that could have been avoided or mitigated had the breach been reported immediately. Remedies may include, but shall not be limited to: costs of forensic analysis or other investigation; breach notification to affected individuals or entities; credit monitoring services for such individuals or entities; training; or other costs associated with mitigating or remedying the breach, or preventing further breaches. Such costs may be withheld from payments otherwise due to the Contractor under this Contract.

8. Pass Through of Clauses to Subcontractors. The Contractor shall incorporate the substance of this clause, its terms and requirements, in all subcontracts under this Contract, and to require written subcontractor acknowledgement of same. Violation by a subcontractor of any provision set forth in this clause will be attributed to the Contractor.

9. Web Tracking/Geolocation Technologies. The work product may make use of persistent web tracking or geolocation technologies, including, but not limited to, cookies, web bugs, and web beacons only if visitors are provided a prior opportunity to accept or decline such technology

(”opt-in”) without denying them access to content if they decline.

10. Handling Smithsonian Data Upon Termination. Upon termination or earlier expiration of the

Term, Contractor will provide the Smithsonian with all Smithsonian Data and content provided hereunder within thirty (30) calendar days. All such Smithsonian Data will be provided in a commonly used file or database format as the Smithsonian deems appropriate. Contractor shall delete from its files and remove from its information technology assets all Smithsonian Data, including without limitation all data obtained in Contractor’s performance hereunder.

Certification of data removal will be performed by Contractor and written notification confirming certification will be delivered to the Smithsonian Contracting Officer within fifteen (15) calendar days of termination/expiration of this Contract. Furthermore, Contractor shall cease any use of the Smithsonian Names and shall not exploit in any manner its association with Smithsonian, unless the parties otherwise agree in the writing at the time of termination.

11. Data Transfer. Contractor may not transfer any personally identifiable information in the event of a Contractor merger, acquisition, or other transaction, including sale in bankruptcy, without the written approval of the Smithsonian Contracting Officer. If the Smithsonian does not approve of the transfer, Contractor shall provide the Smithsonian with all Smithsonian Data and ensure removal of Smithsonian Data as described in Section 10 above.

Cash Handling and Other Financial Requirements

1. Collection of Revenues. Contractor shall be responsible for the collection, handling, security, and risk of loss of all funds collected by Contractor for sales. Contractor will utilize a stand-alone Point of

Sale system (POS) to collect all sales, generate sales receipts and invoices, and to accurately record gross receipts. All cash will be collected by and deposited by Contractor on a daily basis using a cash transfer service. Contractor will also receive and deposit to its own account all credit card sales receipts.

2. Cash Management System and Equipment. Contractor shall provide, at Contractor’s own expense, a reliable, accurate and secure cash management system that complies with best industry practices and Smithsonian requirements as indicated by the Contracting Official’s Representative (“COR”).

Contractor shall provide all needed maintenance, inspection, and repair services to maintain the equipment in fully operational and first class condition. This includes, but is not limited to, preventative maintenance, and any and all needed repairs or replacement in the event of breakdown, design error or failure, malfunction, or other interruption in the functionality or operability of the equipment. Contractor shall maintain complete records of periodic maintenance performed on any such equipment. Said records shall be made available to the Smithsonian upon request.

3. Periodic Performance Reviews. The parties will establish a regular meeting schedule to assess performance, to include the following: (i) monthly meeting/conference call including review of monthly numbers in detail and review of revenue targets; (ii) quarterly business review meeting to include seasonal planning, pricing review, and other pertinent details; and (iii) yearly planning meeting (which will be one of the quarterly meetings), to include a thorough review of the business by department.

4. Payments, Financial Statements and Reports

A. Daily/Weekly Statements. On a weekly basis consisting of Sunday through and including the following Saturday contractor will submit statistical reporting to the SE representative detailing gross sales for each business by location. Reporting will be due by the close of business on Sunday for the preceding Sunday through Saturday. Reporting format and delivery method will be mutually agreed upon by Contractor and SE.

B. Monthly Statements. Monthly accounting period reporting shall follow the Smithsonian’s fiscal calendar. Fiscal year shall refer to the accounting period of twelve months, on the Sunday falling between September 26 and October 2 and ending on the Saturday falling between

September 25 and October 1 of the following calendar year. The Smithsonian follows a “4-4-5” accounting period in which each quarter of the Fiscal Year is divided into three monthly periods as follows: four weeks in the first “month” of the quarter; four weeks in the second “month” of the quarter; and five weeks in the third “month” of the quarter (except for the last fiscal month, which always runs to the end of the fiscal year, regardless of the number of weeks). Within #

(XX) days after the end of each fiscal month, Contractor shall submit to the Smithsonian a complete and accurate statement for the month and listing by each business location:

i. List any specific reporting KPIs applicable to vendor

ii. Any promotional items

iii. Calculation of commission/royalty fees due, for each item listed above.

C. Within # (XX) days after the end of each fiscal month, Contractor shall make payment to

SE by one of the following methods:

If via Electronic Funds Transfer, wire payments directly to

[INSERT]

If via bank check, make check payable to the order of, and send to:

Statements shall be mailed separately to SE’s Accounting Department, at the following address:

Smithsonian Enterprises

Accounting Department

200 Fairbrook Drive, Suite 204

Herndon, VA 20170

With copy to:

D. Annual Statements. Within sixty (60) days of the end of each [Contract Year], Contractor shall furnish to the COR a complete and accurate statement, certified by an officer of

Contractor, showing in all reasonable detail the amount of Gross Sales for the previous

[Contract Year], and shall certify that the amount of Gross Sales, and payments to

Smithsonian and all statements were prepared in accordance with GAAP (the “Annual

Statement”). The form of the annual statement shall be as mutually agreed by the parties and shall include, at a minimum, sales reported to Smithsonian by month, audited certified sales, variance (if any, with detailed explanation), amount due to Smithsonian, amount paid to

Smithsonian, and balance due.

E. Receipt or acceptance by Smithsonian of any of the statements or reports furnished pursuant to this Agreement, or of any sums paid herein, shall not preclude Smithsonian from questioning the correctness thereof at any time, and in the event that any inconsistencies or mistakes are discovered in such statements, reports, or payments, they shall be rectified within five (5) business days and the appropriate corrections or payments made.

5. Books and Records

A. In all its accounting practices related to this Agreement, Contractor will follow high professional standards of accounting consistent with standards used for services of a similar scope, nature and complexity. Contractor shall manage the Project in such a manner as to assure the accurate accounting and control of, and security for, all funds received. Contractor shall implement and maintain financial controls acceptable to the Smithsonian for all cash and charge handling and procedures to assure a complete audit trail from the moment money is collected by Contractor until each payment is sent to Smithsonian. Contractor shall make its cash handling procedures available to Smithsonian upon request.

B. Contractor shall maintain complete and accurate financial records in accordance with

Generally Accepted Accounting Principles (“GAAP”) for all transactions related to this

Agreement, for a minimum period of five (5) years beyond the expiration or earlier termination of this Agreement. These items shall be properly stored and shall not be destroyed or discarded during the five-year timeframe. The records to be kept by Contractor shall include, without limitation, true copies of all state and local sales and use tax returns and reports, records of inventories and receipts of merchandise, records of bank deposits of the entire receipts from transactions related to this Agreement, daily receipts from all sales

(including those from internet, mail or telephone orders, as applicable), and other pertinent original sales records and records of any other transactions conducted by or on behalf of

Contractor related to this Agreement. Contractor must be able to track transactions by individual cashier. Pertinent original sales records shall include, without limitation, a point of sale system of record-keeping and such other reasonable documentation which would normally be examined by an independent accountant pursuant to GAAP in performing an audit of Contractor’s sales sufficient to provide determination and verification of Gross Sales receipts and the exclusions and deductions therefrom. In addition, Contractor must provide an electronic cash control system which will provide all significant point-of-sale information which must include at a minimum the following: (1) sales by category; (2) sales transactions by time of day, day of week, etc.; (3) average sales transaction; and (4) any other information the Smithsonian deems reasonably necessary to provide the Smithsonian with a comprehensive analysis of Contractor’s operation. The electronic cash control system must ensure tight cash control and have complete audit capability and at a minimum include: (1) record transactions by sequential control number which can be printed on the audit tape(s);

(2) be capable of printing transactions on tape or receipt for the customer showing the time of day and day, month, and year; (3) print out customer receipt showing the amount of the transaction, the amount of cash or check tendered by the customer and the amount of cash returned to the customer; (4) the point-of-sale device shall have provision for non-resettable totals; access for resetting the control totals shall be reserved solely to the point-of-sale device supplier, and (5) Contractor shall be required to use only point-of-sale devices or cash registers that are approved by , and recorded with, the Smithsonian as an active, usable point-of-sale and/or cash control device.

C. In addition to any other rights of inspection specified in this Agreement, Smithsonian shall have the right during normal business hours and upon reasonable notice to inspect, audit, make extracts from, and copy, any or all of Contractor’s financial and business records

(which shall be easily accessible) related to performance of this Agreement. To facilitate such inspection, audit, copy or extract, Contractor shall make available to the Smithsonian’s auditor on advance notice and during regular business hours, all original records, information and data as reasonably required by the auditor. Such right shall exist during the term of this

Agreement and for a period of five (5) years beyond expiration or termination of this

Agreement. Such audit shall be at the expense of Smithsonian unless the audit uncovers a discrepancy of five percent (5%) or more and not less than one thousand dollars ($1,000) as between amounts actually remitted to the Smithsonian and amounts actually due to the

Smithsonian, in which event the cost of the audit shall be borne by Contractor. The

Contractor shall pay any underpayment found during the audit to Smithsonian. Smithsonian will reimburse the Contractor for any overpayments found during the audit. If, upon examination or audit, the Smithsonian determines that sufficient documentation is not maintained, retained, recorded or available to verify Contractor’s actual Gross Sales, Contractor shall pay for the cost of such audit and, in addition, should Smithsonian deem it necessary, Contractor shall reconstruct, at its sole cost and expense, all records for the determination of Gross Sales for any period being audited.

D. In addition to any records, reports and statements specifically provided for in this Agreement, Smithsonian may require reasonable additional or modified records, reports and statements, in connection with the performance of this Agreement, and Contractor shall prepare, maintain and provide such records, reports, and statements as mutually agreed upon.

6. Security. This clause applies to Contractor’s employees, contractors, and/or subcontractors who provide services to the Smithsonian pursuant to this Agreement (herein such individuals are collectively referred to as “Contractor personnel”). All Contractor personnel are subject to

Smithsonian security directives in effect during the Term of this Agreement.

A. Contractor shall coordinate with the COR, who will provide information on Smithsonian procedures for obtaining identification badges and relevant forms. Contractor personnel must receive an appropriate background investigation and Smithsonian credential and undergo security awareness training if their association with Smithsonian is greater than thirty (30) days and they require unsupervised access to staff-only areas of Smithsonian-controlled facilities and leased spaces (this includes access to public spaces during non-business hours).

i. The COR will furnish the Contractor with OF-306 (Declaration for Federal Employment) to be completed by each person and returned by the Contractor to the COR within 10 working days from receipt of the forms.

ii. Upon notification from the COR, the Contractor shall send each person to the SI

Personnel Security Office for fingerprinting. For contract employees outside the fingerprint locations in Washington DC, New York City, Virginia and Maryland, FD-258

Fingerprint Cards will be provided by the COR to the Contractor. If necessary, these shall be submitted by the Contractor with the OF-306.

iii. Based on the information furnished, the Smithsonian will conduct a background investigation referred to as a Special Agreement Check (“SAC”). The SAC includes but is not limited to Security Agency Checks (record of previous suitability determinations), FBI National Criminal History Check, and Law Enforcement Checks.

iv. Smithsonian will review the investigation and determine if the Contractor provided his or her true identity or is otherwise not suitable for a Smithsonian credential. The

Smithsonian shall provide the Contractor with reasonable notice of the determination including the reason(s) the individual has been determined to not have provided his or her true identity or is otherwise unsuitable. The notice shall state the specific reasons for the determination, and that the Contractor has the right to answer the notice in writing. The

Contractor may respond to the determination in writing and furnish documentation that addresses the validity, truthfulness, and/or completeness of the specific reasons for the determination in support of the response. After consideration of the determination and any documentation submitted by the Contractor for reconsideration of the initial determination, the OPS Director or his/her designee will issue a written decision, which informs the Contractor of the determination. The reconsideration decision will be final.

B. Contractor will participate in such background investigations by fully cooperating with

Smithsonian personnel, including but not limited to informing applicants of the requirement of obtaining a background check and soliciting all information from such applicants as

Smithsonian may reasonably request.

C. Contractor personnel whose association with the Smithsonian is less than thirty (30) days shall not receive a background investigation/credential and will require an escort by credentialed personnel when in staff-only areas of Smithsonian facilities. Contractor is responsible for implementation of a formal process to conduct background investigations for such Contractor personnel, such as those working at off-site inventory centers with non-routine access to Smithsonian premises.

D. Upon completion of a successful background investigation the Contractor personnel will be issued a Smithsonian identification credential that shall be worn at all times while on duty or within staff-only areas of Smithsonian facilities. Smithsonian reserves the right to determine whether and to whom it shall issue building access and identification credentials and the degree of access afforded by such credentials. Smithsonian identification credentials may be withdrawn at any time and for any reason. Each identification credential will expire annually and must be renewed, if necessary, prior to its stated expiration date. It is the Contractor’s responsibility to initiate the renewal process. The Contractor is not required to submit another set of background investigation forms for Contractor personnel who were already cleared through the process described herein.

E. Upon expiration of this Agreement, or removal or termination of Contractor personnel, Contractor shall return all issued Smithsonian identification credentials. No Contractor personnel shall enter into non-public areas of any Smithsonian building or facility (or public spaces during non-business hours) without proper identification credentials. Contractor shall inform Smithsonian of any terminated personnel within one business day of such termination and will forward any Smithsonian ID cards, which it collects, to the COR within one business day of the termination of that personnel.

7. Termination.

A. Termination for Convenience. If at any time Smithsonian deems that it would be in its best interest not to continue operations pursuant to this Agreement, Smithsonian may terminate this Agreement for convenience upon at least [insert time period]’ advance written notice.

B. Termination for Cause. This Agreement may be terminated upon breach of any material term of the Agreement, provided that the party claiming a breach has provided written notice to the other party and offered such party thirty (30) days, from the date notice is given, in which to cure such breach. If the breach is not cured, the Agreement shall terminate effective the thirty-first (31st) day following the date of notice.

8. Inspection. Smithsonian shall have the right to conduct inspections and tests as desired, and

Contractor shall permit and cooperate with the Smithsonian COR and his/her designee(s) to observe, enter and inspect the AR/VRs at any time and for any purpose the Smithsonian’s authorized representatives deem reasonable for the administration of this Agreement or for the administration of the Smithsonian, including but not limited to security, fire, safety and electrical code compliance. This right may be exercised by Smithsonian without notice to Contractor, and includes but is not limited to (i) the right for

Smithsonian to require installation, at Contractor’s cost, of Smithsonian-provided video cameras in the

AR/VR premises; and (ii) the right to observe, in real time, Contractor’s cash management, accounting and video feed systems. The Smithsonian will use reasonable efforts to conduct its inspections and tests in a manner that will not unduly disrupt or delay operations. If the conditions of the AR/VR do not meet appropriate standards, the Smithsonian may direct Contractor to take necessary action which may include closing the AR/VR and Contractor agrees to abide by all such directions.

9. Insurance.

A. Throughout the Term of the Agreement, Contractor shall provide and maintain at its own expense the insurance policies described in this Section covering all its activities under this

Agreement. All insurance required hereunder shall be written on an occurrence basis.

Contractor may use a combination of policies to achieve the minimum limits and required scope specified. Umbrella or excess policy limits may be accepted to meet the required limits and the required scope of insurance. Policies shall be maintained with an insurer of recognized responsibility, licensed to do business in the states where work is performed

(including the District of Columbia) and with a A.M. Best rating of A minimum (-)8 or higher. The insurance requirements provided herein are minimum insurance requirements and shall not be considered indicative of the ultimate amounts and types of insurance needed by

Contractor. Contractor agrees and acknowledges that Smithsonian assumes no responsibility whatsoever for the acts, errors and/or omissions of Contractor.

B. Workers’ Compensation. Contractor shall maintain Workers’ Compensation coverage that meets or is greater than the statutory limits as required by the laws of the states (including the

District of Columbia) in which the work is performed.

C. Commercial General Liability - Minimum Policy Limit: $1,000,000 Per Occurrence;

$5,000,000 in the aggregate. Contractor shall maintain Commercial General Liability coverage as broad as the standard (ISO Form) including coverage for (a) bodily injury;

property damage; products liability; blanket contractual liability; and completed operations coverage and (b) advertising injury and personal injury pertaining to all activities performed by Contractor under this Agreement. Policies evidencing the Commercial General Liability coverage shall include the Smithsonian Institution as Additional Insured by specific broad form endorsement, and shall include or provide for insurance coverage for liability assumed under this Agreement.

D. Auto Liability. If Contractor owns auto(s) and the operation of its business involves such auto(s), then Contractor shall maintain Business Auto Liability in the minimum amount of

$1,000,000 per occurrence.

E. Criminal Liability Insurance. Contractor shall maintain a Criminal Liability insurance policy in the amount of $2,000,000. Contractor shall name the Smithsonian Institution as Additional

Insured on the Criminal Liability Policy for liability arising out of Contractor’s activities pertaining to this Agreement.

F. Property Damage and Business Interruption Insurance. Property insurance in the amount of $

[TBD] to cover damage to event premises and all stock, furniture, fixtures and equipment.

This policy shall list the Smithsonian Institution as loss payee. Business interruption coverage shall provide protection for loss of income in case of closure.

G. Insurance for Subcontractors. Should Contractor use subcontractors in the provision of any services under this Agreement, Contractor will ensure that all subcontractors are adequately insured as required above for their activities pertaining to this Agreement. Contractor will be responsible for determining per occurrence limits and other necessary coverages, depending on the scope of their activity and to cover the liabilities or loss they may cause.

H. Certificates of Insurance. As evidence that Contractor has the required coverage, certificates of insurance or true copies of the policies evidencing the required coverage and Additional

Insured requirements shall be presented to the COR immediately upon execution of this

Agreement. Before the expiration or cancellation of any insurance policy required hereunder, Contractor shall provide certificates of insurance evidencing renewal or replacement coverage sufficient to satisfy Contractor’s obligations under this Section.

I. Obligation to Maintain Coverage. The insurance provisions of this Agreement are of the essence. Failure to maintain such insurance coverage shall constitute a material breach of this

Agreement and shall give the Smithsonian the right to terminate this Agreement. Contractor expressly agrees that should Smithsonian exercise this right, Smithsonian shall not be held responsible for, and Contractor shall have no claim or cause of action against the Smithsonian for, any incidental, consequential, or other resulting damages (physical or monetary) caused directly or indirectly by such termination.

10. Bankruptcy. In the event Contractor enters into proceedings relating to bankruptcy, whether voluntary or involuntary, Contractor will notify Smithsonian in writing, pursuant to the terms of Section

__ of this Agreement (“Notices”), of the bankruptcy. This notice will include the date on which the bankruptcy petition was filed, the name and location of the court in which the petition was filed, and the

Smithsonian Contract Number as it appears on the first page of this Agreement, and must be received by the Smithsonian within five (5) days of the initiation of the proceedings. In the event that Contractor is adjudicated a bankrupt or becomes a debtor under Title 11 of the U.S. Code, the parties agree that

Smithsonian will suffer irreparable harm unless Contractor immediately elects either to assume or reject this Agreement. Therefore, Contractor shall use its best efforts to move the court within fifteen (15) days of filing its petition for bankruptcy to permit Contractor either to assume or reject this Agreement, to request of the court a hearing on the matter on an emergency basis, and to schedule such hearing within no more than twenty-one (21) days from the date of Contractor’s request.

11. Assignment. This Agreement and all rights and obligations herein stated are personal between

Contractor and Smithsonian and may not be assigned or amended without the prior written consent of both parties.

12. Required Disclosure. The Contractor shall timely disclose, in writing, to the Smithsonian’s

Office of the Inspector General (OIG), with a copy to the Contracting Officer, whenever, in connection with the execution, performance, or closeout of this Agreement or any subcontract hereunder, the

Contractor has credible evidence that a principal, employee, agent, or subcontractor of the Contractor has committed (i) A violation of federal criminal law involving fraud, conflict of interest, bribery, or gratuity violations found in Title 18 of the United States Code; or (ii) a violation of the civil False Claims Act (31

U.S.C. 3729-3733).

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