WDFW ELS RFP No. 24-00006 - Sample Contract.pdf.crdownload

WDFW CONTRACT NUMBER 24-00006

between the

WASHINGTON DEPARTMENT OF FISH AND WILDLIFE

and

Effective Date: XX/XX/XXXX

*****************SAMPLE CONTRACT ONLY*****************

Agreement Number 24-00006

Table of Contents

CONTRACT

Parties

Recitals

1. Definition of Terms

CONTRACT TERM

2. Term

3. Survivorship

COMPENSATION, INVOICE, AND PAYMENT

4. Compensation

5. Advanced Payment Prohibited

6. Taxes

7. Overpayment to Contractor

8. System Documentation

CONTRACTOR’S RESPONSIBILITIES

9. Performance

10. Commencement of Work

11. Additional Development Hours

12. Ownership

13. Site Security

14. Protection of WDFW’s Confidential Information

15. Data Security

16. Warranties

17. Reporting and Status

CONTRACT ADMINISTRATION

18. Legal Notices

19. WDFW Contract Administration

20. Contractor Contract Administration

21. Section Headings, Incorporated Documents, and Order of Precedence

22. Entire Agreement

23. Authority for Modifications and Amendments

24. Independent Status of Contractor

25. Governing Law

26. Subcontractors

27. Assignment

28. Publicity

29. Review of Contractor’s Records

30. Right of Inspection

GENERAL PROVISIONS

31. Patent and Copyright Indemnification

32. Save Harmless

33. Insurance

34. Industrial Insurance Coverage

35. Licensing Standards

36. OSHA/WISHA

37. UCC Applicability

38. Anti-Trust Violations

39. Compliance with Civil Rights Laws

40. Severability

41. Waiver

42. Contractor’s Proprietary Information

DISPUTES AND REMEDIES

43. Disputes

44. Attorney Fees and Costs

45. Non-Exclusive Remedies

46. Liquidated Damages

47. Failure to Perform

48. Limitation of Liability

CONTRACT TERMINATION

49. Transition Support

CONTRACT EXECUTION

50. Authority to Bind

51. Counterparts

52. Performance [If required upon acceptance of proposal, otherwise to be deleted]

53. Additional Terms

SCHEDULE A

SCHEDULE B

SCHEDULE C

CONTRACT

Parties

This Contract (hereinafter referred to as “Contract”) is entered into by and between the State of Washington, acting by and through the Washington Department of Fish and Wildlife, an agency of Washington State government (hereinafter referred to as “WDFW” or “State”) located at PO Box 42600, Olympia, Washington 98504-2600; and ___________________________ , a corporation licensed under Federal Identification Number (“FEIN”) _______________to conduct business in the State of Washington (hereinafter referred to as “Contractor”), located at_____________________, for the purpose of developing, replacing, and the ongoing operation of the Washington Interactive License Database (“WILD”) System and associated services that support Washington State’s sale of six million license items for hunting, fishing, and other recreational activities.

Recitals

The state of Washington, acting by and through WDFW, issued a Request for Proposals (“RFP”) dated December 2, 2024 (Exhibit 1) for the purpose of purchasing an electronic licensing system to facilitate the sale of recreational hunting and fishing licenses in accordance with its authority under RCW 39.26.

Contractor submitted a timely Response to WDFW’s RFP (Exhibit 2).

WDFW evaluated all properly submitted Responses to the above-referenced RFP and has identified Contractor as the apparently successful Contractor.

WDFW has determined that entering into a Contract with Contractor will meet WDFW’s needs and will be in WDFW’s best interest.

NOW, THEREFORE, WDFW awards to Contractor this Contract which shall govern Contractor’s furnishing to WDFW the Services as set forth in Schedule A (Sample System Implementation Statement of Work) and Schedule B (Budget), and in accordance with the terms and conditions of this Contract. This Contract is not for personal use.

IN CONSIDERATION of the mutual promises as hereinafter set forth, the parties agree as follows:

1. Definition of Terms

Definitions as used through this Contract shall have the meanings set forth below:

Acceptance: A written notice from WDFW to Contractor that Software has passed its Acceptance Testing.

Acceptance Date: The date upon which WDFW accepts the Software as provided in the section titled “Performance.”

Acceptance Testing: Also referred to as user acceptance testing (UAT), this refers to the process undertaken by WDFW to ensure the Software meets all specified requirements. It is the final step before the Software goes live in the production environment. The standards to be met by the Software prior to Acceptance by WDFW are set forth in the section titled “Performance.”

ACH: Automated Clearing House – an electronic network used for processing large volumes of credit and debit transactions between participating financial institutions. ACH facilitates various types of payments, such as direct deposits, payroll, bill payments, and tax refunds. It is managed by the National Automated Clearinghouse Association (Nacha) and is widely used for domestic low-value transactions.

Base Price/State Fee: The sum of prices listed in State Law for the license item. This does not include Transaction Fees or Dealer Fees.

Business/Working Days and Hours: Monday through Friday, 8:00 a.m. to 5:00 p.m., Pacific Time, except for holidays observed by the State of Washington.

Component: Any Software and Equipment provided by and/or integrated by Contractor to accomplish the operations and/or maintenance of the Washington Interactive License Database (WILD) System.

Component Service Failure: The malfunction of Software or Equipment component, excluding external factors, which prevents the accomplishment of the Component’s intended function(s).

Confidential Information: Information that may be exempt from disclosure to the public or other unauthorized persons under either RCW 42.56, or other state or federal statutes. Confidential information may include, but is not limited to names, addresses, Social Security numbers, email addresses, telephone numbers, financial profiles, credit card information, driver’s license numbers, medical data, law enforcement records, agency source code or object code, or agency security data.

Contract: This document, all schedules, exhibits, and amendments hereto.

Contractor: ___________, its employees, and agents. Contractor also includes any firm, provider, organization, individual, or other entity performing Services under this Contract. It shall include any Subcontractor retained by Contractor as permitted under the terms of this Contract.

Contractor Account Manager: A representative of Contractor assigned as the primary contact person with whom the WDFW Contract Administrator shall work for the duration of this Contract, unless replaced by another representative with notice to WDFW.

Critical Path: The sequence of project tasks that determines the minimum project duration. These tasks have no flexibility in their timing as any delay in these tasks will result in a delay of the entire project.

Customer: The individual buying a license or associated license product from the System.

Day(s)/Calendar Day(s): All days on the calendar, Monday through Sunday, including weekends and holidays.

Dealer: Individual or company that is authorized by WDFW to sell hunting and fishing licenses on its behalf for a nominal fee typically ranging between $0.50 and $2.00 per item.

Dealer Fee: A predetermined dollar amount which is collected and retained by the Dealer as compensation for services rendered in the delivery of services relative to license issuance. The System must be able to calculate the Dealer Fee. These fees are not collected through the ACH process and currently range in value from fifty cents ($0.50) to two dollars ($2.00), however they are subject to change as governed by statute.

Defect/Bug/Issue: An error, flaw, or failure in the System that causes it to produce an unexpected result or behave in unintended ways, as defined by the business rules or requirement document.

Blocker Defect: A defect that has critically compromised the production environment or is rendering the sale of any product inoperable. This means one or more sales channels are unable to successfully process sales, or a subset of users is unable to purchase a product or complete a process.

Critical Defect: A defect that prevents a function of the System from being used and has no acceptable workaround. Despite this, all products remain sellable, and all sales channels can successfully process sales.

High Defect: A defect that prevents a function or process of the production System from being used, but a workaround is possible and/or available.

Medium Defect: An issue or defect that makes a function or process of the production System difficult to use, but no workaround is needed or required.

Low Defect: An issue or defect that does not affect the actual function or process of the production System, but the behavior is not natural or expected.

Deliverable: A tangible or intangible output produced as part of the project. It can be a product, service, report, document, or any other result that must be completed and delivered by a specified deadline to fulfill project requirements.

Deployment Date: The date by which the final deliverables outlined in all Statements of Work shall be in place and accepted by WDFW.

Development Hours: A predetermined number of development hours included in the base price as a Contractor provided service for continual System improvement, new features, and System functionality.

Exhibit A: The RFP.

Exhibit B: Contractor’s Response to the RFP.

Execution Date: The date of the last signature of a party to this Contract.

FEIN: Contractor’s Federal Employer Identification Number.

In Writing: Physical or electronic mail.

Initial Deployment: The first production deployment of the System outlined in the Statement of Work on or before June 9, 2026.

Milestone: A significant point or event in a project timeline that marks the completion of a major phase or goal. It serves as a checkpoint to assess progress and ensure the project is on track.

Notice: All written correspondence to include electronic mail messages between Contractor and WDFW personnel relevant to the Contract. All such messages shall include the WDFW Contract number in the body or title of the message. An electronic mail message shall comprise sufficient notice when the sender’s audience includes two or more Contractor personnel (including author) and two or more WDFW contract authorized personnel (including author) as listed in the “Contract Administration” section.

Operational Functionality: This means that the System is fully operational and accessible to all users, with all critical functions, such as transaction processing, user authentication, and data access, performing correctly.

Payment Card Industry Data Security Standard (PCI DSS): A set of security standards regulated and administered by the Payment Card Industry Security Standards Council. These standards are designed to ensure that all companies that accept, process, store, or transmit credit card information maintain a secure environment.

Pilot Testing: A preliminary, small-scale test conducted before the full-scale implementation of the System. The primary goals are to validate the system’s functionality, identify potential issues, gather user feedback, and make necessary adjustments.

Products: Any Contractor-supplied Software and Documentation.

Project Schedule: A comprehensive timeline developed in Microsoft Project that outlines all tasks, milestones, and deliverables for the project.

Baselined Project Schedule: A fixed reference point that captures the original planned schedule, including the start and finish dates of tasks, their durations, and the resources assigned. Once established, it serves as the standard against which actual project performance is measured.

Re-baselined Project Schedule: An updated project schedule that has been adjusted from the original baseline. This adjustment will occur after significant changes to project scope, timelines, or resources and will serve as the new reference point for measuring project progress and performance.

Proposal: Contractor’s written response to the RFP issued in this acquisition process and Contractor’s demonstration materials, including a video recording of Contractor’s demonstration.

Proprietary Information: Information owned by Contractor to which Contractor claims a protectable interest under law. Proprietary Information includes, bus is not limited to, information protected by copyright, patent, trademark, or trade secret laws. Claims of proprietary information do not guarantee confidentiality if the records do not qualify for exemptions from public record requests under RCW 42.56 or other federal or state laws.

Purchaser: The state of Washington, Washington Department of Fish and Wildlife (WDFW), any division, section, office, unit, or other entity of WDFW, or any of the officers or other officials lawfully representing WDFW.

Quality Assurance: The Contractor’s process for verifying that the software meets all specified requirements and is free from defects before it is delivered for user acceptance testing.

Quality Criteria: The specific standards, metrics, and requirements that a project deliverable must meet to be considered acceptable. These criteria must be approved by WDFW and documented in the Contractor’s Project Management Plan.

RCW: The Revised Code of Washington (Washington State Law).

Recreational Documents: Licenses and permits and other documents that are issued through the System for non-commercial fishing and hunting activities and vehicle access passes.

RFP: The Request for Proposal used as a solicitation document in this procurement, as well as all amendments and modifications therein.

Schedule A – Sample System Implementation Statement of Work: The attachment to this Contract that provides the terms and conditions for the initial Statement of Work.

Schedule B – Budget: The attachment to this Contract that provides the payment schedule agreed to in this Contract.

Schedule C – Project Management Process: The attachment to this Contract that provides the terms and conditions for conducting project management.

Scheduled Downtime: The period of downtime that is planned and approved in advance by the WDFW System Manager in advance for reasons such as scheduled maintenance, System updates, patches, and System upgrades.

Services: All tasks to be performed and provided by Contractor as described in the RFP, Contractor’s Proposal, this Contract, and change orders, including without limitation, implementation services, project management, testing, production, delivery, operation and maintenance of the System, and training.

Software: The comprehensive set of programs and applications that make up the System. This includes frontend components, backend components, middleware, database systems, security systems, and integration components.

Specifications: The technical and other specifications describing the operation, function, and use of the Software.

Standards of Performance: The criteria that must be met before the System can be accepted by WDFW, as set forth in the section titled “Performance.” Performance also applies to all additional, replacement, or substitute aspects of the System that are modified by Contractor after having been accepted.

Statement of Work (SOW): A separate statement of the work to be accomplished by Contractor under the terms and conditions of this Contract. The System Implementation SOW, which has been negotiated between Contractor and WDFW, is attached as Schedule A. Although this is a fixed fee contract, Statements of Work are to be proposed for major milestones and deliverables and will be used to monitor progress for this time-sensitive project.

Subcontractor: An entity that is bound by an agreement to perform all or part of any Services under this Contract that are not Commercial-Off-the-Shelf (COTS) products and/or services.

System: The Washington Interactive Licensing Database (WILD) System.

System Failure: An event which renders the System unavailable or unusable due to issues such as hardware or software malfunctions, network disruptions, data corruption, or security breaches, resulting in impaired performance and system unavailability.

Technical Design: The Specifications document usually kept in electronic format, including but not limited to, the description of the data, program operation, and external interfaces for the System. The Technical Design document is the property of WDFW as maintained and updated by Contractor.

Transaction: The act of purchasing or obtaining one or more license documents, privileges, or other items available for sale within the System. This encompasses the submission of special hunt applications and hunting activity reports.

UBI: Contractor’s Uniform Business Identifier issued by the Washington State Department of Revenue.

User: An individual designated as a Clerk, Manager, or System Administrator within the WILD System, identified by a unique user ID.

Unscheduled downtime: Downtime due to System failures or Defects which result in impaired performance, System unavailability, or a System availability occurrence.

Uptime: The period during which the System is fully operational and accessible to all system users, both internal and external.

WILD System: The Washington Interactive Licensing Database System.

Written: Any message or document exchanged between the Contractor and WDFW personnel that is relevant to the Contract, regardless of whether it is transmitted electronically or by courier.

Written and signed: This shall encompass any document exchanged between the Contractor and WDFW personnel that pertains to the Contract. These documents must be signed by the appropriate personnel and distributed with copies to the individuals listed in the “Contract Administration” section, as well as the transmitter’s manager(s).

WDFW: The State of Washington, Department of Fish and Wildlife, any division, section, office, unit other entity of WDFW, or any of the officers or officials lawfully representing WDFW that has executed this contract with Contractor for Specified Software and Services.

CONTRACT TERM

2. Term

2.1 Period of Performance. This Contract shall be effective as of _______________and continue for a period of six (6) years, unless extended as provided herein (“Initial Term”). WDFW shall have a legal right as an option to extend this Contract for three (3) two (2)-year periods at no additional consideration (“Options”). WDFW shall exercise such options by giving Contractor Notice of its intent to exercise the option no later than twelve (12) months prior to the end of the then current Contract term. If such option is exercised, the Contract shall continue under the terms then in place for the additional period. The totality of the Initial Term and all extensions shall be Contract Term.

3. Survivorship

All transactions executed pursuant to the authority of this Contract shall be bound by all terms and conditions set forth herein throughout the duration of this Contract and any extensions therein. Further, the terms and conditions contained in the Contract that, by their sense and context, are intended to survive the completion of the performance, cancellation, or termination of the Contract shall so survive. Such sections include “Overpayments to Contractor,” “Contractor’s Commitments,” “Warranties,” “Section Headings, Incorporated Documents and Order of Precedence,” “Publicity,” “Review of Contractor’s Records,” “Contractor’s Proprietary Information,” “Disputes,” “Limitation of Liability,” “Patent and Copyright Indemnification,” and “Protection of WDFW’s Confidential Information.” The aforementioned terms and conditions shall survive the expiration and/or termination of this Contract.

COMPENSATION, INVOICE, AND PAYMENT

4. Compensation

4.1 All compensation shall be in the form of a fixed monthly payment according to the payment table in Schedule B – Budget. No compensation shall be due until after Initial Deployment.

4.2 Contractor shall submit an invoice to WDFW on the first day of each month for the fixed monthly payment amount agreed upon in this contract. Any services requested by WDFW that are not included in the fixed monthly payment schedule shall be considered additional services. All additional services must be approved in writing by WDFW before commencement. Contractor shall invoice WDFW for additional services on a monthly basis. Each invoice will include a detailed description of the additional services provided, the hours worked, and the applicable rates.

4.3 Incorrect or incomplete invoices will be returned by WDFW to Contractor for correction and reissue. WDFW will notify Contractor of such problems within five (5) Business Days of receipt of an unacceptable invoice.

4.4 WDFW will reimburse Contractor within thirty (30) calendar days of receipt of properly executed invoice vouchers, less Liquidated Damages, and less the value of Development Hours unused in prior year, if any.

4.5 Payment shall be in accordance with the Budget (Schedule B). No payment in advance or in anticipation of goods and services under this Contract shall be made by WDFW. Claims for payment submitted by Contractor to WDFW for costs due and payable under this Contract that were incurred prior to the expiration date shall be paid to Contractor if received by WDFW within ninety (90) days after the expiration date.

4.6 Contractor is required to be registered in the Statewide Contractor Payment System prior to submitting a request for payment under this Contract. The Washington State Department of Enterprise Services (DES) maintains the Statewide Contractor Payment System. To obtain registration materials, contact the Statewide Payee Desk at (360) 407-8180; or go to:

http://des.wa.gov/services/ContractingPurchasing/Business/ContractorPay/Pages/defa ult.aspx.

4.7 Contractor shall work closely with WDFW and the Washington State Treasurer’s Office to ensure proper transfer of all funds collected through the System.

4.8 Contractor has provided rates for change request work which are included in Schedule B - Budget. No other costs, rates, or fees shall be payable to Contractor for services performed hereunder.

5. Advanced Payment Prohibited

No advance payment shall be made for Services or Software furnished by Contractor pursuant to this Contract.

6. Taxes

WDFW will pay Contractor for any sales or use taxes imposed for services provided under this Contract if WDFW receives an invoice from Contractor for such taxes that are applicable.

Contractor must pay all other taxes including, but not limited to, Washington Business and Occupation Tax, taxes based on Contractor income, or personal property taxes levied or assessed on Contractor’s personal property to which WDFW does not hold title. WDFW, as an agency of Washington State government, is exempt from property tax. Contractor shall complete registration with the Washington State Department of Revenue and be responsible for payment of all taxes due on payments made under this Contract.

7. Overpayment to Contractor

Upon thirty (30) days’ written notice, Contractor shall promptly credit or refund to WDFW the full amount of any erroneous payment or overpayment that Contractor is not entitled pursuant to this Contract. If Contractor fails to make such a timely credit or refund, WDFW may charge Contractor one percent (1%) per month on the amount of overpayment due, until paid in full.

8. System Documentation

8.1 Contractor will provide updates to the Technical Design for each release by electronic mail transmission.

8.2 Contractor is responsible for producing and updating all manuals and documentation. Contractor grants WDFW the right to copy or otherwise reproduce manuals and documentation for use within the scope of this Contract at no additional charge.

8.3 WDFW can share copies, including electronic versions of manuals and documentation, with other Contractors for the purpose of developing interfaces with other WDFW applications.

CONTRACTOR’S RESPONSIBILITIES

9. Performance

In addition to other obligations required of Contractor under this Contract, Contractor agrees to perform the following critical functions. The obligations set forth in this section do not limit the materiality of other obligations under this contract.

9.1 Deliverables. Contractor agrees to meet the delivery dates for all deliverables as set forth in the System Implementation Statement of Work (Schedule A).

9.2 System Delivery. Contractor shall deploy the System as defined in the Statement of Work where initial deployment is on or before June 9, 2026, unless otherwise approved by WDFW. Project management is to be done in alignment with legislative mandates for IT projects in Senate Bill 5187, Section 701. For any exception to the agreed upon deployment date, Contractor must notify WDFW and obtain prior approval in writing. Time is of the essence with respect to initial deployment, and Contractor may be subject to Liquidated Damages and/or termination of this Contract and/or other damages available under law for failure to deliver on time.

9.3 Standards of Performance. Contractor warrants that it shall maintain the System, in whole and in part, to meet the Standards of Performance. Contractor must implement all testing, measurement, and monitoring tools and procedures required to measure and report Contractor’s performance of the System against the applicable Standards. Such testing, measurement, and monitoring must be communicated to WDFW at a level of detail sufficient to verify compliance with the Standards of Performance and will be subject to audit by WDFW.

Contractor will provide WDFW with information and access to all information or work product produced by such tools and procedures upon request for purposes of verification.

The following documents identify the agreed-upon standards:

• System Implementation Statement of Work – Schedule A

• Budget – Schedule B

• Project Management Process – Schedule C

• [Other standards to be determined by Contractor’s response to the RFP] https://lawfilesext.leg.wa.gov/biennium/2023-24/Pdf/Bills/Session%20Laws/Senate/5187-S.SL.pdf?q=20230524154740 https://lawfilesext.leg.wa.gov/biennium/2023-24/Pdf/Bills/Session%20Laws/Senate/5187-S.SL.pdf?q=20230524154740

10. Commencement of Work

No work shall be performed by Contractor until this Contract is fully executed by Contractor and WDFW.

11. Additional Development Hours

Contractor must provide at no additional charge up to ___ development hours per year, from contract start date, to cover additional System changes or enhancements. Any additional hours above that level will result in a time and materials deliverables-based amendment to the Contract. The Hourly Rates Table set out in the Budget, Attachment B, will apply to requests outside the basic changes above and beyond the pool of ___ hours per year. No additional charges for staff costs, non-labor expenses, tax, overhead, travel, lodging, meals, or other expenses shall be allowed.

WDFW shall document any request for use of the Development Hours in writing. Each year Contractor will credit WDFW an amount equal to the extended combined rate in the hourly rates table in the Budget for each hour requested by WDFW but not provided. Amounts due shall be an annual line-item adjustment by Contractor as a credit against an invoiced charge on the anniversary date of System Acceptance. Upon termination or expiration of the Contract, a prorated amount due WDFW shall be a line-item adjustment by Contractor as a credit against invoiced charges.

Contract amendments addressing projects using the Hourly Rates Table will take the form of deliverables in a negotiated Statement of Work. Each of these performance-based amendments will be for actual hours worked and will include a maximum expenditure amount.

The hourly rate remains valid until ______________. Annual rate increases beyond that date will be subject to negotiation, but the percentage increase may not exceed the percentage increase in the US Consumer Price Index (“CPI”) for All Items, as calculated from a __________ base.

12. Ownership

12.1 Software Ownership. Contractor shall maintain all title, copyright, and other proprietary rights in the Software code, programming, trade secrets, and other intellectual property created during this Contract. WDFW does not acquire any rights, express or implied, in the Software code, programming, trade secrets, and other intellectual property created other than those specified in this Contract.

In consideration for payment under this Contract, WDFW is granted a personal, non-exclusive, and, unless otherwise provided herein, a nontransferable license to use the Software, in object code form only, solely in connection with the System for WDFW’s internal business purposes on WDFW-owned or leased equipment. WDFW shall not use the licensed Software (i) in connection with the products and/or services of any third party except for license dealers acting in their capacity as license dealers, or (ii) to provide services for the benefit of any third party, including without limitation, as a service bureau.

12.2 System Ownership. Contractor shall own the System and all intellectual property associated with, used in the development of, embodied in, or resulting from the System.

12.3 Data Ownership. Notwithstanding anything herein contained to the contrary, WDFW shall own all data (“WDFW Data”) created within or entered into the System. WDFW Data shall include, without limitation, requirements documentation, and all contents thereof, all information that supports the findings, conclusions, and recommendations of Contractor’s reports, data extracts, management reports, or dealer/user file information provided by WDFW, reports, documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs (not defined in Software Ownership or System Ownership), films, videos, tapes, and/or sound reproductions, license description data, all parameters associated with license types, all price and fiscal data, all transactional data, all data distinguishing individuals from one another, and all information products generated therefrom containing individually distinguishing information, collectively “Personal Information” (i.e., WDFW customer information, etc.). Contractor shall not create any separate database containing any WDFW Data derived from the System without express consent of WDFW. Contractor shall use WDFW Data only to carry out the terms of this Contract. Contractor shall not use any WDFW Data to solicit, directly or indirectly, individuals to become customers of Contractor, its affiliates, or Subcontractors; nor give, sell, or inform any and all other third parties of this data without the express written consent of WDFW.

In the development of the System, WDFW will provide, and Contractor may utilize, certain preexisting data owned by WDFW which does not originate from the work under this Contract, such as the WILD System web address, fishhunt.dfw.wa.gov. WDFW transfers to Contractor a royalty-free, irrevocable license to publish, translate, reproduce, deliver, perform, and display this preexisting data as a part of the System. Except as provided herein and in the performance of its obligations under this Contract, Contractor shall not use or in any manner disseminate any elements of this preexisting data to any third party without the prior written permission of

WDFW.

12.4 Rights in Data. Unless otherwise provided, WDFW shall be the owner for all purposes under Title 17 U.S.C., of all WDFW Data which originates from this Contract. WDFW shall be considered the author of such data. Ownership includes but is not limited to the right to use, copyright, patent, register, and the ability to transfer these rights.

Data which is delivered to WDFW under the Contract but which does not originate from the Contract, shall be transferred to WDFW with a non-exclusive, royalty-free, irrevocable right to publish, translate, reproduce, deliver, perform, dispose of, and to authorize others to do so;

provided, that such right shall be limited to the extent which Contractor has a right to grant such a right. Contractor shall exert all reasonable effort to advise WDFW at the time of delivery of data furnished under this Contract, of all known or potential invasions of privacy contained therein and of any portion of such documents which was not produced in the performance of this Contract. WDFW shall receive prompt written notice of each notice or claim, or copyright infringement received by Contractor with respect to any data delivered under this Contract.

WDFW shall have the right to modify or remove any restrictive markings placed upon the data by Contractor.

12.5 Contractor shall promptly notify WDFW in writing of any claim of copyright or trademark infringement of which it may be made aware with respect to the System or any component thereof. In such event, the provisions of the Patent and Copyright Indemnification section apply as though WDFW gave notice to Contractor.

12.6 All rights in the System and Software provided by Contractor, including without limitation any patents, copyrights, and any other intellectual property rights therein, shall remain the exclusive property of Contractor and/or its suppliers and licensors. WDFW agrees that the System and Software provided by Contractor is the proprietary and confidential information of Contractor and/or its licensors subject to the provisions of “Contractor’s Proprietary Information” section.

13. Site Security

While on WDFW’s premises, Contractor, its agents, employees, and subcontractors shall conform in all respects with physical, fire, computer system, network, or other security requirements communicated to Contractor.

14. Protection of WDFW’s Confidential Information

14.1 Contractor acknowledges that some of the material and information that may come into its possession or knowledge in connection with this Contract or its performance may consist of information that is exempt from disclosure to the public or other unauthorized persons under either RCW 42.56 or other state or federal statutes (Confidential Information). Confidential Information may include, but is not limited to, names, addresses, Social Security numbers, email addresses, telephone numbers, financial profiles, credit card information, driver’s license numbers, medical data, law enforcement records, agency source or object code, agency security data, criminal records, network addresses, or information identifiable to an individual that relates to any of these types of information. Contractor agrees to hold Confidential Information in strictest confidence and not to make use of Confidential Information for any purpose other than the performance of this Contract, to release it only to authorized employees or Subcontractors requiring such information for the purposes of carrying out this Contract, and not to release, divulge, publish, transfer, sell, disclose, or otherwise make it known to any other party without WDFW’s express written consent or as provided by law.

14.2 Immediately upon expiration or termination of this Contract, Contractor shall, at WDFW’s option: (a) certify to WDFW that Contractor has destroyed all Confidential Information; or (b) return all Confidential Information to WDFW; or (c) take whatever other steps WDFW requires of Contractor to protect WDFW’s Confidential Information.

14.3 This section does not impose any obligation on Contractor if the information is: (a) publicly known at the time of disclosure; (b) already known to the receiving party at the time it is furnished to Contractor; (c) furnished by WDFW to others without restrictions on its use or disclosure; or (d) independently developed by the receiving party without use of the proprietary information.

14.4 Contractor shall immediately notify WDFW of any proposed material changes in the purposes or objectives, or in the manner in which said information will be used.

14.5 In the event Contractor deems it necessary to disclose said information to any Subcontractor, Contractor shall secure the written and signed agreement of the Subcontractor to comply with all terms of this section and the “Data Security” section as if the Subcontractor were the Contractor named herein.

14.6 Contractor shall maintain System security, controls, and log files to protect the Confidential Information received in the performance of this Contract. Contractor’s database design, data management practices, security measures, and System controls shall be subject to inspection, review, or audit in accordance with SSAE 18 and Washington State IT security requirements. (See section “Data Security,” below.)

14.7 WDFW reserves the right to monitor, audit, or investigate the use of Confidential Information collected, used, or acquired by Contractor through this Contract. The monitoring, auditing, or investigating may include, but is not limited to, salting databases.

14.8 Upon completion, termination, or suspension of Contractor, it will return all Confidential Information and any copies thereof to WDFW, unless WDFW gives its written consent to destruction, obliteration, or other alternative disposition.

14.9 Violation of this section by Contractor or its Subcontractors may result in termination of this Contract and demand for return of all Confidential Information, monetary damages, or penalties.

The exercise of remedies pursuant to this section shall be in addition to all sanctions provided by law and to legal remedies available to parties injured by disclosures.

15. Data Security

15.1 Contractor shall meet or exceed industry best practices for physical security, data security, network security, and access controls, both technically and procedurally, to protect WDFW Data from unauthorized physical and electronic access and to ensure the confidentiality, availability, and integrity of all data shared. Upon request, Contractor will furnish WDFW with written documentation of how the requirements of this section will be met. Methods employed are subject to annual review and approval by WDFW.

15.2 Data Classification Declaration. The following categories of data could potentially be included within the System:

Category 1 – Public Information: Public information is information that can be or currently is released to the public. It does not need protection from unauthorized disclosure but does need integrity and availability protection controls.

Category 2 – Sensitive Information: Sensitive information may not be specifically protected from disclosure by law and is for official use only. Sensitive information is generally not released to the public unless specifically requested.

Category 3 – Confidential Information: Information that is specifically protected from disclosure by law. It may include but is not limited to:

a. Personal information about individuals, regardless of how that information is obtained.

b. Information concerning employee personnel records.

c. Information regarding IT infrastructure and security of computer and telecommunications systems.

15.3 Data Handling Requirements. Data handling requirements may vary depending on the classification of data shared with Contractor. WDFW Data shared with Contractor or residing in the System may involve a mix of data classes including sensitive and confidential information.

Therefore, whenever data elements are aggregated for collection, transmission, or storage, the aggregate data shall be handled using the protocols that apply to the most sensitive data element.

15.4 Data Storage. Regardless of the media employed (e.g., disk, tape, or other media), sensitive and confidential data must be stored in an encrypted format. Documents generated in printed form will be properly secured, disposed, destroyed, or shredded when no longer needed so unauthorized individuals cannot collect client information. Data destroyed shall include all copies of any data sets in possession after the data has been used for the purpose as specified herein. If data is not destroyed on site, Contractor must use a secure method or vendor to ensure the destruction is completed as outlined above.

Storage of Category 3 or higher information (see section 15.2, above) on portable or removable media or devices requires that the data be encrypted by a process that uses cryptographic modules validated by the National Institute of Standards and Technology (NIST). Contractor certifies that it has a strictly enforced written policy prohibiting the transfer or storage of unencrypted Category 3 or higher information on mobile devices or removable storage media for any reason.

15.5 Data Transmission. Contractor shall comply with the Washington State Office of the Chief Information Officer (OCIO) Policies and Standards, State Technology Manual, Policy No. 141.10, Securing Information Technology Assets Standards. Transmission of Category 3 or higher information outside of the state government network requires encryption such that: (a) all manipulations or transmissions of data during the exchange are secure; (b) if intercepted during transmission, the data cannot be deciphered; and (c) agencies must use industry standard algorithms or cryptographic modules validated by the NIST.

15.6 Data Backups. Data backups of confidential information supplied under this Agreement shall be backed up by Contractor using industry standard encryption modules validated by the NIST.

15.7 Contractor Personnel. Contractor shall limit access to WDFW sensitive and confidential data to those staff members with a well-defined business need. Data will be protected from unauthorized physical and electronic access. Data will be protected in a manner that prevents unauthorized persons from retrieving data by computer, remote terminal, or other means.

Contractor shall provide periodic training to its staff on its internal data security policies and procedures and on applicable state and federal legal requirements for protecting sensitive and confidential data.

15.8 Compliance with Applicable Laws and Regulations. Contractor shall comply with all applicable federal laws and regulations protecting the privacy of personal information.

15.9 Security Breaches. Contractor acknowledges the legal obligation set out in RCW 19.255.010 and RCW 42.56.590 to provide notification of security breaches that may have released personal information of Washington State residents. Contractor agrees that in the event of any breach or compromise of the security, confidentiality, or integrity of computerized data where personal information contained in the System was, or is reasonably believed to have been, acquired and/or accessed by an unauthorized person, Contractor shall notify WDFW of the breach of the security system containing such data within twenty-four (24) hours, comply with all notification actions, and/or assist WDFW with all notification actions required by WDFW policy and the law.

15.10 Indemnification. To the fullest extent permitted by law, Contractor shall defend, indemnify, release, and hold WDFW harmless from and against all claims, losses, and expenses against WDFW arising from or pertaining to the performance of this “Data Security” section, the release by any of Contractor employees or agents of such information provided by WDFW, breach of this “Data Security” section, or the violation of any state or federal law applicable to the use, disclosure, or protection of data covered by this Contract.

15.11 Sensitive Data Destruction. Upon termination of this Contract, Contractor shall ensure that all WDFW Data is removed from Contractor’s possession. Data received or created under this Contract will be removed from computer equipment after it has been used for its stated purposes by using a utility for securely overwriting the data from electronic storage media using a minimum of a DoD three-pass method, degaussing the media, or physically destroying the media in such a way that data cannot be recovered. The procedures used by Contractor for media handling and disposal shall be documented and conform to NIST SP 800-88 Rev 1, Guidelines for Media Sanitization. Contractor shall certify in writing within ten (10) business days after Contract termination that all copies of the data stored on Contractor servers, backup servers, backup media, or other media including paper copies have been permanently erased or destroyed. “Permanently erased” means the data has been completely overwritten and is unrecoverable. File deletions or media high-level formatting operations do not constitute a permanent erasure.

16. Warranties

16.1 Services and System

16.1.1 Contractor represents and warrants that the operation of the System shall meet WDFW Specifications as provided in the Technical Design document and in the Standards of Performance, following its Acceptance by WDFW. Contractor shall repair or replace any aspect or functionality of the System that does not meet applicable specifications as provided herein at no additional charge.

16.1.2 Contractor also represents that it has and warrants that it shall have the capability and capacity to provide and operate the System it has agreed to provide to WDFW, and that it shall secure all Third-Party Software licenses, if necessary, to operate the System in accordance with the terms of the Contract.

16.1.3 Contractor represents and warrants that:

16.1.3.1 It shall operate the System in a professional manner, with high quality, knowledge, and experience in business and systems integrations, maintenance, support, and operations.

16.1.3.2 It shall give highest priority to the performance of the System.

16.1.3.3 The System shall comply with the Standards of Performance.

16.1.3.4 Time shall be of the essence in connection with performance of the System.

16.1.3.5 It shall immediately correct any System functionality that is not in compliance with such representations and warranties at no cost to WDFW.

16.2 Intellectual Property Rights

16.2.1 Contractor, as a service provider, warrants and represents to WDFW that Contractor is the owner of the Software and all other components necessary to operate the System, or otherwise has the right to grant WDFW use of the System without violating any rights of any third party; and that there is currently no actual or threatened suit by any such third party based on an alleged violation of such rights by Contractor.

16.2.2 Contractor hereby represents and warrants that Contractor is the owner of the technology necessary to operate the System or otherwise has the right to grant to WDFW the right to use the System provided by Contractor without violating any rights of any third party enforceable in and under the laws and regulations of the United States, and that WDFW's use of the System will not infringe upon any copyright, patent, trademark, or other intellectual property right enforceable in and under the laws and regulations of the United States or violate any third party's trade secret, contract, or confidentiality rights enforceable in and under the laws and regulations of the United States. Contractor represents and warrants that: (i) Contractor is not aware of any claim, investigation, litigation, action, suit, or administrative or judicial proceeding pending or threatened based on claims that the System infringes any patents or copyrights, or misappropriates trade secrets or other rights of any third party, and (ii) Contractor has no actual knowledge that the System infringes upon any patents, copyrights, trade secrets, or other rights of any third party. WDFW shall receive prompt written notice of each notice or claim of patent or copyright infringement, or infringement of other intellectual property right worldwide received by Contractor with respect to the System. See also Section 31, “Patent and Copyright Indemnification.”

16.3 Date/Time Compliance. Contractor warrants that the System provided under this Contract: (i) does not have a life expectancy limited by date or time format; (ii) will correctly record, store, process, and present calendar dates; (iii) will lose no functionality, data integrity, or performance with respect to any date; and (iv) will be interoperable with software used by WDFW that may deliver date records from the System or interact with date records of the System (Date Warranty). In the event a Date Warranty problem is reported to Contractor by WDFW, and such problem remains unresolved after three (3) calendar days, at WDFW’s discretion, Contractor shall send, at Contractor’s sole expense, at least one (1) qualified and knowledgeable representative to WDFW’s premises. This representative will continue to address and work to remedy the failure, malfunction, defect, or nonconformity on WDFW’s premises.

This Date Warranty shall last throughout the term of this Agreement. In the event of a breach of any of these representations and warranties, Contractor shall indemnify and hold harmless WDFW from and against any and all harm, injury, damages, costs, and expenses incurred by WDFW arising out of said breach.

16.4 No Surreptitious Code

16.4.1 Contractor warrants to WDFW that no Software provided to WDFW contains or will contain any self-help code nor any unauthorized code as defined below at the time of delivery. The warranty is referred to in this Contract as the “Surreptitious Code Warranty,”

16.4.2 As used in this Contract, “Self-help Code” means any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of a person other than a licensee of the Software. Self-help Code does not include software routines in a computer program, if any, designed to permit an Owner (licensor) of the computer program (or other person acting by authority of the Owner) to obtain access to a licensee’s computer System(s) (e.g., remote access via network or modem) for purposes of maintenance or customer support.

16.4.3 As used in this Contract, Unauthorized Code means any virus, Trojan horse, worm, other software routine, or hardware component designed to permit unauthorized access to disable, erase, or otherwise harm Software,…