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STATEMENT OF WORK
Website Redesign
August 17, 2015
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1201 Leopard St
Corpus Christi, TX 78401
2015-408
9/29/15
Ord. 030632
Springbox
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BACKP,RnI INF)
The City of Corpus Christi, Texas is looking to elevate their digital experience and better communicate
with residents. They have engaged Springbox to redesign and build a responsive site to ensure an
experience that is accessible, WCAG 2.0 compliant, safe and user friendly.
Springbox's Strategy, UX, Creative and Development teams will collaborate to develop a site that meets
all best practices and serves all user groups of the city website, both internal and external. In addition, the
client team at the Department of Communication will utilize their internal resources to ensure the site is
built as efficiently as possible through collaboration around content migration.
Phase I outlined below will yield a more defined roadmap, estimate, and internal staffing recommendation
to set up a successful build of the new website. The Phase II build is currently scoped with estimated
hours per department and tasks that make up the Springbox proven process.
SCOPE OF WORK - SERVICE AND DELIVERABLES
The below defines the items that are considered in scope for this website redesign, through two Phases.
The entire scope of work will be approached with the WCAG 2.0 compliancy at the forefront. WCAG 2.0
guidelines will be followed using the WC3 recommendations here: http://www.w3.org/TR/2008/REC-
WCAG20-20081211/
PHASE I: STRATEGIC DISCOVERY
2 day, on-site stakeholder interview sessions
o Survey creation and distribution to all departments to align on priorities before on-site
sessions
O 30 minute session with each of the 30 departments, on-site at the City of Corpus Christi
offices
O 1 hour session with city selected residents
Persona validation
- Competitive analysis of 1-2 sites
Sitemap creation based on content recommendations
o L1-L2, including L3 if necessary
• 1 round of revision
User path flows
6-8 Responsive Web Design Wireframes
O 2 rounds of revision
Best practices review and high-level content guidance on how to organize content and flow
Technical audit and recommendations
o Deep dive audit of potential CMS solutions, based on identified content needs and persona
research
O 2 stakeholder interviews with IT team
• Initial alignment and goal setting interview
• Validation and recommendation interview
o Defined feature list
o Recommendation for CMS
Clearly defined estimate for Phase II including number of feature sets/content modules, hours per
department and collaboration plan for content migration
o Estimate and plan will be agreed upon by both parties before moving into the website build
Project and Account Management
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Out of Scope Items for Phase
• Site content creation beyond wireframes
• Post handoff support
• Additional rounds of review
• Additional design concepts outside of pre-created templates
• Front-or back-end development of wireframes or templates within the chosen CMS
Cost Phase
• Cost: $40,127.445
• Timing: 5-7 weeks
Category Service Hours Rate MSRP Total Discount Total
Website Content
Design/Development Strategy 120 154 18480 20.75% 14645.4
Website
Design/Development UX 120 154 18480 20.75% 12645.4
Web Content
Management Development 51 170 8670 20.75% 6870.9.75__
Website
Design/Development PM 36 139 5004 20.75% 3965.67
TOTAL 50634 40127.445
,
Phase I of this engagement will further define tasks, estimates and deliverables for the full site build
(Phase II)and will be outlined in a separate document at the completion of the first phase. At this time,
the following is our best estimate of effort across teams to build a customized website for the City of
Corpus Christi, based off of best practices, WCAG 2.0 guidelines and Springbox process:
Set-Up
• Brand onboarding
• Type-kit set up
• Staging site creation
• Production environment set up
• Chosen CMS initial set up
Strategy & Research:
• IA/Navigation review
• SEO recommendations
• Source messaging audit and recommendations
Cancepting/Ideation
Creative brief development
• Ideation/Concept development
• Cross functional collaboration to validate concepts
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• Additional wireframe development, where necessary
• Homepage concept design
o #of concepts and rounds of revision to be determined upon completion of Phase I
• Global styles and navigation design
• Design of additional unique content layouts
o #of unique layouts to be determined upon completion of Phase I
• Stock image sourcing and support
• Copywriting for website messaging
o Homepage
o Headlines for all department pages
o Creation of style guide for all L1 pages
• Each department is responsible for editing existing content on landing page to fit the style
guide
• Light support where needed for consistency in voice and tone
Content Migration
o Springbox and the Client will align on a content migration plan to ensure that all pertinent
content is migrated to the new site without increasing scope
• Development of an alpha site for user feedback
o Priority of alpha launched pages and timeline of testing to be determined at the onset of
Phase II
o All user feedback to be collected and synthesized by the client
o Client and Springbox will prioritize feedback and edits following agreed upon alpha testing
timeline
• Major edits may require additional scope and corresponding change order
• Form and Module Development
o #of forms and modules to be determined upon completion of Phase
• Style guide development for messaging and design
CMS training documentation and two hour on-site training at City of Corpus Christi office
• Google analytics tagging implementation
o #of events and custom tags to be determined upon completion of Phase I
• Meta data and Alt tag creation
• Quality assurance of all deliverables
Cost Breakdown. Phase H:
• Cost: $136,870.10
• Timing: TBD
Category Service Hours Rate MSRP Total Discount Total
Website Content
Design/Development Strategy 52.5 154 8085 20.75% 6407.36
Website
Design/Development UX 52.5 154 8085 20.75% 6407.36
Website Creative
Design/Development (Design) 367.5 146 53655 20.75% 42521.58
Web Content
Management Dev 446 170 75820 20.75% 60087.35
Quality Assurance QA 73.75 137 10103.75 20.75% 8007.22
Website
Design/Development PM 122 139 16958 20.75% 13439.22
TOTAL 172706.75 136870.10
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MAINTENANCE AND SUPPORT
Due to the unknowns around user feedback and functionality edits coming from the alpha site, Springbox
and the Client are reserving funds to support this. These funds will be billed as time and materials, and if
there are any funds left over post launch, they will be used for general maintenance, edits and bug fixes.
Category Service Hours Rate MSRP Total Discount Total
Web Content
Management Development 60 170 10200 20.75% 8083.5
TOTAL 10200 8083.5
ASSUMPTIONS
The items listed below should include all call outs that are required for maintaining scope.
Work that is requested outside of the above general maintenance terms may be addressed in an
additional agreement and/or funds may be reallocated to cover increased costs on a specific
effort resulting in reduced funds for original scope
Assumes no complex 3rd party system integrations. If integrations are required, additional costs
may be addressed in a change order
At the end of any phase of work, if either party decides to not move forward, all completed work
will be billed and the engagement can be terminated as long as accompanied by written
instruction to do so
Springbox hosting costs are not included in this document and will represent additional hard costs
to be covered by the Client if it is determined that hosting is needed
There is a hard cost of$80/month for hosting of the staging environment which will be billed as
part of this scope
This agreement does not account for any hard costs. Items required to be billed as such will
require a corresponding change order
Travel and lodging costs are not included as part of this agreement. Any travel and lodging
required will require a corresponding change order or purchase by the client
Any additional hardware or software expenses specific to the Client will be considered a third
party cost and will be billed directly to the Client
Usability testing to be completed by the client unless service is called-out in scope
Once a deliverable is determined final approved ("locked") it will be implemented as such
throughout the remainder of work. If additional edits are required once locked, additional time,
scope, budget may be required
If Springbox provides support after launch, Spring box is only responsible for functional bugs—a
responsibility which is voided once a party other than Springbox makes any changes to code
The Client will provide branding guidelines
The browser listing for this scope is: IE: 9, 10, 11
o If Internet Explorer 8 support is required, add an additional 5% development cost
o If Internet Explorer 7 support is required, add an additional 5% development cost
Latest desktop version: Chrome, Firefox, Safari
Latest mobile version: Android, iOS
o Latest version of iOS on iPad and iPhone, defined as latest version currently released to the
public at the time the SOW is signed
o If any operating system version outside of our testing suite is required for support, there will
be an additional 5% development cost for each one
Springbox assumes a dedicated, responsive client name resource for timely turnaround and
decision making
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The Client will respond to Springbox timing/schedules and delays and this may impact timing of
delivery and potentially cost
Springbox will provide a 30 day support period post launch
Springbox recommends using a managed hosting provider (such as Rackspace)for constant
uptime and support of your server(s). If you choose a non-managed hosting solution,
configurations and maintenance of the server may not be able to be managed by Springbox. At
Springbox we specialize in application development, deployment and maintenance, not server
administration/maintenance. We can provide the required information in order to properly
configure the server for hosting your application, however providing direct server administration
support must be included in a separate scope of work.
Springbox has access to the client analytics tools and data
MILESTONES AND TIMING
The below are high-level timing milestones to direct the project planning. Once scope is agreed upon
Springbox will provide detailed schedule outlining presentation dates, review and feedback timing, and
deliverable dates.
Phase I Kickoff: September 1, 2015
Phase I Delivered: Estimated October 12-23, 2015
Phase II Kickoff: October 26, 2015
Launch: Estimated January/February 2016
FEE, INVOICING SCHEDULE AND SERVICE TERM
The below amount is currently allocated for scoped work. Upon approval and agreement of scope the
terms of this agreement take affect stating that Springbox shall be compensated for services provided
hereunder on a fixed fee basis. Pricing is based on the known assumptions and level of service outlined
in this Statement of Work using the standard agency rate card. Spring box agrees that the professional
fees pursuant to this SOW shall be $185,081.04.
Cost Breakdown:
Phase I $50,634.00 MSRP
Phase II $172,706.75 MSRP
Maintenance & Support, Time and Materials $10,200.00 MSRP
Taxes (if applicable) $N/A
Total $233,540.75 MSRP
-20 75% DIR Pricing Discount $48.459.71
Total to be Billed $185,081.04
Invoicing Schedule:
Billed at Signature $88,498.77
Billed at Launch $88,498.77
Billed Post Launch, T&M $8,083.50
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Appendix A
Standard Terms and Conditions For Services Contracts
APPROVAL
This Statement of Work serves as authorization between Client and Springbox for Springbox to
engage in the Services and agreement by the parties to be bound by the terms listed in Appendix
A, above, under the State of Texas DIR contract terms.
This Statement of Work is inclusive only of the Deliverables and Services as set forth in this
Statement of Work and any additional deliverables or services requested by Client would result in
a separate Statement of Work. Any changes to the Deliverables or Services set forth in this
Statement of Work will result in delays in delivery and/or changes to Fees and will be made
pursuant to a Change Order executed by both parties.
Accepted and'Agreea
The City of Corpus Christi Digital Results LLC, I • Springbox
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SECRETARY . 36
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Table of Contents
1. No Quantity Guarantees 9
2. Definitions ..9
3. General Provisions 10
A. Entire Agreement 10
B. Modification of Contract Terms and/or Amendments 10
C. Invalid Term or Condition 10
D. Assignment 10
E. Survival 11
F. Choice of Law 11
G. Limitation of Authority 11
H. Proof of Financial Stability 11
4. Intellectual Property Matters 11
A. Definitions 3
B. Ownership. 12
C. Further Actions. 13
D. Waiver of Moral Rights. 13
E. Confidentiality. 14
F. Injunctive Relief. 14
G. Return of Materials Pertaining to Work Product. 6
H. Vendor License to Use. 14
I. Third-Party Underlying and Derivative Works 14
J. Agreement with Subcontracts. 15
K. License to Customer. 7
L. Vendor Development Rights. 15
5. Terms and Conditions Applicable to State Agency Purchases Only 15
A. Electronic and Information Resources Accessibility Standards, As Required
by 1 TAC Chapters 206 and 213 (Applicable to State Agency and
Institution of Higher Education Purchases Only) 15
B. Purchase of Commodity Items (Applicable to State Agency Purchases
Only) 16
6. Contract Fulfillment and Promotion 16
A. Service, Sales and Support of the Contract 16
B. Internet Access to Contract and Pricing Information 16
1) Vendor Website 16
2) Accurate and Timely Contract Information 17
3) Website Compliance Checks 17
4) Website Changes 9
5) Use of Access Data Prohibited 17
6) Responsibility for Content 17
C. Services Warranty and Return Policies 17
D. DIR Logo 17
E. Vendor Logo 18
F. Trade Show Participation 18
G. Performance Review Meetings 18
H. DIR Cost Avoidance 18
7. Pricing, Purchase Orders, Invoices, and Payments 18
A. Manufacturer's Suggested Retail Price (MSRP) or List Price 18
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B. Customer Discount 18
C. Customer Price 18
D. Shipping and Handling Fees 19
E. Tax-Exempt 19
F. Travel Expense Reimbursement 19
G. Changes to Prices 19
H. Purchase Orders 20
I. Invoices 20
J. Payments 20
8. Contract Administration 20
A. Contract Managers 20
1) State Contract Manager 21
2) Vendor Contract Manager 21
B. Reporting and Administrative Fees 21
1) Reporting Responsibility 21
2) Detailed Monthly Report 21
3) Historically Underutilized Businesses Subcontract Reports 21
4) DIR Administrative Fee 21
5) Accurate and Timely Submission of Reports 22
C. Records and Audit 22
D. Contract Administration Notification 23
9. Vendor Responsibilities 24
A. Indemnification 24
1) Independent contractor 24
2) Acts or Omissions 24
3) Infringements 24
4) PROPERTY DAMAGE 25
B. Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE 25
C. Vendor Certifications 25
D. Ability to Conduct Business in Texas 27
E. Equal Opportunity Compliance 27
F. Use of Subcontractors 27
G. Responsibility for Actions 28
H. Confidentiality 28
I. Security of Premises, Equipment, Data and Personnel 28
J. Background and/or Criminal History Investigation 28
K. Limitation of Liability 28
L. Overcharges 29
M. Prohibited Conduct 29
N. Required Insurance Coverage 29
O. Use of State Property 30
P. Immigration 30
Q. Public Disclosure 31
R. Product and/or Services Substitutions 31
S. Secure Erasure of Hard Disk Managed Services Products and/or Services 31
T. Deceptive Trade Practices; Unfair Business Practices 31
U. Drug Free Workplace Policy 31
V. Accessibility of Public Information 31
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W. Vendor Reporting Responsibilities 32
10. Contract Enforcement 33
A. Enforcement of Contract and Dispute Resolution 33
B. Termination 33
1) Termination for Non-Appropriation 33
a) Termination for Non-Appropriation by Customer 33
b) Termination for Non-Appropriation by DIR 33
2) Absolute Right 34
3) Termination for Convenience 34
4) Termination for Cause 34
a) Contract 34
b) Purchase Order 34
5) Customer Rights Under Termination 34
6) Vendor or Order Fulfiller Rights Under Termination 35
C. Force Majeure 35
11. Notification 35
A. Notices 35
B. Handling of Written Complaints 35
12. Captions 35
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Appendix A
Standard Terms and Conditions For Services Contracts
1 NO QUANTITY GUARANTEES
The Contract is not exclusive to the Vendor. Customers may obtain services from other
sources during the term of the Contract. DIR makes no express or implied warranties
whatsoever that any particular quantity or dollar amount of services will be procured
through the Contract.
DEFINITIONS
• A. Customer- any Texas state agency, unit of local government, institution of higher
education as defined in Section 2054.003, Texas Government Code, and those state
agencies purchasing from a DIR contract through an Interagency Agreement, as authorized
by Chapter 771, Texas Government Code, any local government as authorized through the
Interlocal Cooperation Act, Chapter 791, Texas Government Code, the state agencies and
political subdivisions of other states as authorized by Section 2054.0565, Texas Government
Code, and, except for telecommunications services under Chapter 2170, Texas Government
Code, assistance organizations as defined in Section 2175.001, Texas Government Code to
mean:
1)A non-profit organization that provides educational, health or human
services or assistance to homeless individuals;
2)A nonprofit food bank that solicits, warehouses, and redistributes edible
but unmarketable food to an agency that feeds needy families and
individuals;
3)Texas Partners of the Americas, a registered agency with the Advisory
Committee on Voluntary Foreign Aid, with the approval of the Partners
of the Alliance Office of the Agency for International Development;
4)A group, including a faith-based group, that enters into a financial or non-
financial agreement with a health or human services agency to provide
services to that agency's clients;
5)A local workforce development board created under Section 2308.253;
6)A nonprofit organization approved by the Supreme Court of Texas that
provides free legal services for low-income households in civil matters;
7)The Texas Boll Weevil Eradication Foundation, Inc., or an entity
designated by the commissioner of agriculture as the foundation's
successor entity under Section 74.1011, Texas Agriculture Code;
8)A nonprofit computer bank that solicits, stores, refurbishes and
redistributes used computer equipment to public school students and
their families; and
9)A nonprofit organization that provides affordable housing.
• B. Compliance Check— an audit of Vendor's compliance with the Contract may be
performed by, but not limited to, a third party auditor, DIR Internal Audit department, or DIR
contract management staff or their designees.
• C. Contract—the document executed between DIR and Vendor into which this Appendix A
is incorporated.
• D. CPA— refers to the Texas Comptroller of Public Accounts.
• E. Day - shall mean business days, Monday through Friday, except for State and Federal
holidays, unless otherwise specified as calendar days. If the Contract calls for performance
on a day that is not a business day, then performance is intended to occur on the next
business day.
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Standard Terms and Conditions For Services Contracts
• F. Purchase Order-the Customer's fiscal form or format, which is used when making a
purchase (e.g., formal written Purchase Order, Procurement Card, Electronic Purchase
Order, or other authorized instrument).
• G. State—refers to the State of Texas.
GENERAL PROVISIONS
A. Entire Agreement
The Contract, Appendices, and Exhibits constitute the entire agreement between DIR
and the Vendor. No statement, promise, condition, understanding, inducement or
representation, oral or written, expressed or implied, which is not contained in the
Contract, Appendices, or its Exhibits shall be binding or valid.
B. Modification of Contract Terms and/or Amendments
1) The terms and conditions of the Contract shall govern all transactions by
Customers under the Contract. The Contract may only be modified or amended
upon mutual written agreement of DIR and Vendor.
2) Customers shall not have the authority to modify the terms of the Contract;
however, additional Customer terms and conditions that do not conflict with the
Contract and are acceptable to Vendor may be added in a Purchase Order and given
effect. No additional term or condition added in a Purchase Order issued by a
Customer can conflict with or diminish a term or condition of the Contract. Pre-printed
terms and conditions on any Purchase Order issued by Customer hereunder will
have no force and effect. In the event of a conflict between a Customer's Purchase
Order and the Contract, the Contract term shall control.
3) Customers and Vendor will negotiate and enter into written agreements regarding
statements of work, service level agreements, remedies, acceptance criteria,
information confidentiality and security requirements, and other terms specific to their
Purchase Orders under the Contract with Vendor.
C. Invalid Term or Condition
1) To the extent any term or condition in the Contract conflicts with the applicable
Texas and/or United States law or regulation, such Contract term or condition is void
and unenforceable. By executing a contract which contains the conflicting term or
condition, DIR makes no representations or warranties regarding the enforceability of
such term or condition and DIR does not waive the applicable State and/or United
States law or regulation which conflicts with the Contract term or condition.
2) If one or more term or condition in the Contract, or the application of any term or
condition to any party or circumstance, is held invalid, unenforceable, or illegal in any
respect by a final judgment or order of the State Office of Administrative Hearings or
a court of competent jurisdiction, the remainder of the Contract and the application of
the term or condition to other parties or circumstances shall remain valid and in full
force and effect.
D. Assignment
DIR or Vendor may assign the Contract without prior written approval to: i) a
successor in interest (for DIR, another state agency as designated by the Texas
Legislature), or ii) a subsidiary, parent company or affiliate, or iii) as necessary to
satisfy a regulatory requirement imposed upon a party by a governing body with the
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Standard Terms and Conditions For Services Contracts
appropriate authority. Assignment of the Contract under the above terms shall
require written notification by the assigning party and, for Vendor, a mutually agreed
written Contract amendment. Any other assignment by a party shall require the
written consent of the other party and a mutually agreed written Contract
amendment.
E. Survival
All applicable service agreements that were entered into between Vendor and a
Customer under the terms and conditions of the Contract shall survive the expiration
or termination of the Contract. All Purchase Orders issued and accepted by Vendor
shall survive expiration or termination of the Contract. Rights and obligations under
this Contract which by their nature should survive, including, but not limited to any
and all payment obligations invoiced prior to the termination or expiration hereof,
obligations of confidentiality; and indemnification will remain in effect after
termination or expiration hereof.
F. Choice of Law
The laws of the State shall govern the construction and interpretation of the
Contract. Exclusive venue for all actions will be in state court, Travis County, Texas.
Nothing in the Contract or its Appendices shall be construed to waive the State's
sovereign immunity.
G. Limitation of Authority
Vendor shall have no authority to act for or on behalf of the Texas Department of
Information Resources or the State except as expressly provided for in this
Contract; no other authority, power or use is granted or implied. Vendor may not
incur any debts, obligations, expenses, or liabilities of any kind on behalf of the
State or DIR.
H. Proof of Financial Stability
• Either DIR or Customer may require Vendor to provide proof of financial stability
prior to or at any time during the contract term.
4. INTELLECTUAL PROPERTY MATTERS
A. Definitions
1)" Work Product" means any and all deliverables produced by Vendor for Customer
under a Statement of Work issued pursuant to this Contract, including any and all
tangible or intangible items or things that have been or will be prepared, created,
developed, invented or conceived at any time following the effective date of the
Contract, including but not limited to any (i) works of authorship (such as manuals,
instructions, printed material, graphics, artwork, images, illustrations, photographs,
computer programs, computer software, scripts, object code, source code or other
programming code, HTML code, flow charts, notes, outlines, lists, compilations,
manuscripts, writings, pictorial materials, schematics, formulae, processes,
algorithms, data, information, multimedia files, text web pages or web sites, other
written or machine readable expression of such works fixed in any tangible media,
and all other copyrightable works), (ii) trademarks, service marks, trade dress, trade
names, logos, or other indicia of source or origin, (iii) ideas, designs, concepts,
personality rights, methods, processes, techniques, apparatuses, inventions,
formulas, discoveries, or improvements, including any patents, trade secrets and
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know-how, (iv) domain names, (v) any copies, and similar or derivative works to any
of the foregoing, (vi) all documentation and materials related to any of the foregoing,
(vii) all other goods, services or deliverables to be provided to Customer under the
Contract or a Statement of Work, and (viii) all Intellectual Property Rights in any of
the foregoing, and which are or were created, prepared, developed, invented or
conceived for the use or benefit of Customer in connection with this Contract or a
Statement of Work, or with funds appropriated by or for Customer or Customer's
benefit: (a) by any Vendor personnel or Customer personnel, or (b) any Customer
personnel who then became personnel to Vendor or any of its affiliates or
subcontractors, where, although creation or reduction-to-practice is completed while
the person is affiliated with Vendor or its personnel, any portion of same was
created, invented or conceived by such person while affiliated with Customer.
2) "Intellectual Property Rights" means the worldwide legal rights or interests
evidenced by or embodied in: (i) any idea, design, concept, personality right,
method, process, technique, apparatus, invention, discovery, or improvement,
including any patents, trade secrets, and know-how; (ii) any work of authorship,
including any copyrights, moral rights or neighboring rights; (iii) any trademark,
service mark, trade dress, trade name, or other indicia of source or origin; (iv)
domain name registrations; and (v) any other proprietary or similar rights. The
Intellectual Property Rights of a party include all worldwide legal rights or interests
that the party may have acquired by assignment or license with the right to grant
sublicenses.
3) "Statement of Work" means a document signed by Customer and Vendor
describing a specific set of activities and/or deliverables, which may include Work
Product and Intellectual Property Rights, that Vendor is to provide Customer,
issued pursuant to the Contract.
4) "Third Party IP" means the Intellectual Property Rights of any third party that is
not a party to this Contract, and that is not directly or indirectly providing any goods
or services to Customer under this Contract.
5) "Vendor IP" shall mean all tangible or intangible items or things, including the
Intellectual Property Rights therein, created or developed by Vendor (a) prior to
providing any Services or Work Product to Customer and prior to receiving any
documents, materials, information or funding from or on behalf of Customer relating
to the Services or Work Product, or (b) after the Effective Date of the Contract if
such tangible or intangible items or things were independently developed by Vendor
outside Vendor's provision of Services or Work Product for Customer hereunder and
were not created, prepared, developed, invented or conceived by any Customer
personnel who then became personnel to Vendor or any of its affiliates or
subcontractors, where, although creation or reduction-to-practice is completed while
the person is affiliated with Vendor or its personnel, any portion of same was
created, invented or conceived by such person while affiliated with Customer.
B. Ownership.
As between Vendor and Customer, the Work Product and Intellectual Property
Rights therein are and shall be owned exclusively by Customer, and not Vendor.
Vendor specifically agrees that the Work Product shall be considered "works made
for hire" and that the Work Product shall, upon creation, be owned exclusively by
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Appendix
Standard Terms and Conditions For Services Contracts
Customer. To the extent that the Work Product, under applicable law, may not be
considered works made for hire, Vendor hereby agrees that the Contract effectively
transfers, grants, conveys, assigns, and relinquishes exclusively to Customer all
right, title and interest in and to all ownership rights in the Work Product, and all
Intellectual Property Rights in the Work Product, without the necessity of any further
consideration, and Customer shall be entitled to obtain and hold in its own name all
Intellectual Property Rights in and to the Work Product. Vendor acknowledges that
Vendor and Customer do not intend Vendor to be a joint author of the Work Product
within the meaning of the Copyright Act of 1976. Customer shall have access,
during normal business hours (Monday through Friday, 8AM to 5PM) and upon
reasonable prior notice to Vendor, to all Vendor materials, premises and computer
files containing the Work Product. Vendor and Customer, as appropriate, will
cooperate with one another and execute such other documents as may be
reasonably appropriate to achieve the objectives herein. No license or other right is
granted hereunder to any Third Party IP, except as may be incorporated in the Work
Product by Vendor.
C. Further Actions.
Vendor, upon request and without further consideration, shall perform any acts that
may be deemed reasonably necessary or desirable by Customer to evidence more
fully the transfer of ownership and/or registration of all Intellectual Property Rights in
all Work Product to Customer to the fullest extent possible, including but not limited
to the execution, acknowledgement and delivery of such further documents in a
form determined by Customer. In the event Customer shall be unable to obtain
Vendor's signature due to the dissolution of Vendor or Vendor's unreasonable
failure to respond to Customer's repeated requests for such signature on any
document reasonably necessary for any purpose set forth in the foregoing sentence,
Vendor hereby irrevocably designates and appoints Customer and its duly
authorized officers and agents as Vendor's agent and Vendor's attorney-in-fact to
act for and in Vendor's behalf and stead to execute and file any such document and
to do all other lawfully permitted acts to further any such purpose with the same
force and effect as if executed and delivered by Vendor, provided however that no
such grant of right to Customer is applicable if Vendor fails to execute any document
due to a good faith dispute by Vendor with respect to such document. It is
understood that such power is coupled with an interest and is therefore irrevocable.
Customer shall have the full and sole power to prosecute such applications and to
take all other action concerning the Work Product, and Vendor shall cooperate, at
Customer's sole expense, in the preparation and prosecution of all such applications
and in any legal actions and proceedings concerning the Work Product.
D. Waiver of Moral Rights.
Vendor hereby irrevocably and forever waives, and agrees never to assert, any
Moral Rights in or to the Work Product which Vendor may now have or which may
accrue to Vendor's benefit under U.S. or foreign copyright or other laws and any and
all other residual rights and benefits which arise under any other applicable law now
in force or hereafter enacted. Vendor acknowledges the receipt of equitable
compensation for its assignment and waiver of such Moral Rights. The term "Moral
Rights" shall mean any and all rights of paternity or integrity of the Work Product
and the right to object to any modification, translation or use of the Work Product,
and any similar rights existing under the judicial or statutory law of any country in the
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world or under any treaty, regardless of whether or not such right is denominated or
referred to as a moral right.
E. Confidentiality.
All documents, information and materials forwarded to Vendor by Customer for use
in and preparation of the Work Product shall be deemed the confidential information
of Customer, and subject to the license granted by Customer to Vendor under sub-
paragraph H. Hereunder, Vendor shall not use, disclose, or permit any person to
use or obtain the Work Product, or any portion thereof, in any manner without the
prior written approval of Customer.
F. Injunctive Relief.
The Contract is intended to protect Customer's proprietary rights pertaining to the
Work Product, and the Intellectual Property Rights therein, and any misuse of such
rights would cause substantial and irreparable harm to Customer's business.
Therefore, Vendor acknowledges and stipulates that a court of competent
jurisdiction may immediately enjoin any material breach of the intellectual property,
use, and confidentiality provisions of this Contract, upon a request by Customer,
without requiring proof of irreparable injury as same should be presumed.
G. Return of Materials Pertaining to Work Product.
Upon the request of Customer, but in any event upon termination or expiration of
this Contract or a Statement of Work, Vendor shall surrender to Customer all
documents and things pertaining to the Work Product, including but not limited to
drafts, memoranda, notes, records, drawings, manuals, computer software, reports,
data, and all other documents or materials (and copies of same) generated or
developed by Vendor or furnished by Customer to Vendor, including all materials
embodying the Work Product, any Customer confidential information, or Intellectual
Property Rights in such Work Product, regardless of whether complete or
incomplete. This section is intended to apply to all Work Product as well as to all
documents and things furnished to Vendor by Customer or by anyone else that
pertain to the Work Product.
H. Vendor License to Use.
Customer hereby grants to Vendor a non-transferable, non-exclusive, royalty-free,
fully paid-up license to use any Work Product solely as necessary to provide the
Services to Customer. Except as provided in this Section, neither Vendor nor any
Subcontractor shall have the right to use the Work Product in connection with the
provision of services to its other customers without the prior written consent of
Customer, which consent may be withheld in Customer's sole discretion.
I. Third-Party Underlying and Derivative Works.
To the extent that any Vendor IP or Third Party IP are embodied or reflected in the
Work Product, or are necessary to provide the Services, Vendor hereby grants to
the Customer, or shall obtain from the applicable third party for Customer's benefit,
the irrevocable, perpetual, non-exclusive, worldwide, royalty-free right and license,
for Customer's internal business purposes only, to (i) use, execute, reproduce,
display, perform, distribute copies of, and prepare derivative works based upon such
Vendor IP or Third Party IP and any derivative works thereof embodied in or
delivered to Customer in conjunction with the Work Product, and (ii) authorize others
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to do any or all of the foregoing. Vendor agrees to notify Customer on delivery of
the Work Product or Services if such materials include any Third Party IP. On
request, Vendor shall provide Customer with documentation indicating a third party's
written approval for Vendor to use any Third Party IP that may be embodied or
reflected in the Work Product.
J. Agreement with Subcontracts.
Vendor agrees that it shall have written agreement(s) that are consistent with the
provisions hereof related to Work Product and Intellectual Property Rights with any
employees, agents, consultants, contractors or subcontractors providing Services or
Work Product pursuant to the Contract, prior to their providing such Services or
Work Product, and that it shall maintain such written agreements at all times during
performance of this Contract, which are sufficient to support all performance and
grants of rights by Vendor. Copies of such agreements shall be provided to the
Customer promptly upon request.
K. License to Customer.
Vendor grants to Customer, a perpetual, irrevocable, royalty free license, solely for
the Customer's internal business purposes, to use, copy, modify, display, perform
(by any means), transmit and prepare derivative works of any Vendor IP embodied
in or delivered to Customer in conjunction with the Work Product. The foregoing
license includes the right to sublicense third parties, solely for the purpose of
engaging such third parties to assist or carryout Customer's internal business use of
the Work Product. Except for the preceding license, all rights in Vendor IP remain in
Vendor.
L. Vendor Development Rights.
To the extent not inconsistent with Customer's rights in the Work Product or as set
forth herein, nothing in this Contract shall preclude Vendor from developing for itself,
or for others, materials which are competitive with those produced as a result of the
Services provided hereunder, provided that no Work Product is utilized, and no
Intellectual Property Rights of Customer therein are infringed by such competitive
materials. To the extent that Vendor wishes to use the Work Product, or acquire
licensed rights in certain Intellectual Property Rights of Customer therein in order to
offer competitive goods or services to third parties, Vendor and Customer agree to
negotiate in good faith regarding an appropriate license and royalty agreement to
allow for such.
5. TERMS AND CONDITIONS APPLICABLE TO STATE AGENCY PURCHASES ONLY
A. Electronic and Information Resources Accessibility Standards, As Required by
1 TAC Chapters 206 and 213 (Applicable to State Agency and Institution of
Higher Education Purchases Only)
1) Effective September 1, 2006 state agencies and institutions of higher education
shall procure products which comply with the State Accessibility requirements for
Electronic and Information Resources specified in 1 TAC Chapters 206 and 213
when such products are available in the commercial marketplace or when such
products are developed in response to a procurement solicitation.
2) Upon request, but not later than thirty (30) calendar days after request, Vendor
shall provide DIR with a completed Voluntary Product Accessibility Template (VPAT)
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of the specified product or a URL to the VPAT for reviewing compliance with the
State Accessibility requirements (based on the federal standards established under
Section 508 of the Rehabilitation Act).
B. Purchase of Commodity Items (Applicable to State Agency Purchases Only)
1) Texas Government Code, §2157.068 requires State agencies to buy commodity
items, as defined in 5.B.2, below, in accordance with contracts developed by DIR,
unless the agency obtains an exemption from DIR or a written certification that a
commodity is not on DIR contract (for the limited purpose of purchasing from a local
government purchasing cooperative).
2) Commodity items are commercially available software, hardware and technology
services that are generally available to businesses or the public and for which DIR
determines that a reasonable demand exists in two or more state agencies.
Hardware is the physical technology used to process, manage, store, transmit,
receive or deliver information. Software is the commercially available programs that
operate hardware and includes all supporting documentation, media on which the
software may be contained or stored, related materials, modifications, versions,
upgrades, enhancements, updates or replacements. Technology services are the
services, functions and activities that facilitate the design, implementation, creation,
or use of software or hardware. Technology services include seat management,
staffing augmentation, training, maintenance and subscription services. Technology
services do not include telecommunications services. Seat management is services
through which a state agency transfers its responsibilities to a vendor to manage its
personal computing needs, including all necessary hardware, software and
technology services.
3) Vendor agrees to coordinate all State agency commodity item sales through
existing DIR contracts. Institutions of higher education are exempt from this
Subsection 5.B.
6. CONTRACT FULFILLMENT AND PROMOTinN
A. Service, Sales and Support of the Contract
Vendor shall provide service, sales and support resources to serve all Customers
throughout the State. It is the responsibility of the Vendor to sell, market, and
promote services available under the Contract. Vendor shall use its best efforts to
ensure that potential Customers are made aware of the existence of the Contract. All
sales to Customers for services available under the Contract shall be processed
through the Contract.
B. Internet Access to Contract and Pricing Information
1) Vendor Website
Within thirty (30) calendar days from the effective date of the Contract, Vendor will
establish and maintain a website specific to the service offerings under the Contract
which is clearly distinguishable from other, non-DIR Contract offerings at Vendor's
website. The website must include: the services offered, service specifications,
specific contract pricing expressed in dollars as well as discount off MSRP or List
Price, contact information for Vendor, instructions for obtaining quotes and placing
Purchase Orders. The Vendor's website shall list the DIR Contract number, reference
the DIR Information and Communications Technology Cooperative Contracts
program, display the DIR logo in accordance with the requirements in paragraph D of
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this Section, and contain a link to the DIR website for the Contract.
2) Accurate and Timely Contract Information
Vendor warrants and represents that the website information specified in the above
paragraph will be accurately and completely posted, maintained and displayed in an
objective and timely manner. Vendor, at its own expense, shall correct any non-
conforming or inaccurate information posted at Vendor's website within ten (10)
business days after written notification by DIR.
3) Website Compliance Checks
Periodic compliance checks of the information posted for the Contract on Vendor's
website will be conducted by DIR. Upon request by DIR, Vendor shall provide
verifiable documentation that pricing listed upon this website is compliant with the
pricing as stated in the Contract.
4) Website Changes
Vendor hereby consents to a link from the DIR website to Vendor's website in order
to facilitate access to Contract information. The establishment of the link is provided
solely for convenience in carrying out the business operations of the State. DIR
reserves the right to suspend, terminate or remove a link at any time, in its sole
discretion, without advance notice, or to deny a future request for a link. DIR will
provide Vendor with subsequent notice of link suspension, termination or removal.
Vendor shall provide DIR with timely written notice of any change in URL or other
information needed to access the site and/or maintain the link.
5) Use of Access Data Prohibited
If Vendor stores, collects or maintains data electronically as a condition of accessing
Contract information, such data shall only be used internally by Vendor for the
purpose of implementing or marketing the Contract, and shall not be disseminated to
third parties or used for other marketing purposes. The Contract constitutes a public
document under the laws of the State and Vendor shall not restrict access to
Contract terms and conditions including pricing, i.e., through use of restrictive
technology or passwords.
6) Responsibility for Content
Vendor is solely responsible for administration, content, intellectual property rights,
and all materials at Vendor's website. DIR reserves the right to require a change of
listed content if, in the opinion of DIR, it does not adequately represent the Contract.
C. Services Warranty and Return Policies
Order Fulfiller will adhere to the Vendor's then-currently published policies
concerning services warranties and returns. Such policies for Customers will not be
more restrictive or more costly than warranty and return policies for other similarly
situated Customers for like services.
D. DIR Logo
Vendor may use the DIR logo in the promotion of the Contract to Customers with the
following stipulations: (i) the logo may not be modified in any way, (ii) when
displayed, the size of the DIR logo must be equal to or smaller than the Vendor logo,
(iii) the DIR logo is only used to communicate the availability of services under the
Contract to Customers, and (iv) any other use of the DIR logo requires prior written
permission from DIR.
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E. Vendor Logo
DIR may use the Vendor's name and logo in the promotion of the Contract to
communicate the availability of services under the Contract to Customers. Use of the
logos may be on the DIR website or on printed materials. Any use of Vendor's logo
by DIR must comply with and be solely related to the purposes of the Contract and
any usage guidelines communicated to DIR from time to time. Nothing contained in
the Contract will give DIR any right, title, or interest in or to Vendor's trademarks or
the goodwill associated therewith, except for the limited usage rights expressly
provided by Vendor.
F. Trade Show Participation
At DIR's discretion, Vendor may be required to participate in one or more DIR
sponsored trade shows each calendar year. Vendor understands and agrees that
participation, at the Vendor's expense, includes providing a manned booth display or
similar presence. DIR will provide four months advance notice of any required
participation. Vendor must display the DIR logo at all trade shows that potential
Customers will attend. DIR reserves the right to approve or disapprove of the
location or the use of the DIR logo in or on the Vendor's booth.
C. Performance Review Meetings
DIR will require the Vendor to attend periodic meetings to review the Vendor's
performance under the Contract. The meetings will be held in the Austin, Texas area
at a date and time mutually acceptable to DIR and the Vendor or by teleconference,
at DIR's discretion. DIR shall bear no cost for the time and travel of the Vendor for
attendance at the meeting.
H. DIR Cost Avoidance
As part of the performance measures reported to state leadership, DIR must provide
the cost avoidance the State has achieved through the Contract. Upon request by
DIR, Vendor shall provide DIR with a detailed report of a representative sample of
service sold under the Contract. The report shall contain: service description, list
price, price to Customer under the Contract, and pricing from three (3) alternative
sources under which DIR customers can procure the services.
7. PkilNG, PURCHASE ORDERS, INVOICES, AND PAYMENTS
A. Manufacturer's Suggested Retail Price (MSRP) or List Price
MSRP is defined as the product sales price list published in some form by the
manufacturer or publisher of a product and available to and recognized by the trade.
A price list especially prepared for a given solicitation is not acceptable.
B. Customer Discount
The minimum Customer discount for all products and services will be the percentage
off MSRP as specified in Appendix C, Pricing Index.
C. Customer Price
1) The price to the Customer shall be calculated as follows:
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Customer Price = (MSRP or List Price—Customer Discount as set forth in
Appendix C, Pricing Index) x (1 + DIR Administrative Fee, as set forth in
Section 5.A., DIR Administrative Fee, of the Contract).
2) Customers purchasing products and services under this Contract may negotiate
more advantageous pricing or participate in special promotional offers. In such event,
a copy of such better offerings shall be furnished to DIR upon request.
3) If pricing for products or services available under this Contract is provided by the
Vendor at a lower price to: (i) an eligible Customer who is not purchasing those
products or services under this Contract or (ii) to any other customer under the same
terms and conditions provided for the State for the same commodities and services
under this contract, then the available Customer Price in this Contract shall be
adjusted to that lower price. This requirement applies to products or services quoted
by Vendor or its resellers for a quantity of one (1) under like terms and conditions,
and does not apply to volume or special pricing purchases. Vendor shall notify DIR
within ten (10) days and this Contract shall be amended days to reflect the lower
price.
D. Shipping and Handling Fees
The price to the Customer under this Contract shall include all shipping and handling
fees. Shipments will be Free On Board Customer's Destination. No additional fees
shall be charged to the Customer for standard shipping and handling. If the Customer
requests expedited or special delivery, Customer will be responsible for any charges
for expedited or special delivery.
E. Tax-Exempt
As per Section 151.309, Texas Tax Code, Customers under this Contract are exempt
from the assessment of State sales, use and excise taxes. Further, Customers under
this Contract are exempt from Federal Excise Taxes, 26 United States Code Sections
4253(i) and (j).
F. Travel Expense Reimbursement
Pricing for services provided under this Contract are exclusive of any travel expenses
that may be incurred in the performance of those services. Travel expense
reimbursement may include personal vehicle mileage or commercial coach
transportation, hotel accommodations, parking and meals; provided, however, the
amount of reimbursement by Customers shall not exceed the amounts authorized for
state employees as adopted by each Customer; and provided, further, that all
reimbursement rates shall not exceed the maximum rates established for state
employees under the current State Travel Management Program
(http://www.window.state.tx.us/procurement/progistmp/). Travel time may not be
included as part of the amounts payable by Customer for any services rendered
under this Contract. The DIR administrative fee specified in Section S.A., DIR
Administrative Fee, of the contract is not applicable to travel expense reimbursement.
Anticipated travel expenses must be pre-approved in writing by Customer.
G. Changes to Prices
• Subject to the requirements of this section, Vendor may change the price of any
product or service at any time, based upon changes to the MSRP, but discount
levels shall remain consistent with the discount levels specified in this Contract.
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1) Price increase or decrease change requests must be requested with a signed
cover letter indicating the change in price. Price increase requests must be
accompanied by a copy of the manufacturer or publisher's price list.
2) Price decreases shall take effect automatically during the term of this Contract
and shall be passed onto the Customer immediately.
3) Requests for price increases will be accepted or rejected by DIR within thirty
(30) calendar days after receipt of a properly submitted request. Increases that are
not accepted within thirty (30) calendar days will be deemed rejected. If a properly
submitted increase is rejected, Vendor may request that the product or service
rejected be removed from the Contract. The product or service will be removed
from the Contract upon execution of a written Contract amendment, which shall be
transmitted to Vendor by DIR within thirty (30) calendar days after receipt of the
written request to remove the product or service and executed by both parties
without undue delay. Existing pricing must be honored up to the date of execution
of the Contract amendment. Prices may not be increased for at least ninety (90)
calendar days after the contract start date. Price reductions will be accepted at any
time.
H. Purchase Orders
All Customer Purchase Orders will be placed directly with the Vendor. Accurate
Purchase Orders shall be effective and binding upon Vendor when accepted by
Vendor.
I. Invoices
Invoices shall be submitted by the Vendor directly to the Customer and shall be
issued in compliance with Chapter 2251, Texas Government Code. All payments for
services purchased under the Contract and any provision of acceptance of such
services shall be made by the Customer to the Vendor.
Invoices must be timely and accurate. Each invoice must match Customer's
Purchase Order and include any written changes that may apply, as it relates to
services, prices and quantities. Invoices must include the Customer's Purchase
Order number or other pertinent information for verification of receipt of the services
by the Customer.
The administrative fee specified in Section 5.A., DIR Administrative Fee, of the
contract shall not be broken out as a separate line item when pricing or invoice is
provided to Customer.
J. Payments
Customers shall comply with Chapter 2251, Texas Government Code, in making
payments to Vendor. The statute states that payments for goods and services are
due thirty (30) calendar days after the goods are provided, the services completed,
or a correct invoice is received, whichever is later. Payment under the Contract shall
not foreclose the right to recover wrongful payments.
8. CONTRACT ADMINISTRATION
A. Contract Managers
DIR and the Vendor will each provide a Contract Manager to support the Contract.
Information regarding the Contract Managers will be posted on the Internet website
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designated for the Contract.
1) State Contract Manager
DIR shall provide a Contract Manager whose duties shall include but not be limited
to: i) advising DIR and Vendor of Vendor's performance under the terms and
conditions of the Contract, and ii) periodic verification of pricing and, iii) verification of
monthly reports submitted by Vendor.
2) Vendor Contract Manager
Vendor shall provide a dedicated Contract Manager whose duties shall include but
not be limited to: i) supporting the marketing and management of the Contract, ii)
facilitating dispute resolution between Vendor and a Customer, and iii) advising DIR
of Vendor's performance under the terms and conditions of the Contract. DIR
reserves the right to require a change in Vendor's then-current Contract Manager if
the assigned Contract Manager is not, in the reasonable opinion of DIR, adequately
serving the needs of the State.
B. Reporting and Administrative Fees
1) Reporting Responsibility
a) Vendor shall be responsible for reporting all services purchased under the
Contract. Vendor shall file the monthly reports, subcontract reports, and pay the
administrative fees in accordance with the due dates specified in this section.
b) DIR shall have the right to verify required reports and to take any actions
necessary to enforce its rights under this section, including but not limited to
compliance checks of Vendor's applicable Contract books at DIR's expense.
2) Detailed Monthly Report
Vendor shall electronically provide DIR with a detailed monthly report in the
format required by DIR showing the dollar volume of any and all sales under the
Contract for the previous calendar month period. Reports shall be submitted to
the DIR ICT Cooperative Contracts E-Mail Box at ict.saies@dir.texas.gov.
Reports are due on the fifteenth (15th) calendar day after the close of the
previous month period. If the 15th calendar day falls on a weekend or state or
federal holiday, the report shall be due on the next business day. The monthly
report shall include, per transaction: the detailed sales for the period, Customer
name, invoice date, invoice number, description, quantity, MSRP or List Price,
unit price, extended price, Customer Purchase Order number, contact name,
Customer's complete billing address, the administrative fee due for the reporting
period, and other information as required by DIR. Each report must contain all
information listed above per transaction or the report will be rejected and
returned to the Vendor for correction in accordance with this section.
3) Historically Underutilized Businesses Subcontract Reports
a) Vendor shall electronically provide each Customer with Vendor's relevant
Historically Underutilized Business Subcontracting Report, pursuant to the
Contract, as required by Chapter 2161, Texas Government Code. Reports shall
also be submitted to DIR.
b) Reports shall be due in accordance with the CPA rules.
4) DIR Administrative Fee
a) An administrative fee shall be paid by Vendor to DIR to defray the DIR costs
of negotiating, executing, and administering the Contract. The maximum
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administrative fee is set by the Texas Legislature in the biennial General
Appropriations Act. Payment of the administrative fee shall be due on the
fifteenth (15th) calendar day after the close of the previous month period. DIR
may change the amount of the administrative fee upon thirty (30) calendar days
written notice to Vendor without the need for a formal contract amendment.
b) Vendor shall reference the DIR Contract number, reporting period, and
administrative fee amount on any remittance instruments.
5) Accurate and Timely Submission of Reports
a) The reports and administrative fees shall be accurate and timely and
submitted in accordance with the due dates specified in this section. Vendor
shall correct any inaccurate reports or administrative fee payments within three
(3) business days upon written notification by DIR. Vendor shall deliver any late
reports or late administrative fee payments within three (3) business days upon
written notification by DIR. If Vendor is unable to correct inaccurate reports or
administrative fee payments or deliver late reports and fee payments within three
(3) business days, Vendor must contact DIR and provide a corrective plan of
action, including the timeline for completion of correction. The corrective plan of
action shall be subject to DIR approval.
b) Should Vendor fail to correct inaccurate reports or cure the delay in timely
delivery of reports and payments within the corrective plan of action timeline, DIR
reserves the right to require an independent third party audit of the Vendor's
records as specified in C.3 of this Section, at DIR's expense.
c) Failure to timely submit three (3) reports or administrative fee payments within
any rolling twelve (12) month period may, at DIR's discretion, result in the
addition of a late fee penalty of $100/day for each day the report or payment is
due (up to $1000/month) or suspension or termination of Vendor's Contract.
C. Records and Audit
1) Acceptance of funds under the Contract by Vendor acts as acceptance of the
authority of the State Auditor's Office, or any successor agency or designee, to
conduct an audit or investigation in connection with those funds. Vendor further
agrees to cooperate fully with the State Auditor's Office or its successor or designee
in the conduct of the audit or investigation, including providing all records requested.
Vendor will ensure that this clause concerning the authority to audit funds received
indirectly by subcontractors through Vendor and the requirement to cooperate is
included in any subcontract it awards pertaining to the Contract. Under the direction
of the Legislative Audit Committee, a Vendor that is the subject of an audit or
investigation by the State Auditor's Office must provide the State Auditor's Office with
access to any information the State Auditor's Office considers relevant to the
investigation or audit.
2) Vendor shall maintain adequate records to establish compliance with the
Contract until the later of a period of four(4) years after termination of the Contract or
until full, final and unappealable resolution of all Compliance Check or litigation
issues that arise under the Contract. Such records shall include per transaction:
Customer name, invoice date, invoice number, description, quantity, MSRP or List
Price, unit price, extended price, Customer Purchase Order number, contact name,
Customer's complete billing address, the calculations supporting each
administrative fee owed DIR under the Contract, Historically Underutilized
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Businesses Subcontracting reports, and such other documentation as DIR may
request.
3) Vendor and/or Order Fulfillers shall grant access to all paper and electronic
records, books, documents, accounting procedures, practices and any other items
relevant to the performance of the Contract to the DIR Internal Audit department or
DIR Contract Management staff, including the compliance checks designated by the
DIR Internal Audit department, DIR Contract Management staff, the State Auditor's
Office, and of the United States, and such other persons or entities designated by
DIR for the purposes of inspecting, Compliance Checking and/or copying such books
and records. Vendor and/or Order Fulfillers shall provide copies and printouts
requested by DIR without charge. DIR shall provide Vendor and/or Order Fulfillers
ten (10) business days' notice prior to inspecting, Compliance Checking, and/or
copying Vendor's and/or Order Fulfiller's records. Vendor's and/or Order Fulfillers
records, whether paper or electronic, shall be made available during regular office
hours. Vendor and/or Order Fulfiller personnel familiar with the Vendor's and/or
Order Fulfiller's books and records shall be available to the DIR Internal Audit
department, or DIR Contract Management staff and designees as needed. Vendor
and/or Order Fulfiller shall provide adequate office space to DIR staff during the
performance of Compliance Check. If Vendor is found to be responsible for
inaccurate reports, DIR may invoice for the reasonable costs of the audit, which
Vendor must pay within thirty (30) calendar days of receipt.
4) For procuring State Agencies whose payments are processed by the Texas
Comptroller of Public Accounts, the volume of payments made to Vendor through the
Texas Comptroller of Public Accounts and the administrative fee based thereon shall
be presumed correct unless Vendor can demonstrate to DIR's satisfaction that
Vendor's calculation of DIR's administrative fee is correct.
D. Contract Administration Notification
1) Upon execution of the Contract, Vendor shall provide DIR with written notification
of the following: i) Vendor Contract Administrator name and contact information, ii)
Vendor sales representative name and contact information, and iii) name and contact
information of Vendor personnel responsible for submitting reports and payment of
administrative fees.
2) Upon execution of the Contract, DIR shall provide Vendor with written notification
of the following: i) DIR Contract Administrator name and contact information, and ii)
DIR ICT Cooperative Contracts E-Mail Box information.
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9. VENDOR RESPONSIBILITIES
A. Indemnification
1) Independent contractor
VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF
THIS CONTRACT, IT IS FURNISHING PRODUCTS AND SERVICES IN THE
CAPACITY OF AN INDEPENDENT CONTRACTOR AND THAT VENDOR IS NOT
AN EMPLOYEE OF THE CUSTOMER OR THE STATE OF TEXAS.
2) Acts or Omissions
Vendor shall indemnify and hold harmless the State of Texas and Customers,
AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES,
CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM ANY AND ALL
LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED
COSTS, ATTORNEY FEES, AND EXPENSES arising out of, or resulting from any
acts or omissions of the Vendor or its agents, employees, subcontractors, Order
Fulfillers, or suppliers of subcontractors in the execution or performance of the
Contract and any Purchase Orders issued under the Contract. THE DEFENSE
SHALL BE COORDINATED BY VENDOR WITH THE OFFICE OF THE ATTORNEY
GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY
LAWSUIT AND VENDOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT
FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE
ATTORNEY GENERAL. VENDOR AND THE CUSTOMER AGREE TO FURNISH
TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM.
3) Infringements
a) Vendor shall indemnify and hold harmless the State of Texas and Customers,
AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES,
CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES from any and all third
party claims involving infringement of United States patents, copyrights, trade
and service marks, and any other intellectual or intangible property rights in
connection with the PERFORMANCES OR ACTIONS OF VENDOR PURSUANT
TO THIS CONTRACT. VENDOR AND THE CUSTOMER AGREE TO FURNISH
TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM.
VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING
ATTORNEYS' FEES. THE DEFENSE SHALL BE COORDINATED BY VENDOR
WITH THE OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS STATE
AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND VENDOR
MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE
CONCURRENCE FROM THE OFFICE OF THE ATTORNEY GENERAL.
b) Vendor shall have no liability under this section if the alleged infringement is
caused in whole or in part by: (i) use of the product or service for a purpose or in
a manner for which the product or service was not designed, (ii) any modification
made to the product without Vendor's written approval, (iii) any modifications
made to the product by the Vendor pursuant to Customer's specific instructions,
(iv) any intellectual property right owned by or licensed to Customer, or (v) any
use of the product or service by Customer that is not in conformity with the terms
of any applicable license agreement.
c) If Vendor becomes aware of an actual or potential claim, or Customer
provides Vendor with notice of an actual or potential claim, Vendor may (or in the
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case of an injunction against Customer, shall), at Vendor's sole option and
expense: (i) procure for the Customer the right to continue to use the affected
portion of the product or service, or (ii) modify or replace the affected portion of
the product or service with functionally equivalent or superior product or service
so that Customer's use is non-infringing.
4) PROPERTY DAMAGE
IN THE EVENT OF LOSS, DAMAGE, OR DESTRUCTION OF ANY PROPERTY OF
CUSTOMER OR THE STATE DUE TO THE NEGLIGENCE, MISCONDUCT,
WRONGFUL ACT OR OMISSION ON THE PART OF THE VENDOR, ITS
EMPLOYEES, AGENTS, REPRESENTATIVES, OR SUBCONTRACTORS, THE
VENDOR SHALL PAY THE FULL COST OF EITHER REPAIR,
RECONSTRUCTION, OR REPLACEMENT OF THE PROPERTY, AT THE
CUSTOMER'S SOLE ELECTION. SUCH COST SHALL BE DETERMINED BY THE
CUSTOMER AND SHALL BE DUE AND PAYABLE BY THE VENDOR NINETY (90)
CALENDAR DAYS AFTER THE DATE OF THE VENDORS RECEIPT FROM THE
CUSTOMER OF A WRITTEN NOTICE OF THE AMOUNT DUE.
B. Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE
1) VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE
OF THIS CONTRACT, VENDOR SHALL BE ENTIRELY RESPONSIBLE FOR THE
LIABILITY AND PAYMENT OF VENDOR'S AND VENDOR'S EMPLOYEES' TAXES
OF WHATEVER KIND, ARISING OUT OF THE PERFORMANCES IN THIS
CONTRACT. VENDOR AGREES TO COMPLY WITH ALL STATE AND FEDERAL
LAWS APPLICABLE TO ANY SUCH PERSONS, INCLUDING LAWS REGARDING
WAGES, TAXES, INSURANCE, AND WORKERS' COMPENSATION. THE
CUSTOMER AND/OR THE STATE SHALL NOT BE LIABLE TO THE VENDOR, ITS
EMPLOYEES, AGENTS, OR OTHERS FOR THE PAYMENT OF TAXES OR THE
PROVISION OF UNEMPLOYMENT INSURANCE AND/OR WORKERS'
COMPENSATION OR ANY BENEFIT AVAILABLE TO A STATE EMPLOYEE OR
EMPLOYEE OF ANOTHER GOVERNMENTAL ENTITY CUSTOMER.
2) VENDOR AGREES TO INDEMNIFY AND HOLD HARMLESS CUSTOMERS, THE
STATE OF TEXAS AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES,
CONTRACTORS, AND/OR ASSIGNEES FROM ANY AND ALL LIABILITY,
ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS,
ATTORNEYS' FEES, AND EXPENSES, RELATING TO TAX LIABILITY,
UNEMPLOYMENT INSURANCE AND/OR WORKERS' COMPENSATION IN ITS
PERFORMANCE UNDER THIS CONTRACT. VENDOR SHALL BE LIABLE TO PAY
ALL COSTS OF DEFENSE INCLUDING ATTORNEYS' FEES. THE DEFENSE
SHALL BE COORDINATED BY VENDOR WITH THE OFFICE OF THE ATTORNEY
GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY
LAWSUIT AND VENDOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT
FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE
ATTORNEY GENERAL. VENDOR AND THE CUSTOMER AGREE TO FURNISH
TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM.
C. Vendor Certifications
Vendor certifies on behalf of Vendor and its designated Order Fulfillers that they:
(i) have not given, offered to give, and do not intend to give at any time
hereafter any economic opportunity, future employment, gift, loan, gratuity,
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special discount, trip, favor, or service to a public servant in connection
with the Contract;
(ii) are not currently delinquent in the payment of any franchise tax owed the
State and are not ineligible to receive payment under §231.006 of the
Texas Family Code and acknowledge the Contract may be terminated and
payment withheld if this certification is inaccurate;
(iii) neither they, nor anyone acting for them, have violated the antitrust laws of
the United States or the State, nor communicated directly or indirectly to
any competitor or any other person engaged in such line of business for
the purpose of obtaining an unfair price advantage;
(iv) have not received payment from DIR or any of its employees for
participating in the preparation of the Contract;
(v) under Section 2155.004, Texas Government Code, the vendor certifies that
the individual or business entity named in this bid or contract is not
ineligible to receive the specified contract and acknowledges that this
contract may be terminated and payment withheld if this certification is
inaccurate;
(vi) to the best of their knowledge and belief, there are no suits or proceedings
pending or threatened against or affecting them, which if determined
adversely to them will have a material adverse effect on the ability to fulfill
their obligations under the Contract;
(vii) Vendor and its principals are not suspended or debarred from doing
business with the federal government as listed in the System for Award
Management(SAM) maintained by the General Services Administration;
(viii) as of the effective date of the Contract, are not listed in the prohibited
vendors list authorized by Executive Order#13224, "Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit,
or Support Terrorism", published by the United States Department of the
Treasury, Office of Foreign Assets Control;
(ix) that any payments due under this contract will be applied towards any
debt, including but not limited to delinquent taxes and child support that is
owed to the State of Texas;
(x) that they are in compliance Section 669.003, Texas Government Code,
relating to contracting with executive head of a state agency;
(xi) have identified all current or former, within the last five years, employees of
the State assigned to work on the DIR Contract 20% or more of their time
and has disclosed them to DIR and has disclosed or does not employ any
relative of a current or former state employee within two degrees of
consanguinity, and, if these facts change during the course of the Contract,
certify they shall disclose the name and other pertinent information about
the employment of current and former employees and their relatives within
two degrees of consanguinity;
(xii) represent and warrant that the provision of goods and services or other
performance under the Contract will not constitute an actual or potential
conflict of interest and certify that they will not reasonably create the
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appearance of impropriety, and, if these facts change during the course of
the Contract, certify they shall disclose the actual or potential conflict of
interest and any circumstances that create the appearance of impropriety;
(xiii) under Section 2155.006, Government Code, are not ineligible to receive
the specified contract and acknowledges that this contract may be
terminated and payment withheld if this certification is inaccurate;
(xiv) have complied with the Section 556.0055, Texas Government Code,
restriction on lobbying expenditures. In addition, Vendor acknowledges the
applicability of §2155.444 and §2155.4441, Texas Government Code, in
fulfilling the terms of the Contract; and
(xv) represent and warrant that the Customer's payment and their receipt of
appropriated or other funds under this Agreement are not prohibited by
Sections 556.005 or Section 556.008, Texas Government Code.
During the term of the Contract, Vendor shall, for itself and on behalf of its Order
Fulfillers, promptly disclose to DIR all changes that occur to the foregoing
certifications, representations and warranties. Vendor covenants to fully cooperate in
the development and execution of resulting documentation necessary to maintain an
accurate record of the certifications, representations and warranties.
In addition, Vendor understands and agrees that Vendor may be required to comply
with additional terms and conditions or certifications that an individual customer may
require due to state and federal law (e.g., privacy and security requirements).
D. Ability to Conduct Business in Texas
Vendor and its Order Fulfillers shall be authorized and validly existing under the laws
of its state of organization, and shall be authorized to do business in the State of
Texas.
E. Equal Opportunity Compliance
Vendor agrees to abide by all applicable laws, regulations, and executive orders
pertaining to equal employment opportunity, including federal laws and the laws of
the State in which its primary place of business is located. In accordance with such
laws, regulations, and executive orders, the Vendor agrees that no person in the
United States shall, on the grounds of race, color, religion, national origin, sex, age,
veteran status or handicap, be excluded from employment with or participation in, be
denied the benefits of, or be otherwise subjected to discrimination under any program
or activity performed by Vendor under the Contract. If Vendor is found to be not in
compliance with these requirements during the term of the Contract, Vendor agrees
to take appropriate steps to correct these deficiencies. Upon request, Vendor will
furnish information regarding its nondiscriminatory hiring and promotion policies, as
well as specific information on the composition of its principals and staff, including the
identification of minorities and women in management or other positions with
discretionary or decision-making authority.
F. Use of Subcontractors
If Vendor uses any subcontractors in the performance of this Contract, Vendor must
make a good faith effort in the submission of its Subcontracting Plan in accordance
with the State's Policy on Utilization of Historically Underutilized Businesses. A
revised Subcontracting Plan shall be required before Vendor can engage additional
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subcontractors in the performance of this Contract. Vendor shall remain solely
responsible for the performance of its obligations under the Contract.
C. Responsibility for Actions
1) Vendor is solely responsible for its actions and those of its agents, employees, or
subcontractors, and agrees that neither Vendor nor any of the foregoing has any
authority to act or speak on behalf of DIR or the State.
2) Vendor, for itself and on behalf of its subcontractors, shall report to DIR promptly
when the disclosures under the Certification Statement of Appendix A to the RFO
and/or Section 9.C. (xi) and (xii), Vendor Certifications of this Appendix A to the
Contract change. Vendor covenants to fully cooperate with DIR to update and
amend the Contract to accurately disclose employment of current or former State
employees and their relatives and/or the status of conflicts of interest.
H. Confidentiality
1) Vendor acknowledges that DIR and Customers that are state agencies are
government agencies subject to the Texas Public Information Act. Vendor also
acknowledges that DIR and Customers that are state agencies will comply with the
Public Information Act, and with all opinions of the Texas Attorney General's office
concerning this Act.
2) Under the terms of the Contract, DIR may provide Vendor with information
related to Customers. Vendor shall not re-sell or otherwise distribute or release
Customer information to any party in any manner.
Security of Premises, Equipment, Data and Personnel
Vendor and/or Order Fulfiller may, from time to time during the performance of the
Contract, have access to the personnel, premises, equipment, and other property,
including data, files and /or materials (collectively referred to as "Data") belonging to
the Customer. Vendor shall use their best efforts to preserve the safety, security,
and the integrity of the personnel, premises, equipment, Data and other property of
the Customer, in accordance with the instruction of the Customer. Vendor shall be
responsible for damage to Customer's equipment, workplace, and its contents when
such damage is caused by its employees or subcontractors. If a Vendor and/or
Order Fulfiller fails to comply with Customer's security requirements, then Customer
may immediately terminate its Purchase Order and related Service Agreement.
J. Background and/or Criminal History Investigation
Prior to commencement of any services, background and/or criminal history
investigation of the Vendor's employees and subcontractors who will be providing
services to the Customer under the Contract may be performed by certain
Customers having legislative authority to require such investigations. Should any
employee or subcontractor of the Vendor who will be providing services to the
Customer under the Contract not be acceptable to the Customer as a result of the
background and/or criminal history check, then Customer may immediately
terminate its Purchase Order and related Service Agreement or request
replacement of the employee or subcontractor in question.
K. Limitation of Liability
For any claim or cause of action arising under or related to the Contract: i) to the
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extent permitted by the Constitution and the laws of the State, none of the parties
shall be liable to the other for punitive, special, or consequential damages, even if it
is advised of the possibility of such damages; and ii) Vendor's liability for damages
of any kind to the Customer shall be limited to the total amount paid to Vendor under
the Contract during the twelve months immediately preceding the accrual of the
claim or cause of action. However, this limitation of Vendor's liability shall not apply
to claims of bodily injury; violation of intellectual property rights including but not
limited to patent, trademark, or copyright infringement; indemnification requirements
under this Contract; and violation of State or Federal law including but not limited to
disclosures of confidential information and any penalty of any kind lawfully assessed
as a result of such violation.
L. Overcharges
Vendor hereby assigns to DIR any and all of its claims for overcharges associated
with this contract which arise under the antitrust laws of the United States, 15
U.S.C.A. Section 1, et seq., and which arise under the antitrust laws of the State of
Texas, Tex. Bus. and Comm. Code Section 15.01, et seq.
M. Prohibited Conduct
Vendor represents and warrants that, to the best of its knowledge as of the date of
this certification, neither Vendor nor any Order Fulfiller, subcontractor, firm,
corporation, partnership, or institution represented by Vendor, nor anyone acting for
such Order Fulfiller, subcontractor, firm, corporation or institution has: (1) violated
the antitrust laws of the State of Texas under Texas Business & Commerce Code,
Chapter 15, or the federal antitrust laws; or (2) communicated its response to the
Request for Offer directly or indirectly to any competitor or any other person
engaged in such line of business during the procurement for the Contract.
N. Required Insurance Coverage
As a condition of this Contract with DIR, Vendor shall provide the listed insurance
coverage within 5 business days of execution of the Contract if the Vendor is
awarded services which require that Vendor's employees perform work at any
Customer premises and/or use employer vehicles to conduct work on behalf of
Customers. In addition, when engaged by a Customer to provide services on
Customer premises, the Vendor shall, at its own expense, secure and maintain the
insurance coverage specified herein, and shall provide proof of such insurance
coverage to the related Customer within five (5) business days following the
execution of the Purchase Order. Vendor may not begin performance under the
Contract and/or a Purchase Order until such proof of insurance coverage is
provided to, and approved by, DIR and the Customer. All required insurance must
be issued by companies that are A rated by A.M. Best, licensed in the State of
Texas, and authorized to provide the corresponding coverage. The Customer and
DIR will be named as Additional Insureds on all required coverage. Required
coverage must remain in effect through the term of the Contract and each Purchase
Order issued to Vendor there under. The minimum acceptable insurance provisions
are as follows:
1) Commercial General Liability
Commercial General Liability must include a combined single limit of $1,000,000 per
occurrence for coverage A, B, & C including products/completed operations, where
appropriate, with a separate aggregate limit of $2,000,000 [Medical Expense each
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person: $5,000; Personal Injury and Advertising Liability: $1,000,000; Products
/Completed Operations Aggregate Limit: $2,000,000; Damage to Premises Rented to
You: $50,000]. Agencies may require additional Umbrella/Excess Liability insurance.
The policy shall contain the following provisions:
a) Blanket contractual liability coverage for liability assumed under the Contract;
b) Independent Contractor coverage;
c) State of Texas, DIR and Customer listed as an additional insured;
d) 30-day Notice of Termination in favor of DIR and/or Customer; and
e) Waiver of Transfer Right of Recovery Against Others in favor of DIR and/or
Customer.
2) Workers' Compensation Insurance
WORKERS' COMPENSATION INSURANCE AND EMPLOYERS' LIABILITY
COVERAGE MUST INCLUDE LIMITS CONSISTENT WITH STATUTORY
BENEFITS OUTLINED IN THE TEXAS WORKERS' COMPENSATION ACT (ART.
8308-1.01 ET SEQ. TEX. REV. CIV. STAT) AND MINIMUM POLICY LIMITS FOR
EMPLOYERS' LIABILITY OF $1,000,000 BODILY INJURY PER ACCIDENT,
$1,000,000 BODILY INJURY DISEASE POLICY LIMIT AND $1,000,000 PER
DISEASE PER EMPLOYEE.
3) Business Automobile Liability Insurance
Business Automobile Liability Insurance must cover all owned, non-owned and hired
vehicles with a minimum combined single limit of$500,000 per occurrence for bodily
injury and property damage. Alternative acceptable limits are $250,000 bodily injury
per person, $500,000 bodily injury per occurrence and at least $100,000 property
damage liability per accident. The policy shall contain the following endorsements in
favor of DIR and/or Customer:
a)Waiver of Subrogation;
b) 30-day Notice of Termination; and
c)Additional Insured.
O. Use of State Property
Vendor is prohibited from using the Customer's equipment, the customer's location,
or any other resources of the Customer or the State for any purpose other than
performing services under this Agreement. For this purpose, equipment includes, but
is not limited to, copy machines, computers and telephones using State long distance
services. Any charges incurred by Vendor using the Customer's equipment for any
purpose other than performing services under this Agreement must be fully
reimbursed by Vendor to the Customer immediately upon demand by the Customer.
Such use shall constitute breach of contract and may result in termination of the
contract and other remedies available to DIR and Customer under the contract and
applicable law.
P. Immigration
Vendor shall comply with all requirements related to federal immigration laws and
regulations, to include but not be limited to, the Immigration and Reform Act of 1986,
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA")
and the Immigration Act of 1990 (8 U.S.C.1101, et seq.) regarding employment
verification and retention of verification forms for any individual(s) hired on or after the
effective date of the 1996 Act who will perform any labor or services under this
Contract. Nothing herein is intended to exclude compliance by Vendor with all other
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relevant federal immigration statutes and regulations promulgated pursuant thereto.
Q. Public Disclosure
No public disclosures or news releases pertaining to this contract shall be made
without prior written approval of DIR.
R. Product and/or Services Substitutions
Substitutions are not permitted without the written permission of DIR or Customer.
S. Secure Erasure of Hard Disk Managed Services Products and/or Services
Vendor agrees that all managed service products and/or services equipped with hard
disk drives (e.g., computers, telephones, printers, fax machines, scanners,
multifunction devices) shall have the capability to securely erase data written to the
hard drive prior to final disposition of such managed service products and/or services,
either at the end of the managed service product and/or services' useful life or at the
end of the Customer's managed service product and/or services' useful life or the
end of the related Customer Managed Services Agreement for such products and/or
services, in accordance with 1 TAC 202.
T. Deceptive Trade Practices; Unfair Business Practices
1) Vendor represents and warrants that neither Vendor nor any of its
Subcontractors has been (i) found liable in any administrative hearing, litigation or
other proceeding of Deceptive Trade Practices violations as defined under Chapter
17, Texas Business & Commerce Code, or (ii) has outstanding allegations of any
Deceptive Trade Practice pending in any administrative hearing, litigation or other
proceeding.
• 2) Vendor certifies that it has no officers who have served as officers of other
entities who (i) have been found liable in any administrative hearing, litigation or other
proceeding of Deceptive Trade Practices violations or (ii) have outstanding
allegations of any Deceptive Trade Practice pending in any administrative hearing,
litigation or other proceeding.
U. Drug Free Workplace Policy
The Vendor shall comply with the applicable provisions of the Drug-Free Work Place
Act of 1988 (Public Law 100-690, Title V, Subtitle D; 41 U.S.C. 701 et seq.) and
maintain a drug-free work environment; and the final rule, government-wide
requirements for drug-free work place (grants), issued by the Office of Management
and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to
implement the provisions of the Drug-Free Work Place Act of 1988 is incorporated by
reference and Vendor shall comply with the relevant provisions thereof, including any
amendments to the final rule that may hereafter be issued.
V. Accessibility of Public Information
1) Pursuant to S.B. 1368 of the 83rd Texas Legislature, Regular Session, Vendor is
required to make any information created or exchanged with the State pursuant to
this Contract, and not otherwise excepted from disclosure under the Texas Public
Information Act, available in a format that is accessible by the public at no additional
charge to the State.
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2) Each State government entity should supplement the provision set forth in
Subsection A, above, with the additional terms agreed upon by the parties regarding
the specific format by which the Vendor is required to make the information
accessible by the public.
W. Vendor Reporting Responsibilities
• Vendor shall comply with Subtitle C, Title 5, Business & Commerce Code, Chapter 109 as added by H
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10. CONTRACT ENFORCEMENT
A. Enforcement of Contract and Dispute Resolution
1)Vendor and DIR agree to the following: (i) a party's failure to require strict
performance of any provision of the Contract shall not waive or diminish that party's
right thereafter to demand strict compliance with that or any other provision, (ii) for
disputes not resolved in the normal course of business, the dispute resolution process
provided for in Chapter 2260, Texas Government Code, shall be used, and (iii)
actions or proceedings arising from the Contract shall be heard in a state court of
competent jurisdiction in Travis County, Texas.
2) Disputes arising between a Customer and the Vendor shall be resolved in
accordance with the dispute resolution process of the Customer that is not
inconsistent with subparagraph A.1 above. DIR shall not be a party to any such
dispute unless DIR, Customer, and Vendor agree in writing.
3) State agencies are required by rule (34 TAC §20.108(b)) to report vendor
performance through the Vendor Performance Tracking System (VPTS) on every
purchase over $25,000.
B. Termination
1) Termination for Non-Appropriation
a) Termination for Non-Appropriation by Customer
Customer may terminate Purchase Orders if funds sufficient to pay its obligations
under the Contract are not appropriated: i) by the governing body on behalf of
local governments; ii) by the Texas legislature on behalf of state agencies; or iii)
by budget execution authority provisioned to the Governor or the Legislative
Budget Board as provided in Chapter 317, Texas Government Code. In the
event of non-appropriation, Vendor and/or Order Fulfiller will be provided ten (10)
calendar days written notice of intent to terminate. Notwithstanding the foregoing,
if a Customer issues a Purchase Order and has accepted delivery of the
services, they are obligated to pay for the services or they may discontinue using
services under any return provisions that Vendor offers. In the event of such
termination, the Customer will not be considered to be in default or breach under
this Contract, nor shall it be liable for any further payments ordinarily due under
this Contract, nor shall it be liable for any damages or any other amounts which
are caused by or associated with such termination.
b) Termination for Non-Appropriation by DIR
DIR may terminate Contract if funds sufficient to pay its obligations under the
Contract are not appropriated: by the i) Texas legislature or ii) by budget
execution authority provisioned to the Governor or the Legislative Budget Board
as provided in Chapter 317, Texas Government Code. In the event of non-
appropriation, Vendor and/or Order Fulfiller will be provided thirty (30) calendar
days written notice of intent to terminate. In the event of such termination, DIR
will not be considered to be in default or breach under this Contract, nor shall it
be liable for any further payments ordinarily due under this Contract, nor shall it
be liable for any damages or any other amounts which are caused by or
associated with such termination.
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2) Absolute Right
DIR shall have the absolute right to terminate the Contract without recourse in the
event that: i) Vendor becomes listed on the prohibited vendors list authorized by
Executive Order #13224, "Blocking Property and Prohibiting Transactions with
Persons Who Commit, Threaten to Commit, or Support Terrorism", published by the
United States Department of the Treasury, Office of Foreign Assets Control; ii)
Vendor becomes suspended or debarred from doing business with the federal
government as listed in the System for Award Management(SAM) maintained by the
General Services Administration; or (iii) Vendor is found by DIR to be ineligible to
hold this Contract under Subsection (b) of Section 2155.006, Texas Government
Code. Vendor shall be provided written notice in accordance with Section 10.A,
Notices, of intent to terminate.
3) Termination for Convenience
DIR may terminate the Contract, in whole or in part, by giving the other party thirty
(30) calendar days written notice. A Customer may terminate a Purchase Order by
giving the other party thirty (30)calendar days written notice.
4) Termination for Cause
a) Contract
Either DIR or Vendor may issue a written notice of default to the other upon the
occurrence of a material breach of any covenant, warranty or provision of the
Contract, upon the following preconditions: first, the parties must comply with the
requirements of Chapter 2260, Texas Government Code in an attempt to resolve
a dispute; second, after complying with Chapter 2260, Texas Government Code,
and the dispute remains unresolved, then the non-defaulting party shall give the
defaulting party thirty (30) calendar days from receipt of notice to cure said
default. If the defaulting party fails to cure said default within the timeframe
allowed, the non-defaulting party may, at its option and in addition to any other
remedies it may have available, cancel and terminate the Contract. Customers
purchasing products or services under the Contract have no power to terminate
the Contract for default.
b) Purchase Order
Customer or Order Fulfiller may terminate a Purchase Order upon the
occurrence of a material breach of any term or condition: (i) of the Contract, or(ii)
included in the Purchase Order in accordance with Section 9.B.2 above, upon
the following preconditions: first, the parties must comply with the requirements
of Chapter 2260, Texas Government Code, in an attempt to resolve a dispute;
second, after complying with Chapter 2260, Texas Government Code, and the
dispute remains unresolved, then the non-defaulting party shall give the
defaulting party thirty (30) calendar days from receipt of notice to cure said
default. If the defaulting party fails to cure said default within the timeframe
allowed, the non-defaulting party may, at its option and in addition to any other
remedies it may have available, cancel and terminate the Purchase Order.
5) Customer Rights Under Termination
In the event the Contract expires or is terminated for any reason, a Customer shall
retain its rights under the Contract and the Purchase Order issued prior to the
termination or expiration of the Contract. The Purchase Order survives the expiration
or termination of the Contract for its then effective term.
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6) Vendor or Order Fulfiller Rights Under Termination
In the event a Purchase Order expires or is terminated, a Customer shall pay: 1) all
amounts due for products or services ordered prior to the effective termination date
and ultimately accepted, and 2) any applicable early termination fees agreed to in
such Purchase Order.
C. Force Majeure
DIR, Customer, or Vendor may be excused from performance under the Contract for
any period when performance is prevented as the result of an act of God, strike, war,
civil disturbance, epidemic, or court order, provided that the party experiencing the
event of Force Majeure has prudently and promptly acted to take any and all steps
that are within the party's control to ensure performance and to shorten the duration
of the event of Force Majeure. The party suffering an event of Force Majeure shall
provide notice of the event to the other parties when commercially reasonable.
Subject to this provision, such non-performance shall not be deemed a default or a
ground for termination. However, a Customer may terminate a Purchase Order if it is
determined by the Customer that Vendor will not be able to deliver services in a
timely manner to meet the business needs of the Customer.
11. NOTIFICATION
A. Notices
All notices, demands, designations, certificates, requests, offers, consents, approvals
and other instruments given pursuant to the Contract shall be in writing and shall be
validly given on: (i) the date of delivery if delivered by email, facsimile transmission,
mailed by registered or certified mail, or hand delivered, or (ii) three business days
after being mailed via United States Postal Service. All notices under the Contract
shall be sent to a party at the respective address indicated in Section 6 of the
Contract or to such other address as such party shall have notified the other party in
writing.
B. Handling of Written Complaints
In addition to other remedies contained in the Contract, a person contracting with DIR
may direct their written complaints to the following office:
Public Information Office
Department of Information Resources
Attn: Public Information Officer
300 W. 15`h Street, Suite 1300
Austin, Texas 78701
(512) 475-4759, facsimile
12. CAPTION-
The captions contained in the Contract, Appendices, and its Exhibits are intended for
convenience and reference purposes only and shall in no way be deemed to define or
limit any provision thereof.