Contract Terms, Conditions and Affirmations

Rev. 01.07.22

ATTACHMENT B

CONTRACT TERMS, CONDITIONS AND AFFIRMATIONS

1. Defined Terms: As used in this Attachment B, the following capitalized terms have the meanings specified below.

(a) Authorized User shall mean (i) TEA, (ii) any Texas Local Education Agency (“LEA”), school district staff member, private school,

private school staff member, teacher, tutor, parent, student and/or resident (whether currently in-state or temporarily outside

the state), and (iii) any other third-party and its or their staff or personnel serving or acting on behalf of any of the Authorized

Users named in (i) or (ii) above.

(b) Cloud Computing means, in accordance with Section 2054.0593 of the Texas Government Code, a model for enabling

ubiquitous, convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks,

servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or

service provider interaction.

(c) Commercial shall mean selling or reselling (whether directly or indirectly, via outright sale, license or otherwise) for financial

consideration, access to the Contractor Materials or the Technology Platform.

(d) Comptroller means the Texas Comptroller of Public Accounts.

(e) Contract means the document entered into between TEA and Contractor, including all attachments (for the avoidance of doubt,

including, but not limited to, the Standard TEA Terms and Conditions and any Special Terms and Conditions), annexes,

exhibits, schedules, amendments, renewals and extensions of or to the Contract.

(f) Contract Manager means the respective person(s) representing TEA or Contractor, as indicated by the Contract, for the

purposes of administering the Contract Project.

(g) Contract Project means the purpose intended to be achieved through the Contract.

(h) Contractor means the party to this Contract who is providing the contracted goods or services to TEA, provided that, prior to

contract award, Contractor means the person or entity who provides a Response (i.e., a “Respondent”).

(i) Contractor Materials means, collectively, the pre-existing, complete, standalone materials or products of Contractor marketed

and offered by Contractor to third parties prior to provision to TEA that Contractor can document as such, and all Intellectual

Property Rights embodied therein, and any derivatives thereof other than those created by TEA, that are created during the

term of this Contract, and includes any Third Party Materials (as defined below).

(j) EIR means electronic and information resources as defined in 1 TAC (as defined below) § 206.1, as may be amended from

time to time.

(k) FERPA means the Family Educational Rights and Privacy Act (20 U.S.C. § 1232g; 34 CFR Part 99), the regulations issued

pursuant thereto, and any amendments thereto.

(l) HSP means a HUB subcontracting plan.

(m) HUB means an entity certified by the Comptroller as a Historically Underutilized Business as defined in

Texas Government

Code Section 2161.001.

(n) Intellectual Property Rights means the legal rights or interests evidenced by or embodied in: (i) any idea, design, concept,

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, social media pages and associated

handles and hashtags; and (v) any other similar rights. The Intellectual Property Rights of a party include all legal rights or

interests that the party may have acquired by assignment or license with the right to grant sublicenses.

(o) Non-Commercial means any activity other than Commercial activities.

(p) Personally Identifiable Information means information that alone or in conjunction with other information identifies an individual,

including, but not limited to, an individual’s: name; Social Security number; date of birth; driver’s license number; government-

issued identification number; mother’s maiden name; unique biometric data (including, but not limited to, the individual’s

fingerprint, voice print, retina or iris image, or a record of hand or face geometry); unique electronic identification number;

address or routing code; telecommunication access device; account number or credit or debit card number in combination with

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any required security code, access code, or password that would permit access to an individual’s financial account; and/or

identity and relates to the physical or mental health or condition of the individual, the provision of health care to the individual;

or payment for the provision of health care to the individual.

With regard to information relating to students, the term also includes:

(i) The student’s name;

(ii) The name of the student’s parents or other family members;

(iii) The address of the student’s parent or other family members;

(iv) A personal identifier, such as the student's social security number, student number, or biometric record

;

(v) Other indirect identifiers, such as the student's date of birth, place of birth, and mother's maiden name;

(vi) Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable

person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the

student with reasonable certainty; or

(vii) Information requested by a person who the educational agency or institution reasonably believes knows the identity of the

student to whom the education record relates.

(q) Protected Data means the data, in electronic and physical form, that

(i) is collected by and through any Technology Platform provided or operated by Contractor,

(ii) may be input by Authorized Users, and/or

(iii) is generated by Authorized Users or their devices by interacting with any Technology Platform provided by or through

Contractor,

including, without limitation, Personally Identifiable Information pertaining to students as well as to their parents or legal

guardian and all grades, scorings, rankings, percentage comparisons, answers and responses to questions and assignments,

and “educational records” as that term is defined by FERPA. Protected Data shall also include all versions and portions of any

part of the Protected Data, all files and databases containing such Protected Data, as well as any information derived or

generated therefrom through database hygiene, database management or otherwise. As between TEA and Contractor,

Protected Data shall be deemed to be owned by TEA, provided that Protected Data applicable to Authorized Users other than

TEA, shall be owned by the applicable Authorized User to whom it applies, unless TEA acquires ownership thereof in another

agreement.

(r) Response is what a Contractor submits in response to the following specific competitive solicitations: an invitation for bids; a

request for offers; a request for proposals; a request for qualifications; or a statement of work solicitation under a Department

of Information Resources contract.

(s) Service Credit means any applicable credit or any refund for inadequate performance of a Technology Platform that could be

construed as liquidated damages and has been incorporated into this Contract as a valid pre-estimate of damages TEA will

sustain which will not be capable of precise determination; such credit is therefore considered to be agreed-upon costs incurred

as a result of Contractor’s failure to meet the contracted-for requirements, and is not a penalty.

(t) Special Terms and Conditions means any provisions contained in an Attachment to this Contract labeled “Special Terms and

Conditions of this Contract.”

(u) Standard TEA Terms and Conditions or Standard Terms means the provisions contained in this Attachment B.

(v) State means the State of Texas.

(w) TAC means the Texas Administrative Code.

(x) TEA means the Texas Education Agency.

(y) TEA Confidential Information means information that is confidential under the provisions of the FERPA, the Texas Public

Information Act, or other applicable State or federal laws, that is provided to Contractor by TEA, that Contractor collects on

behalf of TEA, that Contractor obtains in connection with the provision of goods and services hereunder and/or that is otherwise

designated by TEA as non-public TEA confidential information including, without limitation, Protected Data. Examples of TEA

Confidential Information include: (i) Personally Identifiable Information (ii) criminal background checks; (iii) an e-mail address

of a member of the public, unless the individual waives his or her right to e-mail confidentiality by affirmatively consenting to

disclose the e-mail address or the individual seeks to contract or has a contract with TEA; (iv) certain personnel information

concerning a TEA employee including, but not limited to, home address, home telephone number, emergency contact

information, and family member information (if the employee elects in writing to keep this information confidential), personal

medical information, and information reflecting personal financial decisions such as the employee’s choice of insurance carrier

or choice to contribute money to a 401(k); (v) information about security vulnerabilities in TEA systems; (vi) dataset extracted

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from confidential sources (e.g., SAS data sets); and (vii) Student IDs (FERPA protected) and some Government IDs. TEA

Confidential Information also includes, without limitation, all cookies and metadata associated with TEA’s webpages and online

content.

(z) TEA Trademarks License has the meaning assigned to such term in Clause 18 of this Attachment B.

(aa) Technology Platform means the software and infrastructure (including but not limited to Contractor’s software application or

applications and any third-party or other software, and all new versions, updates, revisions, improvements, and modifications)

in a hosted environment provided by Contractor to which TEA and/or Any Authorized User is being granted access under this

Contract via a web site, designated IP address(es), or APIs, as described more fully in Attachment G to the Contract.

(bb) Term means the period of time between the execution of the Contract and the expiration of the Contract.

(cc) Third-Party Materials means any licensed third-party materials, and derivatives thereof, provided by Contractor to TEA.

(dd) WCAG means web content accessibility guidelines, version 2.1 of June 5, 2018, from the World Wide Web Consortium, which

are incorporated herein by reference, as amended.

(ee) Working Day means any day, Monday-Friday, other than a national holiday or state holiday, each as defined by Texas

Government Code, §662.003(a), the Friday after Thanksgiving Day, December 24

, December 26th and any other day that the

TEA is closed. Use in these Standard Terms of the term “day” or “calendar day” rather than “working day” shall mean a calendar

day.

(ff) Works means all tangible or intangible material, products, ideas, documents or works of authorship prepared or created by

Contractor for or on behalf of TEA at any time after the beginning date of the Contract. “Works” includes but is not limited to

computer software, data, metadata, source code, concepts, systems, methodologies, information, images, illustrations,

designs, graphics, drawings, educational materials, assessment forms, testing materials, logos, trademarks, patentable

materials, etc. “Works” excludes any Contractor Materials, as defined above.

2. Excess Obligations Prohibited: This Contract is subject to termination or cancellation, without penalty to TEA, either in whole or in

part, subject to the availability of State funds. TEA is a State agency whose authority and appropriations are subject to actions of the

Texas Legislature. If TEA becomes subject to a legislative change, revocation of statutory authority, or lack of appropriated funds

that would render either TEA’s or Contractor’s delivery or performance under the Contract impossible or unnecessary, the Contract

will be terminated or cancelled and be deemed null and void. In the event of a termination or cancellation under this provision, TEA

will not be liable to Contractor for any damages that arise out of or are related to such termination or cancellation, and TEA will not

be required to give prior notice of such termination or cancellation. Termination under this section shall not affect TEA's right to use

previously paid licensed software through the term of each such license, or any maintenance or support paid prior to such termination.

3. Indemnification: For the avoidance of doubt, TEA shall not indemnify Contractor or any other entity under the Contract because

TEA is prohibited by law from indemnifying third parties.

General

CONTRACTOR SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE STATE AND TEA, AND/OR THEIR OFFICERS,

AGENTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM AND AGAINST

ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND

EXPENSES ARISING OUT OF, OR RELATING TO ANY ACTS OR OMISSIONS OF CONTRACTOR 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 CONTRACTOR WITH THE OFFICE OF THE TEXAS ATTORNEY GENERAL WHEN TEXAS

STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND CONTRACTOR MAY NOT AGREE TO ANY

SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE TEXAS ATTORNEY

GENERAL. CONTRACTOR AND TEA AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH

CLAIM.

Intellectual Property

CONTRACTOR SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE STATE AND TEA, AND/OR THEIR OFFICERS,

AGENTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM AND AGAINST

ANY AND ALL LIABILITY, ACTIONS, CLAIMS, VIOLATIONS, MISAPPROPRIATIONS OR INFRINGEMENT OF ANY PATENT,

TRADEMARK, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS AND/OR OTHER INTANGIBLE

PROPERTY, PUBLICITY OR PRIVACY RIGHTS, ARISING OUT OF OR RELATING TO: (A) THE PERFORMANCE OR ACTIONS

OF CONTRACTOR PURSUANT TO THIS CONTRACT; (B) ANY DELIVERABLE, WORKS, DERIVATIVES OF SUCH

DELIVERABLES AND WORKS, CONFIGURED SERVICE OR OTHER SERVICE PROVIDED HEREUNDER; AND/OR (C) TEA’S

AND/OR CONTRACTOR’S USE OF OR ACQUISITION OF ANY REQUESTED SERVICES OR OTHER ITEMS PROVIDED TO

TEA BY CONTRACTOR OR OTHERWISE TO WHICH TEA HAS ACCESS AS A RESULT OF CONTRACTOR’S PERFORMANCE

UNDER THE CONTRACT. CONTRACTOR AND TEA AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF

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ANY SUCH CLAIM. CONTRACTOR SHALL BE LIABLE TO PAY ALL RELATED COSTS, ATTORNEYS’ FEES, AND EXPENSES.

THE DEFENSE SHALL BE COORDINATED BY CONTRACTOR WITH THE OFFICE OF THE TEXAS ATTORNEY GENERAL

WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND CONTRACTOR MAY NOT AGREE TO

ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE TEXAS ATTORNEY

GENERAL. IN ADDITION, CONTRACTOR WILL REIMBURSE TEA AND THE STATE FOR ANY CLAIMS, DAMAGES, COSTS,

EXPENSES OR OTHER AMOUNTS, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ FEES AND COURT COSTS, ARISING

FROM ANY SUCH CLAIM. IF TEA DETERMINES THAT A CONFLICT EXISTS BETWEEN ITS INTERESTS AND THOSE OF

CONTRACTOR OR IF TEA IS REQUIRED BY APPLICABLE LAW TO SELECT SEPARATE COUNSEL, TEA WILL BE PERMITTED

TO SELECT SEPARATE COUNSEL AND CONTRACTOR WILL PAY ALL REASONABLE COSTS OF TEA’S COUNSEL.

Taxes/Workers’ Compensation/Unemployment Insurance – Including Indemnity

CONTRACTOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF THIS CONTRACT, CONTRACTOR

SHALL BE ENTIRELY RESPONSIBLE FOR THE LIABILITY AND PAYMENT OF CONTRACTOR’S AND CONTRACTOR’S

EMPLOYEES’ TAXES OF WHATEVER KIND, ARISING OUT OF THE PERFORMANCES IN THIS CONTRACT. CONTRACTOR

AGREES TO COMPLY WITH ALL STATE AND FEDERAL LAWS APPLICABLE TO ANY SUCH PERSONS, INCLUDING LAWS

REGARDING WAGES, TAXES, INSURANCE, AND WORKERS’ COMPENSATION. TEA AND/OR THE STATE SHALL NOT BE

LIABLE TO CONTRACTOR, 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.

CONTRACTOR AGREES TO INDEMNIFY AND HOLD HARMLESS TEA, THE STATE 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, ARISING OUT OF OR RELATING TO 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 IN ITS

PERFORMANCE UNDER THIS CONTRACT. CONTRACTOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING

ATTORNEYS’ FEES. THE DEFENSE SHALL BE COORDINATED BY CONTRACTOR WITH THE OFFICE OF THE ATTORNEY

GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND CONTRACTOR MAY NOT

AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE ATTORNEY

GENERAL. CONTRACTOR AND TEA AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH

CLAIM.

4. Signature Authority and Binding Effect: By submitting the Response, Contractor represents and warrants that the individual

submitting this document and the documents made part of this Response is authorized to sign such documents on behalf of the

Contractor. By executing the Contract, Contractor represents and warrants that the individual signing the Contract and any

documents made part of the Contract is authorized to sign such documents on behalf of the Contractor and to bind the Contractor

under the Contract. The Contract shall be binding upon and shall inure to the benefit of TEA and Contractor and to their respective

permitted successors, and assigns.

5. Responsibility for Actions and Limitation on Authority: Contractor is solely responsible for its actions and those of its agents,

employees or subcontractors. Contractor and its agents, employees or subcontractors shall have no authority to act for or on behalf

of TEA or the State except as expressly provided for in the Contract; no other authority, power or use is granted or implied. Contractor

and its agents, employees and subcontractors may not incur any debt, obligation, expenses, or liability of any kind on behalf of TEA

or the State.

6. Final Expression, and Superseding Document: The Contract represents the final and complete expression of the terms of

agreement between the parties. The Contract supersedes any previous understandings or negotiations between the parties and any

documents referenced via URLs, “click-through” license agreements, end-user licenses, subscription agreements, terms of use or

other terms that may be presented on, through or by the Technology Platform provided or operated by Contractor (whether presented

before or after contract signing) (collectively, “Supplemental Terms”). Such Supplemental Terms shall have no force and effect with

respect to the Parties or any Authorized Users except with respect to the Creative Commons and open source licenses specified in

Attachment E to the Contract. Contractor hereby represents and warrants that no Creative Commons licenses or open source

licenses are applicable to any Works or Contractor Materials except as provided in Attachment E to the Contract, and if no Attachment

E is attached to the Contract, no such Supplemental Terms apply to this Contract. Subject to the foregoing, any representations, oral

statements, promises or warranties that differ from the Contract shall have no force or effect. The Contract may be modified, amended

or extended as provided in Clause 7 or Clause 30 below.

7. Amendments: All modifications, amendments or extensions to this Contract are subject to Clause 2 of these Standard TEA Terms

and Conditions, will be executed on standard TEA forms, and will follow TEA’s internal contracting process. All modifications,

amendments or extensions will be initiated by TEA Contract and Purchasing staff. A modification, amendment, or extension to this

Contract will become effective on the date of signature by TEA or the effective date shown on such, modification, amendment or

extension document, whichever is later. All modifications, amendments, or extensions (other than a renewal as provided for in the

Contract) must be in writing and signed by both parties. Notwithstanding the foregoing, TEA may make technical amendments in

order to correct manifest errors in the Contract, provided such technical amendments would not have a materially adverse effect on

Contractor and that Contractor does not contest in writing the amendments within 30 days after TEA provides written notice to

Contractor of such technical amendments.

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(a) Written amendments are required for the following Contract changes:

i. Any revision which would result in the need for additional funding;

ii. Revisions or additions to the scope of work, deliverables, or objectives of the Contract, other than revisions permitted

by paragraph (b) of this Clause 7;

iii. Any extension of the period of the Contract other than a renewal as provided for in the Contract;

iv. Any reduction of funds or reduction in the scope of work, other than revisions permitted by paragraph (b) of this Clause

v. Any change to the Standard TEA Terms and Conditions; and

(b) Informal budget revisions signed by Contract Managers shall be permitted for the following contract changes:

i. Reallocating funds among existing contract tasks/deliverables (up to 25% increase/decrease per specified

task/deliverable);

ii. Reallocating funds across TEA fiscal years and State bienniums; and

iii. Revisions to the scope of work consisting of a reduction to specified tasks that would decrease the total contract value

(up to 25% decrease in total contract value).

Updates to Standard TEA Terms and Conditions

TEA updates the TEA Standard Terms and Conditions on a regular basis to account for changes to laws and evolving agency needs.

Contractor agrees that updated Standard TEA Terms and Conditions may be included in any amendment, renewal, or other

document altering this Contract and that any negotiations regarding such updated Standard TEA Terms and Conditions will be limited

to terms that have changed since the most recent Standard TEA Terms and Conditions attached to the Contract.

8. Subcontracting: Contractor may not subcontract any or all of the work and/or obligations due under the Contract without prior written

approval of TEA. Subcontracts, if any, entered into by the Contractor shall be in writing and be subject to the requirements of the

Contract. Should Contractor subcontract any of the services required in the Contract, Contractor expressly understands and

acknowledges that in entering into such subcontract(s), TEA is in no manner liable to any subcontractor(s) of Contractor. In no event

shall this provision relieve Contractor of the responsibility for ensuring that the services performed under all subcontracts are rendered

in compliance with the Contract.

9. Personnel Assignments, Transfers, HUB Subcontracting, Substitutions and Reporting: TEA reserves the right to request

changes in personnel assigned to the project. The TEA Contract Manager must pre-approve any changes in key personnel

throughout the contract term. Pursuant to 34 TAC §201.281-298 and Texas Government Code, Chapter 2161, Contractor shall

maintain business records documenting compliance with the HSP and shall submit compliance reports to TEA. Any changes to the

HSP must be approved by TEA HUB Coordinator before subcontracting changes are initiated. Substitutions are not permitted without

written approval of TEA Contract Manager. If Contractor subcontracts any of the work without prior authorization and without

complying with this Clause, Contractor is deemed to have breached the Contract and is subject to any remedial actions provided by

Government Code, Chapter 2161, and other applicable State law. Contractor will be responsible for maintaining business records

documenting compliance with HUB Program requirements. Contractor shall submit a Progress Assessment Report (PAR) monthly

documenting all subcontractor payments made in the preceding month. Submission of the PAR is a condition for payment. Contractor

shall also report all 2

and 3

Tier subcontracting in the monthly PAR. PAR’s are due no later than the 10

day of the following

month. The PAR is required to be submitted monthly, even if no reportable activity occurred for the month. Reports shall be submitted

electronically to the [email protected]v

. In addition to the PAR, Contractor shall also create and maintain a monitoring report

to document that it is diligently monitoring and enforcing subcontractor compliance with the Contract. When requested by TEA,

Contractor shall furnish TEA with satisfactory proof of its compliance with this provision.

10. Interpretation: The terms, conditions, and assurances, which are stated in the competitive solicitation, in response to which

Contractor submitted a Response, are incorporated herein by reference. Contractor’s Response that was furnished to TEA in

response to the competitive solicitation is incorporated herein by reference. In the event of a conflict between or among the various

documents comprising the Contract, the order of precedence set forth in the Contract shall apply. Any alterations, additions, or

deletions to the terms of this Contract which are required by changes in federal or State law or regulations are automatically

incorporated into this Contract without written amendment hereto and shall become effective on the date designated by such law or

by regulation.

11. Severability: In the event that any provision of this Contract is later determined to be invalid, void, or unenforceable, the invalid

provision will be deemed severable and stricken from the Contract as if it had never been incorporated herein. The remaining terms,

provisions, covenants, and conditions of this Contract shall remain in full force and effect, and shall in no way be affected, impaired,

or invalidated.

12. Proof of Financial Stability, Records Retention and the Right to Audit: TEA may require Contractor to provide proof of financial

stability prior to or at any time during the Contract term.

Contractor shall maintain and retain all records relating to the performance of the Contract, including supporting fiscal documents

adequate to ensure that claims for Contract funds are in accordance with applicable State requirements. These records will be

maintained and retained by Contractor for a period of seven years after (a) the Contract expiration date or (b) the resolution of all

audit, claim, and litigation matters related to the Contract, whichever is later.

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13. State Auditor’s Right to Audit: Pursuant to Section 2262.154 of the Texas Government Code, the State auditor may conduct an

audit or investigation of Contractor or any other entity or person receiving funds from the State directly under this Contract or indirectly

through a subcontract under this Contract. The acceptance of funds by Contractor or any other entity or person directly under this

Contract or indirectly through a subcontract under this Contract acts as acceptance of the authority of the State auditor, under the

direction of the legislative audit committee to conduct an audit or investigation in connection with those funds. Under the direction of

the legislative audit committee, Contractor or other entity that is the subject of an audit or investigation by the State auditor must

provide the State auditor with access to any information the State auditor considers relevant to the investigation or audit. Contractor

will ensure that this Clause concerning the authority to audit funds received indirectly by subcontractors through the Contract and

the requirement to cooperate is included in any subcontract it awards.

Contractor further agrees that acceptance of funds under this Contract acts as acceptance for TEA to conduct an audit or investigation

in connection with those funds. Contractor, subcontractors, and any entities receiving funds through this Contract shall cooperate

fully with TEA in the conduct of the audit or investigation, including making available at reasonable times and upon reasonable notice,

and for a reasonable period, work papers, reports, books, records, supporting documents and any other records kept current by them

pertaining to the Contract for purposes of inspecting, monitoring, auditing or evaluating by TEA and the State of Texas.

14. Technology Platform (SaaS) License

(a) License to Access and Use Technology Platform Contractor hereby grants to TEA, exercisable by TEA and by and through

its Authorized Users, a nonexclusive, royalty-free, irrevocable, transferable and sublicensable (pursuant to Clause 15) right and

license throughout the world during the Term and such additional periods, if any, as Contractor is required to provide any

Technology Platform, to: (i) access and use the Technology Platform, including in operation with other software, hardware,

systems, networks, and Technology Platform, for TEA’s permitted uses; (ii) generate, print, copy, upload, download, store and

otherwise process all graphical user interfaces, audio, visual, digital, and other output, displays, and content as may result from

any access to or use of the Technology Platform; (iii) prepare, reproduce, print, download and use as many copies of the

documentation as may be necessary or useful for any use of the Technology Platform under this Contract; (iv) access and use

the Technology Platform for all such non-production uses and applications as may be necessary or useful for the effective use

of the Technology Platform as permitted hereunder, including for purposes of analysis, development, configuration, integration,

testing, training, maintenance, support, and repair, which access and use will be without charge and shall not be included for

any purpose in any calculation of TEA’s or its Authorized Users’ use of the Technology Platform, including for purposes of

assessing any fees or other consideration payable to Contractor or determining any excess use of the Technology Platform as

described in an order; and (v) perform, display, execute, reproduce, and modify (including to create improvements and

derivative works of), and distribute and otherwise make available to Authorized Users, any Technology Platform solely to the

extent necessary to access or use the Technology Platform in accordance with the terms and conditions of this Contract.

(b) Technology Platform Service Levels and Service Credits: Contractor shall make the Technology Platform available to

Authorized Users in accordance with Attachment F to the Contract and provide the Service Credits set forth in Attachment F to

the Contract for any failure to meet the agreed upon service levels.

(c) Technical Support Service Levels: Contractor shall provide Authorized Users with technical support in accordance with

Attachment F to the Contract.

(d) No Indemnities for Authorized Users: The Parties hereby acknowledge and agree that since (i) Contractor controls the

means of access to the Technology Platform, and (ii) because TEA is prohibited by law from indemnifying third parties, TEA

shall have no responsibility or liability for: (1) verifying or enforcing whether an Authorized User is a bona fide Authorized User;

(2) creating, distributing or enforcing login credentials; (3) controlling whether or not access to the Technology Platform is limited

to Authorized Users; (4) enforcing or controlling Authorized Users’ use of the Contractor Materials or the Technology Platform;

(5) limiting Authorized Users’ use of the Contractor Materials and the Technology Platform to Non-Commercial uses; (6) use of

Contractor Materials, or the Technology Platform by Authorized Users; (7) any other failures of, or actions by, any Authorized

User in connection with this Contract, other than the willful actions of TEA or its employees; or (8) adherence to any Technology

Platform user agreement provisions.

15. Intellectual Property

(a) Ownership and License to Works Components

Contractor agrees that all Works (as defined above) are, upon creation, works made for hire and the sole property of TEA.

Contractor and its officers, directors, employees, agents, representatives and subcontractors shall have no rights therein. If the

Works are, under applicable law, not considered works made for hire, Contractor hereby assigns to TEA all worldwide

ownership of all rights, including, but not limited to, the Intellectual Property Rights, in the Works, all works based upon, derived

from or incorporating the Works, all income, royalties, damages, claims and payments now or hereafter due or payable with

respect thereto, all causes of action, either in law or in equity for past, present, or future infringement based on the Intellectual

Property Rights, and all rights corresponding to the foregoing. Contractor agrees to execute all papers and to perform such

other actions, as TEA may deem necessary to secure for TEA or its designee the rights herein assigned, without the necessity

of any further consideration, and TEA can obtain and hold in its own name all such rights to the Works. Contractor agrees to

maintain written agreements with all officers, directors, employees, agents, representatives and subcontractors engaged by

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Contractor for the Contract Project, granting Contractor rights sufficient to support the performance and grant of rights to TEA

by Contractor. Copies of such agreements shall be provided to TEA promptly upon request.

In the event that Contractor has any rights in and to the Works that cannot be assigned to TEA, Contractor hereby grants to

TEA an exclusive, worldwide, royalty-free, irrevocable, and perpetual license to directly and indirectly reproduce, distribute,

modify, publicly perform and publicly display the Works, prepare derivative works to the Works, and to make, have made, use,

sell and offer for sale any products developed by practicing such license rights, and to otherwise use such license rights, with

the right to sublicense such rights through multiple levels of sublicenses.

If any preexisting rights are embodied in the Works, Contractor grants to TEA the irrevocable, perpetual, non-exclusive,

worldwide, royalty-free right and license to (a) use, execute, reproduce, display, perform, distribute copies of, and prepare

derivative works based upon such preexisting rights and any derivative works thereof and (b) authorize others to do any or all

of the foregoing. Contractor agrees to notify TEA on delivery of the Works if they include any such preexisting rights. On request,

Contractor will provide TEA with documentation indicating a third party’s written approval for Contractor to use any preexisting

rights that may be embodied or reflected in the Works.

Contractor represents and warrants that (i) it has the authority to grant the rights herein granted, (ii) it has not assigned or

transferred any right, title, or interest in the Works or Intellectual Property Rights that would conflict with its obligations under

the Contract, and Contractor will not enter into any such agreements, and (iii) the Works will be original and will not infringe any

Intellectual Property Rights of any other person or entity. These representations and warranties will survive the termination of

the Contract.

(b) License to Contractor Materials

Contractor hereby grants to TEA and Authorized Users a nonexclusive, worldwide, royalty-free, fully paid-up, irrevocable,

perpetual, unlimited, assignable and transferable right and license to the Contractor Materials, and any updates, revisions,

additions thereto, or derivative works thereof, to directly and indirectly: (i) use, access, execute, reproduce, copy, modify,

adapt, publicly display, publicly perform, provide access to, distribute copies of, transmit and otherwise use and exploit; and

(ii) authorize others to do any or all of the foregoing in a sublicense, subcontractor agreement, sub-grant or otherwise, for or

on behalf of TEA, in order to further the purposes of TEA (collectively “Materials License”). The Materials License includes the

right for TEA and Authorized Users to create derivative works of the Contractor Materials and authorize others to do so in

order to further the purposes of TEA and/or Authorized Users. The authors of such derivative works shall have and retain

ownership of such derivative works.

16. Social Security Numbers (SSNs) Withheld: TEA will not provide SSNs to any Contractor under this Contract unless specifically

stated as part of the Contract Project requirements. TEA, its Contractors and their subcontractors, will not require or request school

districts to provide SSNs under this Contract. Contractor agrees that in executing tasks on behalf of TEA, they will not use any

student-identifying information in any way that violates the provisions of FERPA and will destroy or return all student-identifying

information in accordance with the terms in Clause 19 on Confidential Information, FERPA, and Information Security Requirements

hereof.

17. Nondisclosure and Press Releases: Contractor shall not use TEA’s name, logo, or other likeness in any press release, marketing

material, or other announcement without TEA’s prior written approval and in the event of such approval, Contractor shall comply with

the TEA Trademarks License set forth below. TEA does not endorse any vendor, commodity, or service. Contractor is not authorized

to make or participate in any media releases or public announcements pertaining to this procurement, the Response, the Contract,

or the services to which any of the foregoing relate without TEA’s prior written consent, and then only in accordance with explicit

written instructions from TEA. All information gathered, produced, derived, obtained, analyzed, controlled or accessed by Contractor

in connection with this Contract shall be and remain confidential and shall not be released or disclosed by Contractor without the

prior written consent of TEA, which consent must specifically identify the information, data, or materials requested and the audience

for the release of information.

18. Trademark License for Contractor’s Use of TEA’s Logo and Other Trademarks

Contractor hereby acknowledges and agrees that all trademarks and service marks adopted, used, registered, and/or owned by TEA

(“TEA Trademarks,” as shown in the TEA Brand Book, which is available upon request) remain the exclusive property of TEA, that

all right, title and interest in and to the TEA Trademarks are exclusively held by TEA and all goodwill associated with such trademarks

inures solely to TEA. TEA hereby grants to Contractor, and any approved subcontractors pursuant to Clause 8 hereof, for the term

of this Contract, a limited, non-exclusive, royalty-free, non-assignable, non-transferable license to reproduce TEA Trademarks on

published materials, in print and digital form, solely for purposes in connection with the performance of this Contract (“TEA

Trademarks License”), provided that such TEA Trademarks License is expressly conditional upon and subject to, the following:

(a) Contractor is in compliance with all provisions of, and laws applicable to, this Contract;

(b) Contractor is in compliance with all rules, requirements, formats and depictions as set forth in the TEA Brand Book.

(c) Contractor’s use of the TEA Trademarks is strictly in accordance with the quality standards and in conformance with the

reproduction requirements set forth in the TEA Brand Book or as otherwise communicated by TEA, and used as directed by

TEA;

(d) Contractor takes no action to damage the goodwill associated with the TEA Trademarks, and does not directly or indirectly

contest, attack, dispute, challenge, cancel and/or oppose TEA’s right, title and interest in the TEA Trademarks or their validity;

(e) Contractor makes no attempt to sublicense, assign or transfer any rights under this TEA Trademarks License;

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(f) Contractor makes no use of the TEA Trademarks to advertise, market, or sell its goods or services to any third parties;

(g) Contractor complies with any marking requests TEA may make in relation to the TEA Trademarks, including without limitation

to use the phrase “Registered Trademark,” the symbol “™”, and/or the registered trademark symbol “®”, as directed by TEA,

and

(h) Contractor shall, upon TEA’s request, provide examples of proposed usage of the TEA Trademarks for review and approval by

TEA.

Contractor represents and warrants that all materials produced for and/or procured by TEA will align with the requirements and

content expectations detailed in the TEA Brand Book. All materials delivered by Contractor that do not meet the requirements

contained in the TEA Brand Book shall be deemed not accepted for purposes of Clause 48 (Payment) of these Standard TEA Terms

and Conditions. To the extent that Contractor has any questions about content in the TEA Brand Book or TEA appearance and style

guidelines, they should email Communications@tea.texas.gov

If TEA discovers that Contractor’s uses of the TEA Trademarks are not of a high quality, as determined by TEA, TEA may give

Contractor five working days’ written notice within which to change its operations to conform to TEA’s requirements. After the five

working day period, should Contractor fail to meet the quality requirements of TEA, TEA, may at its sole discretion, terminate this

Contract and/or Contractor’s license to use TEA Trademarks.

Contractor further agrees that it is critical that the goodwill associated with the TEA Trademarks is protected and enhanced and,

toward this end, Contractor shall not during the term of this Contract or thereafter: (i) attack the title or any rights of TEA in or to the

TEA Trademarks; (ii) attack the validity of this Contract; (iii) do anything either by an act of omission or commission which might

impair, violate or infringe the TEA Trademarks; (iv) claim (adversely to TEA or anyone claiming rights through TEA) any right, title or

interest in or to the TEA Trademarks; (v) misuse or harm the TEA Trademarks or bring the TEA Trademarks into disrepute; (vi) for

its benefit, directly or indirectly, register or apply for registration of the TEA Trademarks or any mark which is, in TEA’s reasonable

opinion, the same as or confusingly similar to any of the TEA Trademarks; and/or (vii) for its benefit, directly or indirectly, register,

maintain or apply for registration of a domain name which is, in TEA’s reasonable opinion, the same as, confusingly similar to or

incorporates any of the TEA Trademarks.

19. Confidential Information, FERPA, and Information Security Requirements:

(a) Ownership of TEA Confidential Information.

As between TEA and Contractor, Contractor acknowledges and agrees that all TEA Confidential Information, including any

Protected Data, is owned by TEA.

(b) Access to and Use of TEA Confidential Information

Contractor represents and warrants that it will take all necessary and appropriate action to safeguard TEA Confidential

Information and to protect it from unauthorized disclosure. If Contractor discloses any TEA Confidential Information to a

subcontractor or agent, Contractor will require the subcontractor or agent to comply with the same restrictions and obligations

as are imposed on Contractor. Whenever communications with Contractor necessitate the release of TEA Confidential

Information, additional TEA confidentiality forms will need to be signed by the Contractor who requires access to or may be

exposed to that information. Contractor shall access TEA’s systems or TEA Confidential Information only for the purposes for

which it is authorized under this Contract. Contractor shall have a policy and process in place that ensures the same level of

protection of TEA Confidential Information by all employees and subcontractors who require access to or may be exposed to

that information.

Contractor shall at all times cause an Authorized User’s Protected Data to be accessible solely by such Authorized User and

its related or otherwise authorized persons and entities, including applicable teachers and tutors, and applicable school, school

district and TEA personnel. Contractor shall allow each Authorized User and its related persons and entities, at any time, to

export such Authorized User’s Protected Data in a standard electronic format as mutually agreed by TEA and Contractor

throughout and until the expiration of the term of this contract.

Contractor shall not: (i) anonymize or de-identify any part of TEA Confidential Information or create statistics or analysis of TEA

Confidential Information for any Contractor purpose, marketing or otherwise, except as necessary to meet its obligations to

TEA under the Contract; (ii) use or distribute any part of TEA Confidential Information by or to any third-party, except as

necessary to meet its obligations to TEA under the Contract and subject to Clause 19(c) below; and/or (iii) use such data for

any other purpose not specifically set forth herein or as otherwise authorized in writing by the owner of the Protected Data.

For the avoidance of doubt, all Contractor’s representations, warranties and covenants herein including, but not limited to,

access to TEA Confidential Information, FERPA compliance, information security compliance, and disclosure of security

breaches, apply to all Protected Data.

Contractor may not release or disclose TEA Confidential Information to any third-party except as described in this Clause. TEA

Confidential Information may only be released or disclosed to any third-party if: (i) the release or disclosure is necessary for

Contractor to meet its obligations to TEA under the Contract, (ii) Contractor keeps a record of all individuals that will have

access to the TEA Confidential Information, (iii) Contractor requires TEA confidentiality forms be signed by all individuals who

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will or may access the TEA Confidential Information and (iv) Contractor obtains express, written consent from the Contract

Manager to release the TEA Confidential Information. Such consent shall be required in all circumstances notwithstanding any

other provision of this Contract. The record of individuals with access to the TEA Confidential Information must be made

available to TEA immediately upon request.

(d) Notice of Order or Request for Release; Notice of Release

Contractor shall immediately notify TEA upon its receipt of an order or request for the release of TEA Confidential Information.

Contractor shall immediately notify TEA upon its release of TEA Confidential Information.

(e) FERPA

Contractor, its employees and subcontractors, agree that in executing tasks on behalf of TEA, they will not use any student-

identifying information in any way that violates the provisions of applicable law and regulations, including without limitation,

FERPA.

(f) Return and Destruction of TEA Confidential Information.

Contractor shall ensure that any TEA Confidential Information in the custody of Contractor is properly sanitized or destroyed

when the information is no longer required to be retained by TEA or Contractor in accordance with this Contract. Electronic

media used for storing any TEA Confidential Information must be sanitized by clearing, purging or destroying in accordance

with such standards established by the National Institute of Standards and Technology and the Center for Internet Security.

These standards are also required if Contractor is collecting, maintaining, or analyzing data gathered, collected, or provided

under this Contract. Contractor must maintain a record documenting the removal and completion of all sanitization procedures

with the following information:

i. Date and time of sanitization/destruction;

ii. Description of the item(s) and serial number(s) if applicable;

iii. Inventory number(s); and

iv. Procedures and tools used for sanitization/destruction.

Subject to Clause 57(g), no later than 30 days from Contract expiration or termination or as otherwise specified in this Contract,

Contractor must complete the sanitization and destruction of all TEA Confidential Information, including all copies thereof and

materials incorporating such TEA Confidential Information, whether in physical or electronic form, and provide to the TEA

Contract Manager documentation that the sanitization has been completed. An authorized agent of Contractor must certify the

completion of the destruction of data and sanitization.

20. Information Security Requirements

Contractor shall: (a) use appropriate legal, organizational, physical, administrative and technical measures, and security procedures,

including, without limitation, ensuring TEA Confidential Information will be encrypted at rest and in motion, to safeguard and ensure

the security of TEA Confidential Information and to protect TEA Confidential Information from unauthorized access, hacking,

disclosure, duplication, theft, use, modification and/or loss; (b) comply with all applicable laws and regulations governing the handling

of TEA data, including TEA Confidential Information; (c) process all TEA Confidential Information solely within the contiguous United

States and limit access to the TEA Confidential Information to employees, subcontractors and staff of Contractor who have passed

reasonable security clearance checks; (d) implement physical security and access controls at any of its facilities (including any data

centers) that house TEA Confidential Information; (e) leverage one or more of the following authentication controls: multi-factor

authentication (MFA), privileged access management (PAM), and/or 14 character minimum passphrases on systems that will store,

process, or transmit TEA Confidential Information; (f) enable endpoint detection and response (EDR) technology on systems that will

store, process, or transmit TEA Confidential Information; (g) evidence of an established vulnerability and patch management

program; and (h) backups of all TEA data, including TEA Confidential Information, shall be stored on a separate network from

production.

Contractor shall implement an adequate cybersecurity framework based on one of the nationally recognized standards such as: NIST

Cybersecurity Framework Version 1.1, NIST SP 800-53, NIST SP 800-171, NIST Cybersecurity Framework for Improving Critical

Infrastructure Cybersecurity (CSF), ISO 27000 series, or CIS Critical Security Controls (CSC, CIS Top 18). The adopted cybersecurity

framework may not conflict with the information security standards of institutions of higher education

adopted by the Department of

Information Resources under Chapters 2054 and 2059 of the Texas Government Code.

TEA shall have the right to review Contractor’s security measures to ensure that any data that is in Contractor’s possession is secure.

For any Contractor or subcontractor that transmits, processes, or stores TEA Confidential Information, TEA may require Contractor

or subcontractor to periodically provide evidence of its information security policies, procedures, controls, and third party certifications.

Contractor shall cooperate fully by providing such evidence and by making resources, personnel, and systems access available to

TEA and TEA’s authorized representative(s), if requested by TEA. TEA shall also have the right to immediately terminate network

and system connections that do not meet the requirements herein. For any information security risks of the Contractor identified by

TEA throughout the Term of this Contract, TEA may require an action plan to mitigate or remediate the security risk and Contractor

agrees to provide such action plan promptly upon request.

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In accordance with Texas Government Code, Sec. 2054.516, Contractor shall conduct and provide results of penetration tests, at

Contractor’s sole expense, of Contractor developed websites and/or mobile applications for specific TEA use that process, transmit,

or store TEA Confidential Information prior to launch and annually thereafter. TEA shall have the right to conduct a penetration scan

and/or vulnerability testing through a third party periodically during the Term of the Contract without prior warning. Contractor shall

resolve all identified issues to TEA’s satisfaction in a timely manner not to exceed 30 days from the date such issues are identified,

provided that for any issues which cannot be resolved within 30 days, Contractor and TEA shall agree upon a plan for resolving such

issues as promptly as practical, not to exceed three months.

Websites that process, transmit, or store TEA Confidential Information shall be accessible through a secure connection (HTTPS-

only, with HTTP Strict Transport Security (HSTS)), utilizing Transport Layer Security (TLS) version 1.2 or higher.

If Contractor is providing TEA software goods or services and/or data processing goods or services, Contractor agrees to provide

secure configuration guidelines that fully describe all security relevant configuration options and their implications for the overall

security of the software. The guideline shall include a full description of dependencies on the supporting platform, including operating

system, web server, and application server, and how they should be configured for security.

a. Access to Internal TEA Network and Systems

As a condition of gaining remote access to any internal TEA network and systems, Contractor must comply with TEA’s policies

and procedures and must complete the TEA security awareness training within 30 days of obtaining access to TEA networks

and systems, and within 30 days of each contract renewal. TEA’s remote access request procedures will require Contractor to

submit applicable TEA access request forms for TEA’s review and approval. Remote access technologies provided by

Contractor must be approved by TEA’s Chief Information Security Officer. TEA, in its sole discretion, may deny network or

system access to any individual that does not complete the required forms. Contractor must secure its own connected systems

in a manner consistent with TEA’s requirements. The off-site downloading, transfer, and/or storage of TEA Confidential

Information is strictly prohibited unless such acts are specifically allowed in the Contract’s scope of work. Contractor may not

use any computing device to access TEA’s network or e-mail while outside of the continental United States.

b. Cybersecurity Training

Contractor shall ensure that any Contractor employee or subcontractor employee who has access to any TEA Confidential

Information shall complete a cybersecurity training program

certified under Section 2054.519 of the Texas Government Code.

Such training is required annually. Contractor shall provide TEA with verification of the completion of the requisite training.

Completion of the TEA security awareness training described in Clause 20(a) above satisfies this requirement.

c. Data Management and Security Controls

In accordance with Section 2054.138 of the Texas Government Code, Contractor certifies that it will comply with the security

controls required under this Contract and will maintain records and make them available to TEA as evidence of Contractor’s

compliance with the required controls.

21. Cloud Computing State Risk and Authorization Management Program: If this Contract involves Cloud Computing services

subjected to the Cloud Computing state risk and authorization management program (“TxRAMP”), pursuant to Section 2054.0593(d)-

(f) of the Texas Government Code, relating to TxRAMP, Contractor represents and warrants that it complies with the requirements

of the state risk and authorization management program and Contractor agrees that throughout the term of the contract it shall

maintain its certifications and comply with the program requirements in the performance of the Contract. Additionally, any third-party

Cloud Computing services the Contractor will leverage to store, process, or transmit any TEA data shall be disclosed in writing to

TEA prior to use with any TEA data and shall be subject to TxRAMP requirements.

22. Disclosure of and Response to Security Breach or Security Vulnerability

Contractor shall provide notice to TEA’s Contract Manager and TEA’s Chief Information Security Officer as soon as possible following

Contractor’s discovery or reasonable belief that there has been unauthorized use, exposure, access, disclosure, compromise,

modification, or loss of sensitive data or TEA Confidential Information or any breach, denial of service attack and/or inaccessible data

due to ransomware or other type of malware (each such event being a “Security Incident”). Within 24 hours of the discovery or

reasonable belief of a Security Incident, Contractor shall provide a written report to TEA’s Chief Information Security Officer at

Cybersecu[email protected]exas.gov. The report shall include the following information, to the extent known by Contractor:

a. Description of the nature of the Security Incident;

b. The type of TEA information involved;

c. Who may have obtained the information;

d. The specific malware variant used to perform the attack, if any;

e. What steps Contractor has taken or will take to investigate the Security Incident (Including external resources leveraged);

f. Whether law enforcement was notified and, if so, written confirmation and verification from the law enforcement agency that

there is an active investigation into the breach;

g. What steps Contractor has taken or will take to mitigate any negative effect of the Security Incident; and

h. What corrective action Contractor has taken or will take to prevent future similar unauthorized use or disclosure.

i. A point of contact for additional information.

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After submission of the initial report, if Contractor discovers additional responsive information, Contractor shall notify TEA’s Chief

Information Security Officer immediately. If no additional information is discovered, Contractor must provide a report to TEA’s Chief

Information Security Officer on at least a weekly basis providing the status of the investigation and confirming no additional

information has been discovered. The TEA Chief Information Security Officer may request update reports on a more frequent basis

by sending a request in writing to Contractor and Contractor shall use best efforts to comply with that frequency request.

Contractor acknowledges and agrees that the determination as to whether TEA information was involved in the Security Incident is

of paramount importance, and timely communication of the above information to TEA is essential to the performance of this Contract.

Notwithstanding any other provision herein, Contractor shall fully cooperate with TEA in providing all such information requested by

TEA in order for TEA to: (a) meet any applicable statutory notification requirements, as described by TEA and communicated to

Contractor; and (b) mitigate the effects of any Security Incident. Failure to comply with any of the reporting requirements under this

Clause is a material breach of the Contract.

Contractor will notify TEA within 12 hours of any new report of any security vulnerability that affects their platforms directly or indirectly,

that is published in sources including, but not limited to, the Common Vulnerabilities and Exposures and publications of the

Cybersecurity Infrastructure and Security Agency (each such event, a “Security Vulnerability”).

Contractor will provide an action plan for final resolution of such Security Incident or Security Vulnerability within one week of the

date of such Security Incident or Security Vulnerability and complete remediation of such Security Incident or Security Vulnerability

must be completed at Contractor’s expense.

Contractor shall confer with TEA’s Chief Information Security Officer regarding the proper course of the investigation and risk

mitigation. TEA reserves the right to conduct an independent investigation of any Security Incident, and should TEA choose to do

so, Contractor shall cooperate fully by making resources, personnel, and systems access available to TEA and TEA’s authorized

representative(s).

Contractor is not permitted to issue a press release or otherwise publicly disclose the breach without TEA coordination and approval.

Subject to review and approval of TEA’s Chief Information Security Officer, Contractor, at its own cost, shall provide notice that

satisfies the requirements of applicable law to individuals whose personal, confidential, or privileged data were compromised or likely

compromised as a result of the Security Incident, regulatory agencies and other entities as required by law or contract.

Contractor shall reimburse and indemnify TEA or affected Authorized Users for any and all costs and expenses that TEA or affected

Authorized Users incur in investigating and remediating the Security Incident, including but not limited to costs and expenses

associated with: a)TEA or Authorized Users preparing and providing notice to individuals whose confidential data was compromised

or likely compromised; (b) providing credit monitoring for a minimum of 18 months to individuals whose confidential data was

compromised or likely compromised as a result of the security breach that a reasonable person would believe may impact the

individual’s credit or financial security; (c) legal fees, audit costs, fines, and any other fees or damages imposed against TEA or

affected Authorized Users as a result of the security breach; and (d) providing any other notifications or fulfilling any other

requirements under other State or Federal laws.

If Contractor does not reimburse such costs within 30 days of TEA’s written request, TEA may obtain such money from Contractor

by any means permitted by law, including but not limited to offset or counterclaim against any money otherwise due to Contractor by

TEA.

23. Load Testing: Prior to delivery or as otherwise mutually agreed, the Contractor must conduct load testing of the Technology

Platform with simulated usage commensurate with the expected usage of the Technology Platform and provide documentation to

TEA that the Technology Platform has been successfully load tested.

Failed Load Testing: In its sole judgment, TEA may terminate the Contract for cause if the Technology Platform fails to successfully

complete load testing, and Contractor shall refund all fees paid to TEA.

Without prejudice to TEA’s right to terminate for cause for unsuccessful load testing, TEA may, in its sole determination:

(a) give the Contractor the opportunity to extend the load testing period for up to 30 calendar days to allow the Contractor to

diagnose and correct performance problems that may be caused by the Technology Platform or the configuration of the

Technology Platform, or;

(b) give the Contractor the opportunity to install additional hardware or platform components, at the Contractor’s sole expense, to

meet the performance requirements specified, or;

(c) give the Contractor up to 30 calendar days following the diagnosis of any problem related to the Technology Platform to correct,

at the Contractor’s sole expense, the defects in the Technology Platform.

24. Electronic and Information Resources Accessibility Standards: Contractor represents and warrants that the products and

services that are the subject of this Contract comply with the State accessibility requirements for Electronic Information Resources

(EIR) specified in 1 TAC 206 and 1 TAC Chapter 213 when such products or services are available in the commercial marketplace

or when such products are developed in response to a procurement solicitation. Accessibility mandated in TAC align with the federal

regulations set forth in Section 508 of the Rehabilitation Act of 1973. All current and potential contractors that develop or maintain

EIR for TEA shall follow the WCAG (also ISO/IEC standard 40500) as the technical accessibility standard.

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Contractor shall provide credible evidence of its ability to produce EIR that complies with all rules and statutes and is acceptable to

TEA in TEA’s sole discretion.

A website Contractor shall arrange accessibility testing with a third-party company to evaluate the accessibility of the contracted site.

The ideal third-party company shall have a proven track record in web accessibility testing and use real users with disabilities for

manual testing. The third-party company will provide an accessibility conformance report (ACR) to the Contractor and any

recommendations they suggest. The report must be submitted to the TEA Contract Manager for inclusion in the contract file.

25. Capital Outlay: If Contractor purchases capital outlay (furniture and/or equipment) to accomplish the Contract Project, title will remain

with Contractor for the period of the Contract. TEA reserves the right to transfer capital outlay items for Contract noncompliance

during the Contract period or as needed after the ending date of the Contract. This provision applies to any and all furniture and/or

equipment regardless of unit price and how the item is classified in Contractor’s accounting record. This provision is applicable when

federal funds are utilized for the Contract.

26. TEA Property: In the event of loss, damage or destruction of any property owned by or loaned by TEA while in the custody or control

of Contractor, Contractor shall indemnify TEA and pay to TEA the full value of or the full cost of repair or replacement of such property,

whichever is greater, within 30 days of Contractor’s receipt of written notice of TEA’s determination of the amount due. This applies

whether the property is developed or purchased by Contractor pursuant to this Contract or is provided by TEA to Contractor for use

in the Contract Project. If Contractor fails to make timely payment, TEA may obtain such money from Contractor by any means

permitted by law, including but not limited to offset or counterclaim against any money otherwise due to Contractor by TEA.

27. Use of State Property: Contractor is prohibited from using State Property for any purpose other than performing services authorized

under the Contract. State Property includes, but is not limited to, TEA’s office space, identification badges, TEA information

technology equipment and networks (e.g., laptops, portable printers, cell phones, iPads, external hard drives, data storage devices,

any TEA-issued software, and the TEA Virtual Private Network (VPN client)), and any other resources of TEA. Contractor will not

remove State Property from the continental United States. In addition, Contractor may not use any computing device to access TEA’s

network or e-mail while outside of the continental United States. Contractor will not perform any maintenance services on State

Property unless the Contract expressly authorizes such services. During the time that State Property is in the possession of

Contractor, Contractor will be responsible for all charges attributable to Contractor’s use of State Property that exceeds the Contract

Project. Contractor will fully reimburse such charges to TEA within 10 calendar days of Contractor’s receipt of TEA’s notice of amount

due. If Contractor fails to make timely payment, TEA may obtain such money from Contractor by any means permitted by law,

including but not limited to offset or counterclaim against any money otherwise due to Contractor by TEA. Use of State Property for

a purpose not authorized by Contract will constitute breach of contract and may result in termination of the Contract and the pursuit

of other remedies available to TEA under Contract, at law, or in equity.

28. Governing Law and Venue: The contract shall be governed by and construed in accordance with the laws of the State of Texas,

without regard to the conflicts of law provisions. The venue of any suit arising under the Contract is fixed in any court of competent

jurisdiction of Travis County, Texas, unless the specific venue is otherwise identified in a statute which directly names or otherwise

identifies its applicability to TEA.

29. No Waiver: Nothing in this Contract shall be construed as a waiver of TEA’s or the State’s sovereign immunity. This Contract shall

not constitute or be construed as a waiver of any of the privileges, rights, defenses, remedies, or immunities available to TEA or the

State. The failure to enforce, or any delay in the enforcement, of any privileges, rights, defenses, remedies, or immunities available

to TEA or the State under the Contract or under applicable law shall not constitute a waiver of such privileges, rights, defenses,

remedies, or immunities or be considered as a basis for estoppel. TEA does not waive any privileges, rights, defenses, or immunities

available to TEA by entering into the Contract or by its conduct prior to or subsequent to entering into the Contract.

30. Applicable Law and Conforming Amendments: Contractor must comply with all laws, regulations, requirements and guidelines

applicable to a Contractor providing services to the State as these laws, regulations, requirements and guidelines currently exist and

as they are amended throughout the term of this Contract. Any alterations, additions, or deletions to the terms of this Contract which

are required by changes in federal or State law or regulations are automatically incorporated into this Contract without written

amendment hereto and shall become effective on the date designated by such law or regulation.

31. Federal Rules, Laws, and Regulations that apply to all Federal Programs: Contractor represents and warrants its compliance

with all federal laws, rules, and regulations, pertaining to the Contract Project, including, but not limited to:

(a) Americans With Disabilities Act, P.L. 101-336, 42 U.S.C. sec. 12101, and the regulations effectuating its provisions contained

in 28 CFR Parts 35 and 36, 29 CFR Part 1630, and 47 CFR Parts 0 and 64;

(b) Title VI of the Civil Rights Act of 1964, as amended (prohibition of discrimination by race, color, or national origin), and the

regulations effectuating its provisions contained in 34 CFR Part 100;

(c) Title IX of the Education Amendments 1972, as amended (prohibition of sex discrimination in educational institutions) and the

regulations effectuating its provisions contained in 34 CFR Part 106, if Contractor is an educational institution;

(d) Section 504 of the Rehabilitation Act of 1973, as amended (nondiscrimination on the basis of handicapping condition), and the

regulations effectuating its provisions contained in 34 CFR Parts 104 and 105;

(e) The Age Discrimination Act of 1975, as amended (prohibition of discrimination on basis of age), and the implementing

regulations contained in 34 CFR, Part 110;

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(f) The Immigration and Nationality Act (8 U.S.C. § 1101 et seq.) and all subsequent immigration laws and amendments;

(g) Family Educational Rights and Privacy Act of 1975, as amended, and the implementing regulations contained in 34 CFR, Part

99, if Contractor is an educational institution;

(h) Section 509 of H.R. 5233 as incorporated by reference in P.L. 99-500 and P.L. 99-591 (prohibition against the use of federal

grant funds to influence legislation pending before Congress);

(i) The Clean Air Act (42 U.S.C. § 7401 et seq.) and the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), as

amended;

(j) P.L. 103-227, Title X, Miscellaneous Provisions of the GOALS 2000: Educate America Act; P.L. 103-382, Title XIV, General

Provisions of the Elementary and Secondary Education Act, as amended; and

(k) General Education Provisions Act, as amended.

Contractor represents and warrants that all articles and services shall meet or exceed the safety standards established and

promulgated under the Federal Occupational Safety and Health Act of 1970, as amended (29 U.S.C. Chapter 15).

32. Equal Employment Opportunity: Contractor represents and warrants its compliance with all applicable duly enacted State and

federal laws governing equal employment opportunities.

33. E-Verify Program: Contractor certifies that for contracts for services, Contractor shall utilize the U.S. Department of Homeland

Security’s E-Verify system during the term of the Contract to determine the eligibility of:

(a) All persons employed by Contractor to perform duties within Texas; and

(b) All persons, including subcontractors, assigned by Contractor to perform work pursuant to the contract within the United States

of America.

34. Compliance with Laws: Contractor shall comply with all federal, State, and local laws, statutes, ordinances, rules and regulations,

and the orders and decrees of any court or administrative bodies or tribunals in any matter affecting Contractor’s performance,

including if applicable, workers’ compensation laws, minimum and maximum salary and wage statutes and regulations, prompt

payment and licensing laws and regulations. Contractor represents and warrants that it has acquired all applicable licenses,

certifications, permits and any other documentation to perform this Contract. For the entire duration of the Contract, Contractor shall

maintain all required licenses, certifications, permits, and any other documentation necessary to perform this Contract. When required

or requested by TEA, Contractor shall furnish TEA with satisfactory proof of its compliance with this provision.

35. Legal and Regulatory Actions: Contractor represents and warrants that it is not aware of and has received no notice of any court

or governmental agency actions, proceedings or investigations, etc., pending or threatened against Contractor or any of the

individuals or entities included in the Response within the five calendar years immediately preceding the submission of the Response

that would or could impair Contractor’s performance under the Contract, relate to the solicited or similar goods or services, or

otherwise be relevant to TEA’s consideration of the Response. If Contractor is unable to make the preceding representation and

warranty, then Contractor instead represents and warrants that it has included as a detailed attachment in its Response including a

complete disclosure of any such court or governmental agency actions, proceedings or investigations, etc. that would or could impair

Contractor’s performance under the Contract, relate to the solicited or similar goods or services, or otherwise be relevant to TEA’s

consideration of the Response. In addition, Contractor represents and warrants that it shall notify TEA in writing within 5 working

days of any changes to the representations or warranties in this Clause and understands that failure to so timely update TEA shall

constitute a material breach of contract and may result in immediate termination of the Contract.

36. Forms, Assurances, and Reports: Contractor shall timely make and file with the proper authorities all forms, assurances and

reports required by federal laws and regulations. TEA shall be responsible for reporting to the proper authorities any failure by

Contractor to comply with the foregoing laws and regulations coming to TEA’s attention and may deny payment or recover payments

made by TEA to Contractor in the event of Contractor’s failure to so comply.

37. No Exclusivity: The Contract is not exclusive to the Contractor. TEA may obtain products and related services from other sources

during the term of the Contract. TEA makes no express or implied warranties whatsoever that any particular quantity or dollar amount

of products and related services will be procured through the Contract.

38. Antitrust: By signing this Contract, Contractor represents and warrants that, in accordance with

Texas Government Code Section

2155.005 neither Contractor nor any firm, corporation, partnership, or institution represented by Contractor, or anyone acting for such

firm, corporation, partnership, or institution has, (a) violated any provision of the Texas Free Enterprise and Antitrust Act of 1983,

Texas Business and Commerce Code Chapter 15, or the federal antitrust laws; or (b) communicated directly or indirectly the

Response to any competitor or any other person engaged in the same line of business as Contractor.

39. Unfair Business Practices: Contractor represents and warrants that it has not been the subject of allegations of Deceptive Trade

Practices violations under Chapter 17 of the Texas Business and Commerce Code, or allegations of any unfair business practice in

any administrative hearing or court suit. Contractor represents and warrants that it has no officers who have served as officers of

other entities who have been the subject of allegations of Deceptive Trade Practices violations under Chapter 17 of the Texas

Business and Commerce Code or allegations of any unfair business practices in an administrative hearing or court suit.

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40. Child Support Obligation Affirmation: Under Section 231.006 of the Texas Family Code, Contractor certifies that the individual or

business entity named in this Contract or Response is not ineligible to receive the specified grant, loan, or payment and acknowledges

that this Contract may be terminated and payment may be withheld if this certification is inaccurate.

41. Public Information Act: Contractor understands that TEA will comply with the Texas Public Information Act (Chapter 552 of the

Texas Government Code) as interpreted by judicial rulings and opinions of the Attorney General of the State. Information,

documentation, and other material in connection with this solicitation, this Response or any resulting Contract may be subject to

public disclosure pursuant to the Texas Public Information Act. In accordance with Section 2252.907 of the Texas Government Code,

Contractor is required to make any information created or exchanged with the State pursuant to the 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.

TEA Contract Manager will provide the specific format by which Contractor is required to make the information accessible by the

public.

TEA is subject to the provisions of the Texas Public Information Act

. If a request for disclosure of this Contract or any information

related to (a) the Response, (b) the goods or services provided under the Contract or (c) information provided to TEA under this

Contract constituting a record under the Act is received by TEA, the information must qualify for an exception provided by the Act in

order to be withheld from public disclosure. Contractor authorizes TEA to submit any information contained in (a) the Response, (b)

the Contract, (c) provided under the Contract, or (d) otherwise requested to be disclosed, including information Contractor has labeled

as confidential proprietary information, to the Office of the Attorney General for a determination as to whether any such information

may be exempt from public disclosure under the Act. If TEA does not have a good faith belief that information may be subject to an

exception to disclosure, TEA is not obligating itself by this Contract to submit the information to the Attorney General. It shall be the

responsibility of Contractor to make any legal argument to the Attorney General or appropriate court of law regarding the exception

of the information in question from disclosure. Contractor waives any claim against and releases from liability TEA, its officers,

employees, agents, and attorneys with respect to disclosure of information provided (a) in the Response, (b) under or in this Contract,

or (c) otherwise created, assembled, maintained, or held by Contractor and determined by the Attorney General or a court of law to

be subject to disclosure under the Texas Public Information Act. Upon receipt of a request for information related to the goods or

services provided under the Contract maintained by the Contractor, the TEA Contract Manager shall request the responsive

information from the Contractor. The Contractor shall respond to TEA’s request within five working days.

42. Lobbying Prohibition: Contractor represents and warrants that TEA’s payments to Contractor and Contractor’s receipt of

appropriated or other funds under the Contract are not prohibited by Sections 556.005 or 556.0055 of the Texas Government Code.

43. Prohibition of Text Messaging and Emailing while Driving during Official Federal Grant Business: Federal grant recipients

and their grant personnel are prohibited from texting messaging while driving a government owned vehicle or while driving their own

privately-owned vehicle during official grant business, or from using government supplied electronic equipment to text message or

email while driving. Recipients must comply with these conditions under Executive Order 13513

, “Federal Leadership on Reducing

Text Messaging While Driving,” effective October 1, 2009.

44. Liability for and Payment of Taxes: Purchases made for the State’s use are exempt from the State Sales Tax and Federal Excise

Tax. TEA will furnish Tax Exemption Certificates upon request. Contractor represents and warrants that it shall pay all taxes or similar

amounts resulting from this Contract, including, but not limited to, any federal, State, or local income, sales or excise taxes of

Contractor or its employees. TEA shall not be liable for any taxes resulting from this Contract.

45. Conformance: Contractor represents and warrants that all goods and services furnished will conform in all respects to the terms of

this Contract, including any drawings, specifications or standards incorporated herein, and will be free from any defects in materials,

workmanship, or design. In addition, Contractor warrants that goods and services are suitable for and will perform in accordance with

the purposes for which they are intended.

46. Buy Texas Affirmation: In accordance with Texas Government Code, Section 2155.4441

, Contractor agrees that during the

performance of a contract for services, Contractor shall purchase products and materials produced in Texas when they are available

at a price and time comparable to products and materials produced outside this State. This provision does not apply if Contractor

receives any federal funds under this Contract.

47. Pricing Certification, Best Pricing: Contractor hereby represents and warrants that the fees and expenses charged for the work

being conducted for TEA under this Contract are no less favorable than Contractor’s standard pricing practices utilized for offers for

similar work to similar organizations including, without limitation, any pricing provided pursuant to a contract with the Texas

Department of Information Resources or any pricing previously provided to TEA. If Contractor enters into any subsequent agreement

for similar work with any similar organization during the term of this Contract which provides for benefits, pricing and/or hourly rates

that are more favorable than those contained in this Contract, Contractor shall notify TEA promptly of the existence of such more

favorable benefits, pricing and/or hourly rates and TEA shall have the right to receive the more favorable contractual terms

immediately. If requested in writing by TEA, Contractor hereby agrees to amend this contract to contain the more favorable benefits,

pricing and/or hourly rates.

48. Payment: Payment shall be made in accordance with Chapter 2251 of the Texas Government Code, commonly known as the Texas

Prompt Payment Act. Chapter 2251 of the Texas Government Code shall govern remittance of payment and remedies for late

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payment and non-payment. Payment for goods or services purchased with State-appropriated funds will be issued by (a) State

warrants or (b) electronic Direct Deposit from the State Treasury. Direct Deposit is the preferred method of payment. Additional

information and a Direct Deposit Authorization application may be found at: https://fmx.cpa.state.tx.us/fm/payment/index.php

Invoices must be submitted to TEAAccountsPay[email protected]exas.gov and TEA Contract Manager. Any payment owed by TEA must

be transmitted electronically to Contractor no later than 30 days after the latest of:

(a) Date on which TEA received the goods;

(b) Date the performance of the service under the Contract is completed; or

Payment for service(s) described in this Contract is contingent upon satisfactory completion of the deliverables or services. For the

avoidance of doubt, Contractor must comply with all sections of Chapter 2251 applicable to Contractor, including but not limited to,

provisions regarding payments to subcontractors.

Contractor shall submit one original copy of an itemized invoice including all required information detailed in 34 TAC § 20.487.

Invoices must include, at a minimum, the following information:

(a) the contractor's mailing and e-mail (if applicable) address,

(b) the contractor's telephone number,

(d) the state agency's name, agency number, and delivery address,

(e) the state agency's purchase order number, if applicable,

(f) the contract number or other reference number, if applicable,

(g) a valid Texas identification number (TIN) issued by the comptroller,

(h) a description of the goods or services as outlined in the Contract, including relevant delivery dates and the service period,

(i) unit numbers corresponding to the amount of the invoice,

(j) if submitting an invoice after receiving an assignment of a contract, the TIN of the original contractor and the TIN of the

successor vendor, and

(k) other relevant information supporting and explaining the payment requested.

TEA will have 15 working days to approve a deliverable or request revisions to the deliverable. TEA must approve any deliverable

before it may be invoiced by Contractor. If TEA finds a submitted deliverable to be substandard or not in compliance with the

deliverable definition provided by the TEA Contract Manager, Contractor will have 10 working days to provide a Corrective Action

Plan and address the quality or other compliance requirement and resubmit the deliverable. TEA reserves the right to reject and

withhold payment for deliverables found to be substandard or not in compliance with the deliverable definition, including test items

developed under the Contract.

Contractor is strongly encouraged to collaborate with TEA on draft versions of any deliverables or services and request review(s) of

such draft versions before submitting a final version. Additional costs incurred by Contractor that result from repeated submissions

and revising of substandard deliverables will be borne solely by Contractor and not charged against the Contract or to TEA. This

does not preclude an arrangement that allows Contractor to bill against a deliverable as progress is made toward completing that

deliverable, so long as documentation of such progress in a form and nature satisfactory to TEA is provided and is approved by TEA.

It is up to Contractor to request incremental billing based on progress towards a deliverable, and such a request must be approved

by TEA prior to submission of any invoice by Contractor.

Retainage: TEA may withhold 5% or less of each payment as retainage for certain projects. Retainage fees must be stated in the

competitive solicitation and documented in the Contract. The fees may not be arbitrarily imposed after execution of the Contract. The

release of retainage shall be requested in the final invoice.

Unless otherwise stated, payment under this Contract will be made upon delivery of goods and performance of services based upon

submission of an invoice, properly prepared and certified, outlining expenditures by deliverable as detailed above and required by

34 TAC § 20.487. The final invoice is due within 45 days after the end of the Contract. Payment on the final expenditure report is

contingent upon receipt of all reports/products required by this Contract. All costs must be reasonable, allowable and allocable to the

project.

An encumbrance, accounts payable, and expenditure, as with all other contract accounting terms, will be as defined in the Financial

Accounting and Reporting Module of TEA Financial Accountability System Resource Guide

. All goods must have been received and

all services rendered by the ending date of this Contract in order for Contractor to include these costs as either expenditures or as

accounts payable and, thereby, recover funds due.

49. Debts and Delinquencies Affirmation. Contractor acknowledges and agrees that, to the extent Contractor owes any debt including,

but not limited to, delinquent taxes, delinquent student loans, and child support owed to the State, any payments or other amounts

Contractor is otherwise owed under the Contract may be applied toward any debt Contractor owes the State until the debt is paid in

full, regardless of when the debt or delinquency was incurred. These provisions are effective at any time Contractor owes any such

debt or delinquency. This provision does not apply if the warrant or transfer results in payments being made in whole or in part with

money paid to the State by the Federal Government.

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Contractor may verify its account status by accessing the Comptroller’s website at

https://fmx.cpa.state.tx.us/fm/pubs/purchase/restricted/index.php?section=indebted&page=persons_indebted

50. Encumbrances/Obligations: All encumbrances, accounts payable, and expenditures shall occur on or between the beginning and

ending dates of this Contract. All goods must have been received and all services rendered during the Contract period in order for

Contractor to recover funds due. In no manner shall encumbrances be considered or reflected as accounts payable or as

expenditures.

51. Refunds Due to TEA: If TEA determines that TEA is due a refund of money paid to Contractor pursuant to this Contract, Contractor

shall pay the money due to TEA within 30 days of Contractor’s receipt of written notice that such money is due to TEA. If Contractor

fails to make timely payment, TEA may obtain such money from Contractor by any means permitted by law, including but not limited

to offset, counterclaim, cancellation, termination, suspension, total withholding, and/or disapproval of all or any subsequent

applications for said funds.

52. Contractor Performance and Past Performance: TEA is required to submit Contractor Performance reports under Texas

Government Code, §2155.089, and 34 TAC, §20.509 and §20.115

. The Comptroller’s Vendor Performance Tracking System (VPTS)

provides the State procurement community with a comprehensive tool for evaluating vendor performance to reduce risk in the

contract awarding process.

Historic reports submitted prior to February 10th, 2017 will be displayed as “Legacy Satisfactory” or

“Legacy Unsatisfactory.”

TEA may conduct reference checks with other entities regarding past performance of Contractor or its subcontractors. In addition to

evaluating performance through the VPTS, TEA may examine other sources of Contractor performance, including, but not limited to,

notices of termination, cure notices, assessments of liquidated damages, litigation, audit reports, and non-renewals of contracts.

Such sources of Contractor performance may include any governmental entity, whether an agency or political subdivision of the

State, another state, or the Federal government. Further, TEA may initiate such examinations of Contractor performance based upon

media reports. Any such investigations shall be at the sole discretion of TEA, and any negative findings, as determined by TEA, may

result in a non-award to Contractor. The VPTS is located on Comptroller’s website at: http://www.txsmartbuy.com/vpts

53. Time Delays, Suspension, and Sanctions for Failure to Perform:

Time is of the Essence.

Contractor’s timely performance is essential to this Contract.

Suspension

If this Contract is suspended by TEA prior to its expiration date, the reasonable monetary value of services properly performed by

Contractor pursuant to this Contract prior to suspension shall be determined by TEA and paid to Contractor as soon as reasonably

possible. TEA shall not be required to pay any standby hourly rates during a suspension of work.

Sanctions

If Contractor, in TEA’s sole determination, fails or refuses for any reason to comply with or perform any of its obligations under this

Contract, TEA may impose such sanctions as it may deem appropriate. This includes, but is not limited to, the withholding of

payments to Contractor until Contractor complies; the cancellation, termination, or suspension of this Contract in whole or in part;

and the seeking of other remedies as may be provided by this Contract or by law. Any cancellation, termination, or suspension of

this Contract, if imposed, shall become effective at the close of business on the day of Contractor’s receipt of written notice thereof

from TEA.

54. Abandonment or Default: If Contractor defaults on the Contract, TEA reserves the right to cancel the Contract without notice and

either re-solicit or re-award the Contract to the next best responsive and responsible Contractor. The defaulting Contractor will not

be considered in the re-solicitation and may not be considered in future solicitations for the same type of work, unless the specification

or scope of work significantly changed. The period of suspension will be determined by TEA based on the seriousness of the default.

55. Dispute Resolution: The dispute resolution process provided for in Chapter 2260

of the Texas Government Code must be used by

TEA and Contractor to attempt to resolve all disputes arising under this Contract.

56. Protests: Any actual or prospective Contractor who is aggrieved in connection with the solicitation, evaluation, or award of this

Contract by TEA may submit a formal protest to the Director of TEA’s Purchasing and Contracts Division. This protest procedure

shall be the exclusive method by which anyone may make a challenge to any aspect of TEA’s contracting process. TEA will not be

required to consider the merits of any protest unless the written protest is submitted within 10 working days after such aggrieved

person knows, or reasonably should have known, of the occurrence of the action which is protested. The protest document must

meet with all requirements in applicable law and TEA’s rules (19 TAC Section 30.2002

If the protest procedure results in a final determination by TEA that a violation of law has occurred in its contracting process in a case

in which a contract has been awarded, then TEA may declare the contract void at inception. In that event, the party who had been

awarded the contract shall have no rights under the Contract and no remedies under the law against TEA.

57. Termination: This Contract shall terminate upon full performance of all requirements contained in this Contract, unless otherwise

extended or renewed as provided in accordance with the Contract.

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(a) Termination for Convenience: TEA may terminate this Contract at any time, in whole or in part, without cost or penalty, by

providing 15 calendar days’ advance written notice to Contractor. In the event of such a termination, Contractor must, unless

otherwise mutually agreed upon in writing, cease all work immediately upon the effective date of termination. TEA shall be

liable for payments limited only to the portion of work TEA authorized in writing and which Contractor has completed, delivered

to TEA, and which has been accepted by TEA. All such work shall have been completed, in accordance with contract

requirements, prior to the effective date of termination. TEA shall have no other liability, including no liability for any costs

associated with the termination.

(b) Termination for Cause/Default: If Contractor fails to provide the goods or services contracted for according to the provisions

of the Contract or fails to comply with any of the terms or conditions of the Contract, TEA may, upon written notice of default to

Contractor, immediately terminate all or any part of the Contract. Termination is not an exclusive remedy but will be in addition

to any other rights and remedies provided in equity, by law or under the Contract. TEA may exercise any other right, remedy

or privilege which may be available to it under applicable law of the State and any other applicable law or may proceed by

appropriate court action to enforce the provisions of the Contract, or to recover damages for the breach of any agreement being

derived from the Contract. The exercise of any of the foregoing remedies will not constitute a termination of the Contract unless

TEA notifies Contractor in writing prior to the exercise of such remedy.

Following any termination for cause/default, Contractor shall remain liable for all covenants and indemnities under the Contract

and shall be liable for all costs and expenses, including court costs, incurred by TEA with respect to the enforcement of any of

the remedies listed herein.

(c) Termination Due to Changes in Law: If federal or State laws or regulations or other federal or State requirements are amended

or judicially interpreted so that either party cannot reasonably fulfill this Contract and if the parties cannot agree to an

amendment that would enable substantial continuation of the Contract, the parties shall be discharged from any further

obligations under this Contract.

(d) Rights upon Termination or Expiration of Contract: In the event that the Contract is terminated for any reason, or upon its

expiration, TEA shall retain ownership of all Works and associated documentation and materials obtained from Contractor

under the Contract.

(e) Survival of Terms: Expiration or termination of the Contract for any reason does not release Contractor from any liability or

obligation set forth in the Contract that is expressly stated to survive any such expiration or termination or by its nature would

be intended to be applicable following any such termination, including the provisions regarding confidentiality, indemnification,

warranty, transition, records, audit, ownership of intellectual property or other property rights, dispute resolution, rights and

remedies upon termination, invoice and fees verification.

(f) Contract Transition: In the event a subsequent competitive solicitation is awarded to a new contractor, Contractor shall hand-

over to the new contractor all “Works” including but not limited to the following: data, materials, database access, intellectual

property, source code, training materials, access to websites, asset transfer, and maintenance of service commitments. The

purpose of transition planning is to ensure a seamless and continuous service when changing from one contract to another.

Contractor will begin shipping, transmitting or providing access to all appropriate materials and data to the new contractor within

10 days of announcement of award at the new contractor’s expense for data processing and production, packing and shipping.

Contractor will be responsible for providing the services identified in the Contract until all records have been completely

transferred to the new contractor. Contractor is responsible for performing due diligence to ensure that all the transition activities

are identified and completed during the Contract transition.

The Outgoing Contractor shall submit to TEA requested reports and data. TEA will not release the final invoice until all materials

are returned to TEA or their designee. TEA Contract Manager shall approve the transition plan prior to its implementation. The

transition plan must minimize the impacts on continuity of operations and maintain communication with TEA Contract Manager

and the new contractor.

(g) Return of Works and TEA Confidential Information: Subject to paragraph (f) of this Clause above, upon the request of TEA,

but in any event upon termination or expiration of this Contract or a statement of work, Contractor, at its sole expense, shall

surrender to TEA all Works pertaining to the Contract Project, any and all documentation or other products or results of the

services, and all other documents or materials (and copies of same) furnished by TEA to Contractor, including all materials

embodying the Contract Project, regardless of form or whether complete or incomplete, and all TEA Confidential Information

upon TEA’s request. Failure to timely deliver such Works, information and any and all documentation or other products and

results of the services will be considered a material breach of this Contract and TEA has the unrestricted right at any time

during the term of this Contract to request the return of TEA Confidential Information and/or the return of Protected Data to all

Authorized Users.

Following confirmation by TEA that the copies of such materials are acceptable and the completion of any Contract Project

activities for which such materials are required, Contractor will sanitize or destroy all other copies of such material in

Contractor’s possession and cease using such materials and any information contained therein for any purpose. An authorized

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officer of Contractor must certify that ALL records have either been properly cleared, purged, destroyed or returned to TEA in

order to close out the Contract.

58. Insurance: Contractor represents and warrants that it maintains and will maintain the following insurance coverage during the term

of this Contract:

Minimum Required Amounts of Insurance Coverage

Type of Insurance Each Occurrence/Aggregate

Workers Compensation Statutory Limits

Employers Liability

Bodily Injury by Accident $1,000,000 each Accident

Bodily Injury by Disease $1,000,000 each Employee

Bodily Injury by Disease $1,000,000 Policy Limit

Commercial General Liability Bodily Injury and Property Damage

(Occurrence based) $1,000,000 each Occurrence Limit

$2,000,000 Aggregate Limit

$5,000 Medical Expenses each person

$2,000,000 Products/Completed Operations Aggregate Limit

$1,000,000 Personal Injury and Advertising Liability

$50,000 Damage to Premises Rented

Automobile Liability

All Owned, Hired and Non-Owned Vehicles $500,000 Combined Single Limit (for each accident)

Umbrella/Excess Liability $1,000,000 per Occurrence

Technology/Professional Liability Insurance, $5,000,000 for each and every claim and in the aggregate, covering liabilities

and Intellectual Property Infringement, and for financial loss resulting or arising from acts, errors, or omissions, in

Data Protection Liability Insurance (Cyber rendering the Contract Project, including: (i) intellectual property infringement

Liability)

arising out of software and/or content (excluding patent infringement and

misappropriation of trade secrets); (ii) breaches of security; (iii) a violation or

infringement of any laws; and (iv) data theft, damage, destruction, or

corruption, including without limitation, unauthorized access, unauthorized

use, identity theft, theft of Personally Identifiable Information or confidential

corporate information, transmission of a computer virus or other type of

malicious code, and participation in a denial of service attack on a third party.

Such insurance must address all of the foregoing without limitation if caused

by Contractor, its Affiliates or agents, or an independent contractor working

on behalf of the Contractor in providing the Contract Project

All required insurance coverage must: (a) be in a form satisfactory to TEA; (b) be written on a primary and non-contributory basis

with any other insurance coverages Contractor currently has in place; (c) include a Waiver of Subrogation Clause; and (d) issue from

a company or companies that: (i) have a Financial Strength Rating of “A” or better from A.M. Best Company, Inc., (ii) have a Financial

Size Category Class of “VII” or better from A.M. Best Company, Inc., and (iii) are authorized to do business under the laws of the

State.

All required insurance coverage, other than workers compensation and professional liability, must name the State, TEA and its/their

Officers, Directors, and Employees as additional insureds. Contractor shall provide to TEA certificates of insurance showing the State

and TEA as named additional insureds as detailed below.

Contractor shall:

(a) provide Certificates of Insurance to the TEA Contracts and Purchasing Division by email at

TEAContractMonit[email protected]exas.gov

and by U.S. First Class Mail within 30 days of the time Contractor submits its signed

Contract and at least 30 calendar days prior to any material change of a required policy;

(b) provide (a) notice to TEA Contracts and Purchasing Division by email at TEAContractMonitoring@tea.texas.gov and by U.S.

First Class Mail of any cancellation or non-renewal of a required policy at least 30 days prior to such cancellation or non-renewal

and (b) Certificates of Insurance for any policy replacing such cancelled or non-renewed policy to TEA Contracts and

Purchasing Division by email at

TEAContractMonitoring@tea.texas.gov and by U.S. First Class Mail at least 10 calendar days

prior to such cancelation or non-renewal.

(c) ensure that all required insurance policies are written to cover all products, services, and locations related to Contractor’s

performance under the Contract; and

(d) within five working days of being requested by TEA, provide additional written proof, acceptable to TEA, of all policies and

renewal policies. All policies and renewal policies must meet all terms set forth in the Contract.

Contractor further represents and warrants that all policies contain endorsements prohibiting cancellation except upon at least 30

days prior written notice to TEA.

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59. Force Majeure: Neither Contractor nor TEA shall be liable to the other for any delay in, or failure of performance, of any requirement

included in this Contract caused by force majeure. The existence of such causes of delay or failure shall extend the period of

performance until after the causes of delay or failure have been removed provided the non-performing party exercises all reasonable

due diligence to perform. Force majeure is defined as acts of God, war, fires, explosions, hurricanes, floods, failure of transportation,

or other causes that are beyond the reasonable control of either party and that by exercise of due foresight such party could not

reasonably have been expected to avoid, and which, by the exercise of all reasonable due diligence, such party is unable to

overcome, but force majeure events specifically exclude cyberattacks, intrusions and incidents of unauthorized access to any

Contractor Technology Platform that is provided to TEA hereunder. Each party must inform the other in writing, with proof of receipt,

within five working days of the existence of such force majeure, or otherwise waive this right as a defense. Contractor shall use

diligent efforts to end the failure or delay and ensure the effects of such force majeure event are minimized. In the event of a force

majeure event, Contractor will not increase its charges under this Contract. If the delay or failure continues beyond 10 calendar days,

TEA may terminate this Contract in whole or in part with no further liability and will receive a refund of any prepaid fees unearned as

of the time of termination.

60. Drug Free Workplace Policy

: Contractor represents and warrants that it shall comply with the applicable provisions of the Drug-

Free Work Place Act of 1988 (41 U.S.C. § 701 et seq.) and maintain a drug-free work environment.

61. TEA No Smoking Policy: The Texas Facilities Commission (TFC), in compliance with the City of Austin ordinances, prohibits

smoking and the use of all tobacco products within 15 feet outside of public entrances to state-owned facilities. TFC has designated

where outside smoking areas are located on state property. Smoking and other tobacco use are prohibited in all areas of the William

B. Travis Building and any other building occupied by or under the control of TEA. This includes the use of e-cigarettes and vaping

products per Texas Facilities Commissions regulations. Contractor, by acceptance of this Contract, agrees to abide by this policy

when on the property of TEA.

62. Performance Measurement: Contractor shall use OMB-approved standard information collections when providing financial and

performance information. Contractor must be able to relate financial data to performance accomplishments of the project. Contractor

must also provide cost information to demonstrate cost effective practices (e.g., through unit cost data). Contract performance should

be measured in a way that will help to improve program outcomes, share lessons learned, and spread adoption of promising

practices. Contractor must have effective control over, and accountability for, all funds, property, and other assets. The Contractor

must adequately safeguard all assets and assure that they are used solely for authorized purposes.

63. Entities that Boycott Israel: Contractor represents and warrants that: (a) it does not, and shall not for the duration of the Contract,

boycott Israel or (b) the verification required by Section 2271.002 of the Texas Government Code

does not apply to the Contract. If

circumstances relevant to this provision change during the course of the Contract, Contractor shall promptly notify TEA.

64. Energy Company Boycotts: Contractor represents and warrants that: (a) it does not, and will not for the duration of the Contract,

boycott energy companies or (b) the verification required by Section 2274.002 of the Texas Government Code does not apply to the

Contract. If circumstances relevant to this provision change during the course of the Contract, Contractor shall promptly notify TEA.

65. Firearm Entities and Trade Associations Discrimination: Contractor verifies that: (1) it does not, and will not for the duration of

the contract, have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association or

(2) the verification required by Section 2274.002 of the Texas Government Code does not apply to the contract. If circumstances

relevant to this provision change during the course of the contract, Contractor shall promptly notify TEA.

66. COVID-19 Vaccine Passport Prohibition: Contractor certifies that it does not require its customers to provide any documentation

certifying the customer’s COVID-19 vaccination or post-transmission recovery on entry to, to gain access to, or to receive service

from the Contractor’s business. Contractor acknowledges that such a vaccine or recovery requirement would make Contractor

ineligible for a state-funded contract.

67. National Anthem Verification: If Contractor is a professional sports team as defined by

Section 2004.002 of the Texas Occupations

Code, including a wholly-owned subsidiary, majority-owned subsidiary, parent company, or affiliate of a professional sports team that

exists to make a profit, Contractor will play the United States national anthem at the beginning of each team sporting event held at

the Contractor’s home venue or other venue controlled by Contractor for the event. Failure to comply with this obligation constitutes

a default of this contract, and immediately subjects Contractor to the penalties for default, such as repayment of money received or

ineligibility for additional money. In addition, Contractor may be debarred from contracting with the State. TEA or the Attorney General

may strictly enforce this provision.

68. Critical Infrastructure Affirmation: If Contractor will be granted direct or remote access to or control of critical infrastructure in this

state, as defined by Section 2274.0101 of the Texas Government Code

, which includes cybersecurity systems, excluding access

specifically allowed by the governmental entity for product warranty and support purposes, then pursuant to Government Code

Section 2274.0102, Contractor certifies that neither it nor its parent company, nor any affiliate of Contractor or its parent company,

is: (1) majority owned or controlled by citizens or governmental entities of China, Iran, North Korea, Russia, or any other country

designated by the Governor under Government Code Section 2274.0103, or (2) headquartered in any of those countries.

69. Critical Infrastructure Subcontracts: For purposes of this paragraph, the designated countries are China, Iran, North Korea,

Russia, and any countries lawfully designated by the Governor as a threat to critical infrastructure. Pursuant to Section 113.002 of

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the Business and Commerce Code, Contractor shall not enter into a subcontract that will provide direct or remote access to or control

of critical infrastructure, as defined by Section 113.001 of the Texas Business and Commerce Code, in this state, other than access

specifically allowed for product warranty and support purposes, unless (i) neither the subcontractor nor its parent company, nor any

affiliate of the subcontractor or its parent company, is majority owned or controlled by citizens or governmental entities of a designated

country; and (ii) neither the subcontractor nor its parent company, nor any affiliate of the subcontractor or its parent company, is

headquartered in a designated country. Contractor will notify TEA before entering into any subcontract that will provide direct or

remote access to or control of critical infrastructure, as defined by Section 113.001 of the Texas Business & Commerce Code, in this

state.

70. Disaster Recovery Measures and Plan: Contractor will maintain commercially reasonable business continuity and disaster recovery

measures (including but not limited to adequate backups in the case of ransomware) to prevent or cure any resulting delay or failure

and must execute such measures prior to being excused from performance due to force majeure. In accordance with 13 TAC Section

6.94(a)(9), Contractor must provide to TEA the descriptions of its business continuity and disaster recovery plan. Contractor shall

provide TEA with a copy of updated versions of its business continuity and disaster recovery plan (and that of any subcontractor,

including any third party hosting company, that it uses) within 30 days after changes are adopted, or within five days of TEA requesting

a copy. Contractor must provide TEA the expected recovery time objective and recovery point objective in the event of major outage.

TEA shall be free to share the disaster plan with any government agency with jurisdiction to request a copy from TEA and as otherwise

required by court a court of competent jurisdiction, or any federal or State law, including without limitation the Public Information Act,

in accordance Clause 41 hereof.

71. Computer Equipment Recycling Program: If this Contract is for the purchase or lease of computer equipment, then Contractor

certifies that it is in Compliance with Subchapter Y, Chapter 361 of the Texas Health and Safety Code

related to the Computer

Equipment Recycling Program and the Texas Commission on Environmental Quality rules in 30 TAC Chapter 328.

72. Television Equipment Recycling program: If Contractor is submitting a Response for the purchase or lease of covered television

equipment, then Contractor certifies that it is compliant with Subchapter Z, Chapter 361 of the Texas Health and Safety Code related

to the Television Equipment Recycling Program.

73. Secure Erasure of Hard Disk Capability: All equipment provided to TEA by Contractor that is equipped with hard disk drives (i.e.,

computers, telephones, printers, fax machines, scanners, multifunction devices, etc.) shall have the capability to securely erase data

written to the hard drive prior to final disposition of such equipment, either at the end of the equipment’s useful life or the end of the

related services agreement for such equipment, in accordance with 1 TAC § Chapter 202.

74. Electrical Items: All electrical items purchased under this Contract must meet all applicable OSHA standards and regulations and

bear the appropriate listing from Underwriters Laboratory (UL), Factory Mutual Resource Corporation (FMRC), or National Electrical

Manufacturers Association (NEMA).

75. Independent Contractor: Contractor acknowledges and agrees that it is furnishing products and services in the capacity of an

independent contractor and that Contractor, Contractor’s employees, representatives, agents, subcontractors, suppliers, and third-

party service providers are not employees of TEA or the State. Contractor shall have no claim against TEA for vacation pay, sick

leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or

employee benefits of any kind. The Contract shall not create any joint venture, partnership, agency, or employment relationship

between Contractor and TEA.

76. Excluded Parties: Contractor certifies that it is not listed in the prohibited vendors list authorized by Executive Order No. 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.

77. Felony Criminal Convictions: Contractor represents and warrants that Contractor has not and Contractor’s employees, agents or

representatives, including any subcontractors and employees, agents or representative of such subcontractors assigned to TEA

projects, have not been convicted of a felony criminal offense, or that, if such a conviction has occurred, Contractor has fully advised

TEA as to the facts and circumstances surrounding the conviction.

78. Criminal Background Checks: If during the term of this Contract, Contractor and/or Contractor’s staff, or subcontractor and/or

subcontractor’s staff have either (a) access to Texas public school campuses, or (b) access to TEA Confidential Information or TEA

data systems, all Contractor and/or Contractor’s staff and/or subcontractor and/or subcontractor’s staff must submit to a national

criminal history record information review (including fingerprinting) and meet all eligibility standards and criteria as set by TEA before

serving in assignments on behalf of TEA. This requirement applies to all individuals who currently serve or will serve in TEA

assignments that have the possibility of direct contact with students. Contractor and/or any staff member of Contractor who may

perform services under this Contract must complete this criminal history review before the beginning of an assignment. If said

individuals have not completed this requirement or the review results in a determination that Contractor, Contractor’s staff,

subcontractor or subcontractor’s staff is not eligible for assignment, this Contract will be terminated effective immediately or the date

of notice of non-eligibility, whichever is earliest.

(a) Contractor, Contractor’s staff, subcontractor or subcontractor’s staff will not meet eligibility standards and be permanently

disqualified from serving on TEA assignments if an initial review of criminal history records indicates:

i. Felony conviction or deferred adjudication;

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ii. Offense on conviction of which the defendant is required to register as a sex offender;

iii. Conviction or deferred adjudication of a Class A Misdemeanor; or

iv. Offense under the laws of another state or federal law that is equivalent to an offense specified above, or their criminal

record indicates an unresolved Felony or Class A misdemeanor.

(b) Educator Certification Required: If the individual is a certified educator, the educator’s certificate(s) must currently be valid and

in good standing. If the certificate(s) is/are not in good standing (inactive, invalid, revoked, suspended or surrendered) the

individual is not eligible for TEA appointments, assignments, contract, or grant awards or to provide services to school entities

on behalf of TEA.

79. Disclosure of Prior State Employment: In accordance with Section 2254.033 of the Texas Government Code, relating to consulting

services, Contractor certifies that it does not employ an individual who has been employed by TEA or another State agency at any

time during the two years preceding the submission of the Response or, in the alternative, Contractor has disclosed in its Response

the following: (a) the nature of the previous employment with TEA or the other State agency; (b) the date the employment was

terminated; and (c) the annual rate of compensation for the employment at the time of its termination.

80. No Conflicts of Interest: Contractor represents and warrants that the provision of goods and services or other performance under

the contract will not constitute an actual or potential conflict of interest or reasonably create an appearance of impropriety.

81. Collusion: Contractor represents and warrants that Contractor has not colluded with, nor received any assistance from, any person

who was paid by TEA to prepare specifications or a solicitation on which a Contractor’s Response is based and will not allow any

person who prepared the respective specifications or solicitation to participate financially in any contract award.

82. Suspension and Debarment: Contractor represents and warrants that it and its principals are not suspended or debarred from

doing business with the State or federal government as listed on the State Debarred Vendor List maintained by the Texas Comptroller

of Public Accounts and/or the System for Award Management (SAM) maintained by the General Services Administration.

83. Financial Participation Prohibited: Under Section 2155.004(b) of the Texas Government Code, Contractor certifies that the

individual or business entity named in this Response or contract is not ineligible to receive the specified contract and acknowledges

that the contract may be terminated and payment withheld if this certification is inaccurate.

84. Foreign Terrorist Organizations: Contractor represents and warrants that it is not engaged in business with Iran, Sudan, or a

foreign terrorist organization, as prohibited by Section 2252.152 of the Texas Government Code.

85. Former TEA Employees: In accordance with Section 2252.901 of the Texas Government Code, Contractor represents and warrants

that none of its employees including, but not limited to, those authorized to provide services under the Contract, were former

employees of TEA during the 12 month period immediately prior to the date of execution of the Contract. In the case of professional

services contracts as described by Chapter 2254 of the Texas Government Code, Contractor represents and warrants that if a former

employee of TEA was employed by Contractor within one year of the employee’s leaving TEA, then such employee will not perform

services on projects with Contractor that the employee worked on while employed by TEA.

86. Restricted Employment of Certain State Personnel: Pursuant to Section 572.069 of the Texas Government Code, Contractor

represents and warrants that it has not employed and will not employ a former State officer or employee who participated in a

procurement or contract negotiations for TEA involving Contractor within two years after the date that the contract is signed, or the

procurement is terminated or withdrawn. This certification only applies to former State officers or employees whose State service or

employment ceased on or after September 1, 2015.

87. Dealings with Public Servants: Pursuant to Section 2155.003 of the Texas Government Code, Contractor represents and warrants

that it has not given, offered to give, nor intends to give at any time hereafter any economic opportunity, future employment, gift,

loan, gratuity, special discount, trip, favor, or service to a public servant in connection with the submitted Response.

88. Prior Disaster Relief Contract Violation: Sections 2155.006 and 2261.053 of the Texas Government Code, prohibit State agencies

from accepting a Response or awarding a Contract that includes proposed financial participation by a person who, in the past five

years, has been convicted of violating a federal law or assessed a penalty in connection with a contract involving relief for Hurricane

Rita, Hurricane Katrina, or any other disaster, as defined by Section 418.004 of the Texas Government Code, occurring after

September 24, 2005. Under Sections 2155.006 and 2261.053 of the Texas Government Code, Contractor certifies that the individual

or business entity named in this Response 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.

89. Ability to Conduct Business in Texas: Contractor represents and warrants that it is, and will be for the duration of the Contract,

duly organized, validly existing and duly authorized and in good standing with an active status to transact business under the laws

of its state of organization. If Contractor is a foreign or out-of-state entity, Contractor represents and warrants that it is duly authorized

and in good standing to do business with an active status in the State and is registered to transact business in the State under the

process described in Texas Business Organizations Code, Title 1, Chapter 9

and any other State or federal statutes which require

registration in order for Contractor to conduct business in the State under the Contract.

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90. Headings: The headings of articles, sections or clauses contained in this Attachment B and in the Contract, its attachments and

annexes are intended for convenience and reference purposes only and shall in no way be deemed to define or limit any provision

hereof or thereof.

91. Assignment: Contractor may not assign the Contract or assign, transfer or delegate, in whole or in part, any of its interest in, or

rights or obligations under, the Contract without the prior written consent of TEA, and any attempted or purported assignment, transfer

or delegation thereof without such consent shall be null and void. To seek consent for assignment of this Contract, Contractor should

contact TEAContractMonitori[email protected]v

92. Contracting Information Responsibilities: In accordance with Section 552.372 of the Texas Government Code

, Contractor agrees

to (a) preserve all contracting information related to the Contract as provided by the records retention requirements applicable to

TEA for the duration of the Contract, (b) promptly provide to TEA any contracting information related to the Contract that is in the

custody or possession of the Contractor on request of TEA, and (c) on termination or expiration of the Contract, either provide at no

cost to TEA all contracting information related to the Contract that is in the custody or possession of the Contractor or preserve the

contracting information related to the Contract as provided by the records retention requirements applicable to TEA. Except as

provided by

Section 552.374(c) of the Texas Government Code, the requirements of Subchapter J, Chapter 552, Government Code,

may apply to the Contract and the Contractor agrees that the Contract can be terminated if the Contractor knowingly or intentionally

fails to comply with a requirement of that subchapter.

93. Human Trafficking Prohibition: Under Section 2155.0061 of the Texas Government Code, Contractor certifies that the individual

or business entity named in this Response 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.

94. Executive Head of State Agency Affirmation: In accordance with Section 669.003 of the Texas Government Code, relating to

contracting with the executive head of a state agency, Contractor certifies that it is not (1) the executive head of the Agency, (2) a

person who at any time during the four years before the date of the contract was the executive head of the Agency, or (3) a person

who employs a current or former executive head of the Agency.

95. Point of Contact, Responsiveness and Escalation: All notices, reports, documents, correspondence or other data required by this

Contract shall be in writing and delivered to the individuals listed below, their successors in office, or the TEA employee requesting

such notice, report, document, correspondence or other data, on or before scheduled due dates or where no due date is specified

within five working days of any request for such notice, report, document, correspondence or other data by TEA. Within 30 days of

execution of this Contract, the respective Parties will designate the next level of personnel within each organization to address

conflicts or ambiguity that cannot be resolved at the Contract Manager level.

TEA Contractor

Texas Education Agency

1701 North Congress Ave.

Austin, TX 78701

Attn:

6. False Statements: Contractor represents and warrants that all statements and information contained herein are current, complete,

true and accurate. Submitting a document with a false statement or material misrepresentations made during the performance of a

Contract is a material breach of contract and may void the submitted Response and any resulting Contract. During the term of the

Contract, Contractor shall promptly disclose to TEA all changes that occur to the representations, warranties, and certifications

contained herein. Contractor covenants to fully cooperate in the development and execution of any resulting documentation

necessary to maintain accurate record of the representations, warranties and certifications.

The Texas Government Code and Family Code cites referenced in this document may be viewed at:

http://www.statutes.legis.state.tx.us/

The TAC cites referenced in this document may be viewed at: http://texreg.sos.state.tx.us/public/readtac$ext.viewtac