1 General Terms and Conditions

TEXAS HISTORICAL COMMISSION

TERMS AND CONDITIONS

UPDATED 3/10/2017

General Terms and Conditions

I. Term and Termination

(a) Convenience

THC reserves the right, in its sole discretion, to terminate the Contract, in whole or part, provided fourteen (14)

calendar days has been given by the THC to Contractor with written notice. Such notice may be provided by

facsimile or certified mail return receipt requested and is effective upon Contractor's receipt. In the event of such

termination, the Contractor shall, unless otherwise mutually agreed upon in writing, cease all work immediately

upon receipt of the notice of termination. THC shall be liable only for payments for any goods or services

ordered by the Contractor prior to the Contractor’s receipt of the notice of termination.

(b) Cause/Default

If the Contractor fails to provide the goods or services contracted for according to the provisions of the Contract,

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

Contractor, 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 as provided in equity, by law or under the Contract. THC 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. The exercise

of any of the foregoing remedies will not constitute a termination of the Contract unless THC notifies the

Contractor in writing prior to the exercise of such remedy. The Contractor shall be liable for all costs and

expenses, including court costs and attorneys’ fees, incurred by THC with respect to the enforcement of any of

the remedies listed herein.

Bidder shall submit one (1) copy of an itemized invoice showing State order number and agency purchase order

number. The State will incur no penalty for late payment if payment is made in 30 or fewer days from receipt of

goods or services and an uncontested invoice. Payment shall be made in accordance with Chapter 2251, Texas

Government Code.

(d) Right upon Termination or Expiration

In the event that the Contract is terminated for any reason, or upon its expiration, the THC and Customers shall

retain ownership of all associated work products and documentation obtained from the Contractor under the

Contract.

II. Confidentiality and Public Information

Notwithstanding any provisions of this Contract to the contrary, Contractor understands that THC will comply

with the Texas Public Information Act, Texas Government Code, Chapter 552 as interpreted by judicial opinions

and opinions of the Attorney General of the State of Texas. THC agrees to notify Contractor in writing within a

reasonable time from receipt of a request for information related to Contractor's work under this Contract.

Contractor will cooperate with THC in the production of documents responsive to the request. THC will make a

determination whether to submit a Public Information Act request to the Attorney General. Contractor will

notify THC's point of contact within twenty-four (24) hours of receipt of any third party requests for information

that was provided by the State of Texas for use in performing the Contract. This Contract and all data and other

information generated or otherwise obtained in this performance may be subject to the Texas Public Information

Act. Contractor agrees to maintain the confidentiality of information received from the State of Texas during the

performance of this Contract, including information which discloses confidential personal information

particularly, but not limited to, social security numbers.

III. Insurance and Other Security

Contractor represents and warrants that it will, within seven (7) business days of executing this agreement,

provide THC with current certificates of insurance or other proof acceptable to THC of the following insurance

coverage:

Workers’ Compensation & Employers’ Liability. Contractor must maintain Workers’ Compensation

insurance coverage in accordance with statutory limits:

Workers’ Compensation: Statutory Limits

Employers’ Liability: Each Accident $1,000,000

Disease: Each Employee $1,000,000

Disease: Policy Limit $1,000,000

Commercial General Liability. Personal injury and advertising injury with, at a minimum, the following limits:

Bodily Injury and Property Damage: Each occurrence limit $1,000,000

Aggregate Limit: $2,000,000

Medical Expense: $5,000 each person

Personal Injury and Advertising Liability: $1,000,000

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

Damage to Premises Rented to You: $50,000

Contractor represents and warrants that all coverages are with companies licensed in Texas, with “A” rating from

A.M. Best Co., and authorized to provide the required coverages. Respondent also represents and warrants that all

of the above policies and bonds contain endorsements prohibiting cancellation exception upon at least thirty (30)

days prior written notice to THC. Respondent must, within the time provided above, furnish proof to THC of

such coverage in the form of a Certificate of Insurance from Respondent’s insurance carrier or carriers indicating

the above coverages. The Certificate shall be addressed to the Texas Historical Commission as the Certificate

holder. Contractor represents and warrants that it shall maintain the above insurance coverage during the term of

this Contract, and shall provide THC with an executed copy of the policies immediately upon request.

IV. Indemnification

Acts or Omissions

Contractor shall indemnify and hold harmless the State of Texas and THC, AND/OR THEIR

OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, SUBCONTRACTORS, ASSIGNEES,

AND/OR DESIGNEES FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR

SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES arising out of, or

resulting from any acts or omissions of the 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 ATTORNEY GENERAL WHEN TEXAS STATE

AGENCIES ARE NAMED DEFENDENTS 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 THC AGREE TO

FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM.

Infringements

a) Contractor shall indemnify and hold harmless the State of Texas and THC, AND/OR THEIR EMPLOYEES,

AGENTS, REPRESENTATIVES, SUBCONTRACTORS, ASSIGNEES, AND/OR DESIGNEES from any

and all third party claims involving infringement of United States patents, copyrights, trade or service marks, and

any other intellectual or intangible property rights in connection with the PERFORMANCES OR ACTIONS OF

CONTRACTOR PURSUANT TO THIS CONTRACT. CONTRACTOR AND THE THC AGREE TO

FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. CONTRACTOR

SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING ATTORNEYS’ FEES. THE

DEFENSE SHALL BE COORDINATED BY THC WITH THE OFFICE OF THE ATTORNEY

GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND

THC MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE

CONCURRENCE FROM THE OFFICE OF THE ATTORNEY GENERAL.

b) Contractor shall have no liability under this section if the alleged infringement is caused in whole or in part by:

(i) use of the product or service for a purpose or in a manner for which the product or service was not designed,

(ii) any modification made to the product or service without Contractor’s written approval, (iii) any modifications

made to the product or service by the Contractor pursuant to THC’s specific instructions, (iv) any intellectual

property right owned by or licensed to THC, or (v) any use of the product or service by THC that is not in

conformity with the terms of any applicable license agreement.

c) If Contractor becomes aware of an actual or potential claim, or THC provides Contractor with notice of an

actual or potential claim, Contractor may (or in the case of an injunction against THC, shall), at Contractor’s sole

option and expense; (i) procure for the THC the right to continue to use the affected portion of the product or

service, or (ii) modify or replace the affected portion of the product or service with functionally equivalent or

superior product or service so that THC’s use is non-infringing.

Taxes/Workers’ Compensation/Unemployment Insurance – Including Indemnity

1) 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 OF 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. THE THC AND/OR THE STATE OF TEXAS SHALL NOT

BE LIABLE TO THE CONTRACTOR, ITS EMPLOYEES, AGENTS, OR OTHERS FOR THE

PAYMENT OF TAXES OR THE PROVISION OF UNEMPLOYMENT OF ANOTHER

GOVERNMENTAL ENTITY.

2) CONTRACTOR AGREES TO INDEMNIFY AND HOLD HARMLESS THC, THE STATE OF

TEXAS AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRACTORS,

AND/OR ASSIGNEES FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR

SUITS, AND ALL RELATED COSTS, ATTORNEYS’ FEES AND EXPENSES, RELATING TO TAX

LIABILITY, UNEMPLOYMENT INSURANCE AND/OR WORKERS’ COMPENSATION IN ITS

PERFORMANCE UNDER THIS CONTRACT. 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 DEFENDENTS 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 THC AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY

SUCH CLAIM.

V. Dispute Resolution

The dispute resolution process provided for in Tex. Government Code, Chapter 2260 shall be used by THC and

Contractor to resolve any dispute arising under the Contract.

The dispute resolution process provided for in Chapter 2260 shall be used, as further described herein, to attempt

to resolve a claim for breach of contract asserted by the Contractor under the Contract. If the Contractor's claim

for breach of Contract cannot be resolved by the Parties in the ordinary course of business, it shall be submitted

to the negotiation process provided in Chapter 2260. To initiate the process, the Contractor shall submit a written

notice, as required by Chapter 2260, to the Executive Director or his or her designee. The notice shall also be

given to the individual identified in the Contract for receipt of notices. Compliance by the Contractor with

Chapter 2260 is a condition precedent to the filing of a contested case proceeding under Chapter 2260.

The contested case process provided in Chapter 2260 is the Contractor's sole and exclusive process for seeking a

remedy for an alleged breach of Contract by the THC if the Parties are unable to resolve their disputes as

described above.

Compliance with the contested case process provided in Chapter 2260 is a condition precedent to seeking consent

to sue from the Legislature under Chapter 107, Civil Practices and Remedies Code. Neither the execution of the

Contract by the THC nor any other conduct of any representative of the THC relating to the Contract shall be

considered a waiver of sovereign immunity to suit.

For all other specific breach of contract claims or disputes under the Contract, the THC and the Respondent shall

first attempt to resolve them through direct discussions in a spirit of mutual cooperation. If the Parties' attempts

to resolve their disagreements through negotiations fail, the dispute will be mediated by a mutually acceptable

third party to be chosen by the THC and the Contractor within fifteen (15) days after written notice by one of

them demanding mediation under this Section. The Contractor shall pay all costs of the mediation unless the

THC, in its sole good faith discretion, approves its payment of all or part of such costs. By mutual agreement, the

THC and the Contractor may use a non-binding form of dispute resolution other than mediation. The purpose of

this Section is to reasonably ensure that the THC and the Contractor shall, in good faith, utilize mediation or

another non-binding dispute resolution process before pursuing litigation. The THC participation in, or the

results of, any mediation or other non-binding dispute resolution process under this Section or the provisions of

this Section shall not be construed as a waiver by the THC of (1) any rights, privileges, defenses, remedies or

immunities available to the THC as an agency of the State of Texas or otherwise available to the THC; (2) the

THC termination rights; or (3) other termination provisions or expiration dates of the Contract.

Notwithstanding any other provision of the Contract to the contract, unless otherwise requested or approved in

writing by the THC the Contractor shall continue performance and shall not be excused from performance

during the period any breach of contract claim or dispute is pending under either of the above processes;

however, the Contractor may suspend performance during the pendency of such claim or dispute if the

Contractor has complied with all provisions of §2251.051, Tex. Government Code, and such suspension of

performance is expressly applicable and authorized under that law.

VI. Representations, Warranties, and General Provisions

6.1. Family Code

Under Texas Family Code, Title 5, Subtitle D, Section 231.006(d), regarding child support, Respondent certifies

that the individual or business entity named in the Proposal is not ineligible to receive the specified payment and

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

inaccurate. Furthermore, any Respondent subject to Section 231.006 must include names and Social Security

numbers of each person with at least 25% ownership of the business entity submitting the Proposal. This

information must be provided prior to award.

6.2. Eligibility

Under Government Code, Section 2155.004 (relating to certain taxes), Contractor represents and warrants that

Contractor is not ineligible to receive this Contract and acknowledges that is Contract may be terminated any

payment withheld if this representation and warranty is inaccurate. Contractor represents and warrants that it is

not delinquent in the payment of any franchise taxes owed the State of Texas. Also, Government Code, Section

2155.004 prohibits a person or entity from receiving a state contract if that person or entity received

compensation for participating in preparing the solicitation or specifications for the Contract.

6.3. Liability for Taxes

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. THC shall not be liable for any taxes from this Contract.

6.4. Amendments

Except as provided in Section 6.11 of this Contract, this Contract may be amended only upon written agreement

between THC and Contractor; however, any amendment of this Contract that conflicts with the laws of the State

of Texas shall be void ab initio.

6.5. Applicable Law; Venue

This Contract shall be governed by and construed in accordance with the laws of the State of Texas. The venue of

any suit arising under this Contract is fixed in any court of competent jurisdiction of Travis County, Texas.

6.6. Strict Compliance

Time is of the essence in the performance of this Contract. Contractor shall strictly comply with all of the

deadlines, requirements, and Standards of Performance for this Contract.

6.7. Assignments

Without the prior written consent of THC, Contractor may not assign this Contract, in whole or in part, and may

not assign any right or duty required under it.

6.8. Partially Completed Work

No later than the first calendar day after the termination of this Contract, or at THC's request, Contractor shall

deliver to THC all completed, or partially completed, work and any and all documentation or other products and

results of these services. Failure to timely deliver such work or any and all documentation or other products and

results of the services shall be considered a material breach of this Contract. Contractor shall not make or retain

any copies of the work or any and all documentation or other products and results of the services without the

prior written consent of the THC.

6.9. Federal, State, and Local Requirements

Contractor shall demonstrate on-site compliance with the Federal Tax Reform Act of 1986, Section 1706,

amending Section 530 of the Revenue Act of 1978, dealing with issuance of Form W-2's to common law

employees. Contractor is responsible for both federal and State unemployment insurance coverage and standard

Workers' Compensation insurance coverage. Contractor shall comply with all federal and State tax laws and

withholding requirements. The State of Texas shall not be liable to Contractor or its employees for any

Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Contractor

shall indemnify the State of Texas and shall pay all costs, penalties, or losses resulting from the Contractor's

omission or breach of this Section.

6.10. Severability Clause

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

6.11. Applicable Law and Conforming Amendments

Contractor must comply with all laws, regulations, requirements and guidelines applicable to a Contractor

providing services to the State of Texas as these laws, regulations, requirements and guidelines currently exist and

as they are amended throughout the term of this Contract. THC reserves the right, in its sole discretion, to

unilaterally amend this Contract throughout its term to incorporate any modifications necessary for THC or

Contractor's compliance with all applicable State and federal laws, and regulations.

6.12. No Waiver

Nothing in this Contract shall be construed as a waiver of 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 the State of Texas. The failure to enforce, or any delay in the enforcement, of any privileges, rights, defenses,

remedies, or immunities available to the State of Texas under this 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. THC does not waive any privileges, rights, defenses, or immunities available to THC by entering into

this Contract or by its conduct prior to or subsequent to entering into this Contract.

6.13. No Liability upon Termination

If this Contract is terminated for any reason, THC and the State of Texas shall not be liable to Contractor for any

damages, claims, losses, or any other amounts arising from or related to any such termination. However,

Contractor may be entitled to the remedies provided in Tex. Government Code, Chapter 2260.

6.14. Independent Contractor

Contractor or Contractor's employees, representatives, agents and any subcontractors shall serve as an

independent contractor in providing the services under any PO resulting from this RFP. Contractor or

Contractor's employees, representatives, agents and any subcontractors shall not be employees of THC. Should

Contractor subcontract any of the services required in this RFP, Contractor expressly understands and

acknowledges that in entering into such subcontract(s), THC 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

rendered under all subcontracts are rendered in compliance with this RFP.

6.15. Limitation on Authority; No Other Obligations

Contractor shall have no authority to act for or on behalf of THC or the State of Texas except as expressly

provided for in this Contract; no other authority, power or use is granted or implied. Contractor may not incur

any debts, obligations, expenses, or liabilities of any kind on behalf of the State of Texas or THC.

6.16. Supporting Documents, Retention; Right to Audit; Independent Audits

Contractor shall maintain and retain supporting fiscal and any other documents relevant to showing that any

payments under this Contract funds were expended in accordance with the laws and regulations of the State of

Texas, including but not limited to, requirements of the Comptroller of the State of Texas and State Auditor.

Contractor shall maintain all such documents and other records relating to this Contract and the State's property

for a period of seven (7) years after the date of submission of the final invoices or until a resolution of all billing

questions, whichever is later. Contractor shall make available at reasonable times and upon reasonable notice, and

for reasonable periods, all documents and other information related to the "Work" as defined in paragraph 6.28

of this contract. Contractor and the subcontractors shall provide the State Auditor with any information that the

State Auditor deems relevant to any investigation or audit. Contractor must retain all work and other supporting

documents pertaining to this Contract, for purposes of inspecting, monitoring, auditing, or evaluating by THC

and any authorized agency of the State of Texas, including an investigation or audit by the State Auditor.

Contractor shall cooperate with any authorized agents of the State of Texas and shall provide them with prompt

access to all of such State's work as requested. Contractor's failure to comply with the Section shall constitute a

material breach of this Contract and shall authorize the THC and the State of Texas to immediately assess

appropriate damages for such failure. Pursuant to Government Code, §2262.154 the acceptance of funds by

Contractor or any other entity or person directly under this Contract, or indirectly through a subcontract under

this Contract, shall constitute acceptance of the authority of the State Auditor to conduct an audit or investigation

in connection with those funds. Contractor acknowledges and understands that the acceptance of funds under

this Contract shall constitute consent to an audit by the State Auditor, Comptroller or other agency of the State of

Texas. Contractor shall ensure that this paragraph concerning the State's authority to audit funds received

indirectly by subcontractors through Contractor and the requirement to cooperate is included in any subcontract

it awards. Furthermore, under the direction of the legislative audit committee, an 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.

6.17. Deceptive Trade Practices; Unfair Business Practices

Contractor represents and warrants that it has not been the subject of allegations of Deceptive Trade Practices

violations under Tex. Bus. & Com. Code, Chapter 17, or allegations of any unfair business practice in any

administrative hearing or court suit and that Contractor has not been found to be liable for such practices in such

proceedings. Contractor certifies that it has no officers who have served as officers of other entities who have

been the subject allegations of Deceptive Trade Practices violations or allegations of any unfair business practices

in an administrative hearing or court suit and that such officers have not be found to be liable for such practices

in such proceedings.

6.18. Equal Opportunity

Contractor represents and warrants that it shall not discriminate against any person on the basis of race, color,

national origin, creed, religion, political belief, sex, sexual orientation, age, and disability in the performance of this

Contract.

6.19. Antitrust

Contractor represents and warrants that neither Contractor nor any firm, corporation, partnership, or institution

represented by Contractor, or anyone acting for such firm, corporation or institution has (1) violated the antitrust

laws of the State of Texas under Tex. Bus. & Com. Code, Chapter 15, or the federal antitrust laws; or (2)

communicated directly or indirectly the Proposal to any competitor or any other person engaged in such line of

business during the procurement process for this Contract.

6.20. No Conflicts

Contractor represents and warrants that the Contractor has no actual or potential conflicts of interest in providing

services to the State of Texas under this Contract and that Contractor's provision of services under this Contract

would not reasonably create an appearance of impropriety.

6.21. Financial Interests; Gifts

Contractor represents and warrants that neither Contractor nor any person or entity that will participate

financially in this Contract has received compensation from THC or any agency of the State of Texas for

participation in preparation of specifications for this Contract. Contractor represents and warrants that it has not

given, offered to give, and does not intend to give at any time hereafter, any economic opportunity, future

employment, gift, loan, gratuity, special discount, trip, favor or service to any public servant or employee in

connection with this Contract.

6.22. Felony Criminal Convictions

Contractor represents and warrants that Contractor has not and Contractor's employees have not been convicted

of a felony criminal offense, or that, if such conviction has occurred, Contractor has fully advised THC as to the

facts and circumstances surrounding the conviction.

6.23. Notices

All written notices required under this Contract will be either by hand delivery to Contractor's office address

located on the agency’s PO and THC’s office address at 1700 N. Congress Ave., Austin, TX 78701 or by US Mail,

certified, return receipt requested, to THC, PO Box 12276, Austin, TX 78711-2276. Notice will be effective on

receipt by the affected party. Either party may change the designated notice address in this Section by written

notification to the other party.

6.24. False Statements; Breach of Representation

By signature to this Contract, Contractor makes all the representations, warranties, guarantees, certifications and

affirmations included in this Contract. If Contractor signed its Proposal with a false statement or signs this

Contract with a false statement or it is subsequently determined that Contractor has violated any of the

representations, warranties, guarantees, certifications or affirmations included in this Contract, Contractor shall be

in default under this Contract and THC may terminate or void this Contract for cause and pursue other remedies

available to THC under this Contract and applicable law.

6.25. Force Majeure

Neither Contractor nor THC shall be liable to the other for any delay in, or failure of performance, of any

requirement included in any PO resulting from this RFP 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. Each party must inform the other in writing, with proof of receipt, within three (3) business days of

the existence of such force majeure, or otherwise waive this right as a defense.

6.26. Debts or Delinquencies to State

The Comptroller is prohibiting from issuing any payment to a person or entity that has been reported as having

an indebtedness or delinquency to the state. Contractor agrees that, to the extent Contractor owes any debt or

delinquent taxes to the State of Texas, any payments or other amounts Contractor is otherwise owed under the

Contract shall be applied toward the debt or delinquent taxes until the debt or delinquent taxes are paid in full.

Contractor agrees to comply with all applicable laws regarding satisfaction of debts or delinquencies to the State

of Texas.

6.27. Buy Texas

In accordance with the Government Code, Section 2155.4441, the State of Texas requires that during the

performance of a contract for services, Contractor shall purchase products and materials produced in the State of

Texas when available at a price and time comparable to products and materials produced outside the state.

6.28. Work Made for Hire

For the purposes of this Contract, the term "Work" is defined as all reports, statistical analyses, work papers,

work products, materials, approaches, designs, specifications, systems, documentation, methodologies, concepts,

research, materials, intellectual property or other property developed, produced, or generated in connection with

this Contract. All work performed pursuant to this Contract is made the exclusive property of THC. All right, title

and interest in and to said property shall vest in THC upon creation and shall be deemed to be a work for hire

and made in the course of the services rendered pursuant to this Contract. To the extent that title to any such

work may not, by operation of law, vest in THC, or such work may not be considered a work made for hire, all

rights, title and interest therein are hereby irrevocably assigned to THC. THC shall have the right to obtain and to

hold in its name any and all patents, copyrights, registrations or such other protection as may be appropriate to

the subject matter, and any extensions and renewals thereof. Contract must give THC and/or the State of Texas,

as well as any person designated by THC and/or the State of Texas, all assistance required to perfect the rights

defined herein without any charge or expense beyond those amounts payable to Contractor for the services

rendered under this Contract.

6.29. Electronic and Information Resources Accessibility Standards, As Required by 1 TAC

Chapter 213 (Applicable to State Agency and Institution of Higher Education Purchases

Only)

1) Effective September 1, 2006 state agencies and institutions of higher education shall procure products which

comply with the State of Texas Accessibility requirements for Electronic and Information Resources specified in

1 TAC Chapter 213 when such products are available in the commercial marketplace or when such products are

developed in response to a procurement solicitation.

2) Vendor shall provide DIR with the URL to its Voluntary Product Accessibility Template (VPAT) for reviewing

compliance with the State of Texas Accessibility requirements (based on the federal standards established under

Section 508 of the Rehabilitation Act), or indicate that the product/service accessibility information is available

from the General Services Administration "Buy Accessible Wizard" (http://www.buyaccessible.gov). Vendors not

listed with the "Buy Accessible Wizard" or supplying a URL to their VPAT must provide DIR with a report that

addresses the same accessibility criteria in substantively the same format. Additional information regarding the

"Buy Accessible Wizard" or obtaining a copy of the VPAT is located at http://www.section508.gov/.

6.30. Abandonment or Default

If Contractor is found to be in default under any provision of this Contract, THC may cancel the Contract

without notice and either re-solicit or award the contract to the next best responsive and responsible respondent.

In the event of abandonment or default, Contractor will be responsible for paying damages to THC including but

not limited to re-procurement cards, and any consequential damages to the State of Texas or THC resulting from

Contractor's non-performance. 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 is

significantly changed.

6.31. Prohibited Use of Appropriate or other Funds under Control of State Agency; Lobbying

The Contractor represents and warrants that ordering entities' payments to the Contractor and Contractor's

receipt of appropriated or other funds under any of this or any resulting agreement are not prohibited by

Government Code §556.005 or §556.008.

6.32. Certification Concerning Hurricane Relief

Sections §2155.006 and §2261.053, Government Code, Prohibit state agencies from awarding a contract to any

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 §418.004 Gov't Code, occurring after September 24, 2005. Under §2155.006, Gov't Code, the Respondent

certifies that the individual or business entity named in its Proposal is not ineligible to receive the Contract and

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

6.33. Immigration

The Contractor represents and warrants that it shall comply with the requirements of the Immigration Act of

1990 and Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Immigration Reform

and Control Act of 1986 regarding employment verification and retention of verification forms for any

individuals hired on or after November 6, 1986, who will perform any labor or services under this Contract.

6.34. Drug Free Work Place

The Contractor shall comply with the applicable provisions of the Drug-Free Work Place Act of 1988 (Public

Law 100-690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug-free work environment; and the

final rule, government-wide requirements for drug-free work place (grants), issued by the Office of Management

and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the

Drug-Free Work Place Act of 1988 is incorporated by reference and the Contractor shall comply with the relevant

provisions thereof, including any amendments to the final rule that may hereafter be issued.

6.35. General Security Policy

Awarded Respondent shall provide notice to THC Project Manager within twenty- four (24) hours of Successful

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

compromise, modification, or loss of construction materials (“Security Incident”). Within twenty-four (24) hours

of the notification of a Security Incident, Successful Respondent shall provide a written report to THC Project

Manager detailing the circumstances of the incident, which includes at a minimum, if available:

a. A description of the nature of the Security Incident;

b. The type of theft or damage involved;

c. Who may have caused the theft or damage;

d. What steps Successful Respondent has taken or will take to investigate the Security Incident;

e. What steps Successful Respondent has taken or will take to mitigate any negative effect of the

Security Incident; and

f. A point of contact for additional information.

Each day thereafter until the investigation is complete, Awarded Respondent shall provide THC Project Manager

with a written report regarding the status of the investigation and the following additional information as it

becomes available:

a. Who is known or suspected to have gained unauthorized access to the site;

b. Whether there is any knowledge the site has been abused or compromised;

c. What additional steps Successful Respondent has taken or will take to investigate the Security

Incident;

d. What steps Successful Respondent has taken or will take to mitigate any negative effect of the

Security Incident; and

e. What corrective action Successful Respondent has taken or will take to prevent future similar

unauthorized use or disclosure.

Successful Respondent shall confer with THC Project Manager regarding the proper course of the investigation

and risk mitigation. THC reserves the right to conduct an independent investigation of any Security Incident, and

should THC choose to do so, Awarded Respondent shall cooperate fully by making resources, personnel, and

systems access available to THC and THC authorized representative(s). If THC, in its sole discretion, elects to

send its own separate notice, then all costs associated with preparing and providing notice shall be reimbursed to

THC by Awarded Respondent. If Awarded Respondent does not reimburse such costs within thirty (30) days of

THC’s written request, then THC shall have the right to collect such costs.”

6.36. Substitutions

Substitutions are not permitted without written approval of THC.

6.37. Testing and Inspection

THC may test and inspect goods and services purchased under the Contract to ensure compliance with the

specifications of this RFP and the Contract. The THC may also test and inspect goods and services before they

are purchased under the Contract. Authorized THC personnel shall have access to the Respondent's place of

business for the purpose of inspecting the goods. To the extent practical, the THC inspections will not disrupt the

Respondent's daily operations. Tests shall be performed on samples submitted with the Proposal or on samples

taken from regular shipments. All costs of testing and inspection shall be borne by the Respondent. In the event

the goods tested fail to meet or exceed all conditions and requirements of the RFP and Contract, the goods will

be rejected in whole or in part, at the State's option, and returned to the Respondent or held for disposition at the

Respondent's expense. Latent defects may result in cancellation of the Contract at no expense to the state.

If material fails to meet specifications, the Respondent will be notified by fax/mail or e-mail. The Respondent will

have ten (10) working days after receipt of the notification to remove the rejected material from state property.

Material will be removed at the Respondent's expense. Material not removed in the allotted time period will be

disposed by the Customer. The Respondent will be charged for all disposable expenses conducted by the

Customers.

6.38. Survival of Terms

Termination of the Contract for any reason shall not release the Contractor from liability or obligation set forth in the

Contract that is expressly stated to survive any such termination or by its nature would be intended to be applicable

following any such termination, including the provisions regarding confidentiality, indemnification , transition,

records, audit, property rights, dispute resolution, invoice and fees verification.

6.39. U.S. Department of Homeland Security’s E-Verify System

By entering into this Contract, the Contractor certifies and ensures that all employees and other persons (including

subcontractors) assigned by the Respondent to perform work pursuant to the Contract are eligible to work in the

United States of America. The Contractor should utilize, for the term of this Contract, the U.S. Department of

Homeland Security’s E-Verify system to determine the eligibility of its employees and those of its subcontractors to

work in the United States of America.

6.40. Funding

The Parties acknowledge and agree that nothing in this agreement will be interpreted to create a future obligation or

liability in excess of funds currently appropriated to the agency by the Legislature of the State of Texas. In the event

appropriated funds are not available to continue payments for work under this contract, the THC shall notify the

Contractor as soon as reasonably possible, and THC may terminate the contract at that time or such other date as loss

of appropriated funds may require. To the extent funds are available the Contractor shall be paid for work completed

prior to the date of notice of termination. The THC shall not be liable for any damages or any other amounts which

are caused by or associated with such termination.

6.41. Contracts Involving Exchange or Creation of Public Information

Contractor is required to make any information created or exchanged with the State pursuant to this contract, and not

otherwise excepted from disclosure under the Texas Public Information Act, available in a format this is accessible by

the public at no additional charge to the state. Copies of documents not maintained in digital format must be provided

to the Commission within thirty (30) days. Copies of documents maintained in digital format must be provided to the

Commission in .pdf format within thirty (30) days. In case of an Open Records Request, the Commission may request

that documents be made available to the Commission within five (5) days.