STATE OF CALIFORNIA DEPARTMENT OF GENERAL SERVICE
SOFTWARE LICENSING PROGRAM (SLP)
CONTRACT NO. SLP-23-70-0003D
SHI INTERNATIONAL CORP
APPROVED:
CITY OF MERCED
A California Charter Municipal
Corporation
BY:
D. Scott McBride
City Manager
ATTEST:
D. SCOTT MCBRIDE, CITY CLERK
BY:
Assistant/Deputy City Clerk
APPROVED AS TO FORM:
CRAIG J. CORNWELL, CITY ATTORNEY
BYGriGornell 4-16-20240
ACCOUNT DATA:
M. VENUS RODRIGUEZ
BY:
Verified by Finance Officer
Docusign Envelope ID: C0099DDC-54A0-4BC0-B460-D87CC98ED26C Procurement Division
CALIFORNIA DEPARTMENT OF
DGS GENERAL SERVICES 707 Third Street, 2nd Floor, MS #2-202 West Sacramento, CA 95605-2811
State of California
SOFTWARE LICENSING PROGRAM (SLP)
AMENDMENT NO. 1
sofiwarelicensingprogram
Contractor: SHI International Corp
Contract Number: SLP-23-70-0003D
SLP Contract Term: 04/05/2023 through 04/30/2026
Contract Base: LexisNexis Risk Solutions FL Inc Offer LexisNexis-SLP-2023 This amendment is being issued to:
Add the provision "GENERATIVE ARTIFICIAL INTELLIGENCE (GENAI) REPORTING"
GENERATIVE ARTIFICIAL INTELLIGENCE (GENAI) REPORTING
1. State Agencies
State agencies are required to obtain a GenAl Reporting and Factsheet (STD 1000) from the Contractor prior to award. If GenAl is disclosed by the Contractor, state agencies must follow the required GenAl purchase procedures outlined in State Contracting Manual (SCM) Volume 2, Chapter 23, Generative Artificial Intelligence (GenAI). State agencies must retain the STD 1000 and confirmation the purchase may proceed in their procurement file.
2. Contractor
Upon request by an ordering agency, Contractor must complete a GenAl Reporting and Fact Sheet (STD 1000) to identify if their solution or service includes, or makes available, any GenAl including, GenAl from third parties or subcontractors.
During the term of the contract, Contractor must notify the State in writing if their services or any work under this contract includes, or makes available, any previously unreported GenAl technology, including GenAl from third parties or subcontractors. Contractor shall immediately complete the GenAl Reporting and Factsheet (STD 1000) to notify the State of any new or previously unreported GenAl technology.
At the direction of the State, Contractor shall discontinue the use of any new or previously undisclosed GenAl technology that materially impacts functionality, risk or contract performance, until use of such GenAl technology has been approved by the State.
Failure to disclose GenAl use to the State and submit the GenAl Reporting and Factsheet (STD 1000) may be considered a breach of the contract by the State at its sole discretion and the State may consider such failure to disclose GenAl and/or failure to submit the GenAl Procurement Division | State of California | California Government Operations Agency 707 3rd Street, 2ndFloor | West Sacramento, CA 95605 | : 916.375-4400 Docusign Envelope ID: C0099DDC-54A0-4BC0-B460-D87CC98ED26C
SOFTWARE LICENSING PROGRAM (SLP)
SHI International Corp
SLP-23-70-0003D
AMENDMENT NO. 1
Reporting and Factsheet (STD 1000) as grounds for the immediate termination of the contract. The State is entitled to seek any and all relief to which it may be entitled to as a result of such non-disclosure.
The State reserves the right to amend the contract, without additional cost, to incorporate GenAl Special Provisions into the contract at its sole discretion and/or terminate any contract that presents an unacceptable level of risk to the State.
If Contractor identifies GenAl in their solution, a copy of the STD 1000 must be submitted to the State Contract Administrator.
ALL OTHER TERMS AND CONDITIONS REMAIN THE SAME.
For State of CA: For Contractor:
- Docusigned i
Heck Merel Duedas
For Stephanne Lim Signature
Manager
Sr. Lead Contracts Specialist
Multiple Award Programs Section
Procurement Division Printed Title
Department of General Services Michael Drecolias
Printed Name
12/11/2024
SHI International Corp.
Date Company Name
9/11/2024
Date
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Procurement Division
CALIFORNIA DEPARTMENT OF
DGS 707 Third Street, 2nd Floor, MS #2-202
GENERAL SERVICES
West Sacramento, CA 95605-2811
State of California
SOFTWARE LICENSING PROGRAM (SLP) AGREEMENT
softwarelicensingprogram
Contractor: SHI International Corp.
Contract Number: SLP-23-70-0003D
SLP Contract Term: 04/05/2023 through 04/30/2026
Contract Base: LexisNexis Risk Solutions FL Inc. Offer Number LexisNexis- SLP-2023
This contract is available for use by State of California departments and any city, county. special district, educational agency, local government body or corporation empowered t expend public funds. While the state makes this contract available, each local agency should make its own determination whether the SLP is consistent with their procurement policies and regulations.
The SLP Contractor is required to provide all SLP contract terms and conditions with the list of products, services and prices.
Terms and conditions listed below are hereby incorporated by reference and made a part of this SLP Agreement as if attached herein and shall apply to the purchase of goods or services made under this Participating Agreement. Contractor non-compliance with the requirements of this contract may result in contract termination.
By signing below, Contractor agrees to the General Provisions dated June 21, 2022, SaaS Cloud Computing Services Special Provisions dated March 15, 2018 and all other provisions included herein.
1) General Provisions - Information Technology (GSPD-401IT) effective 6/21/22 2) Cloud Computing Services Special Provisions (Software as a Service) effective 3/15/2018
3) General Provisions - Information Technology Cloud Computing Software as a Service (SaaS) effective 6/21/22
For State of CA: For Contractor:
Original Signature on File Original Signature on File
Stephanne Lim Signature
Manager
Multiple Award Programs Section
Printed Title
Procurement Division
Department of General Services
Printed Name
04/25/2023
Date
Company Name
Date
Procurement Division | State of California | California Government Operations Agency 707 3rd Street, 2ndFloor | West Sacramento, CA 95605 | t 916.375-4400
SOFTWARE LICENSING PROGRAM (SLP)
SHI INTERNATIONAL CORP.
SLP-23-70-0003D
CONTRACTOR PROVIDES COPY OF • A report is required for each SLP, each THE CONTRACT AND SUPPLEMENTS quarter, even when no new purchase orders are received in the quarter.
The SLP Contractors are required to • A separate report is required for each provide the entire contract that consists of SLP agreement. the following: • Each purchase order must be
reported only once in the quarter
• SLP Cover sheet with signatures from identified by the purchase order the DGS Procurement Division Deputy date, regardless of when the Director or designee and Contractor. services were performed, the • Ordering instructions. products were delivered, the invoice • Std. 204 Payee Data Record. was sent, or the payment was • SLP Contract terms and conditions received.
(General provisions). • Purchase orders from State and local • Software License Agreement pricing. government agencies must be • Supplements, if applicable separated on the report, as shown in the instructions.
CONTRACTOR QUARTERLY REPORTS • Any report that does not follow the required format or excludes required
SLP Contractors are required to submit
information will be deemed incomplete
a detailed SLP Business Activity Report and returned to the SLP contractor for on a quarterly basis to the SLP Unit. corrections.
This report shall be e-mailed to the SLP Taxes and freight must not be included Unit general e-mail: in the report.
• New SLP agreements, renewals, and
[email protected] amendments will be approved only if
the SLP contractor has submitted all
Alternatively, this report can be mailed to: required quarterly reports and incentive fees.
Department of General Services • A quarterly report is required even Procurement Division - SLP Unit when there is no activity.
Attention: Quarterly Report Processing
707 Third Street, MS #2-202
West Sacramento, CA 95605
after the end of each quarter as shown
Reports that include paper checks for below:
quarterly incentive fees must be mailed
and shall not be e-mailed. Quarter 1 Jan 1 to Mar 31 Due Apr 15 Quarter 2 Apr 1 to Jun 30 Due Jul 15
For the full instructions on completing and Quarter 3 Jul 1 to Sep 30 Due Oct 15 submitting SLP Quarterly Business Activity Quarter 4 Oct 1 to Dec 31 Due Jan 15 Reports, reference "ATTACHMENT A" of
this agreement.
CONTRACTOR QUARTERLY
Important things to remember regarding INCENTIVE FEES
SLP Quarterly Business Activity Reports:
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All SLP contractors, including certified • Agency purchase order number Small Businesses and Disabled Veteran • State Agency Bill Code Business Enterprises, will be required to • Line item number pay incentive fees for all orders placed by • Unit price local government agencies. See the • Extended line item price current incentive fees in the DGS Price • Invoice total Book (https://www.dgs.ca.gov/OFS/Price-
Book). State sales tax and/or use tax shall be
itemized separately and added to each
A local government agency is any city,
county, district, or other local governmental
body, including the California State
University (CSU) and University of
California (UC) systems, K-12 public payment.
schools and community colleges
empowered to expend public funds. CONTRACTOR OWNERSHIP
INFORMATION
Local incentive fee payments may be
made with a paper check, electronic check SHI International Corp. is a large business or credit card. enterprise.
Contractor may make an electronic check EXECUTIVE ORDER N-6-22 - RUSSIA or credit card payment through the LPA SANCTIONS
Payment Portal
(https://www.dgs.ca.gov/PD/Services/Page On March 4, 2022, Governor Gavin -Content/Procurement-Division-Services- Newsom issued Executive Order N-6-22 List-Folder/Access-LPA-Payment-Portal). (the EO) regarding Economic Sanctions against Russia and Russian entities and
If payment is made with a paper check, the individuals. "Economic Sanctions" refers to check shall be made payable to the sanctions imposed by the U.S. government Department of General Services, SLP Unit, in response to Russia's actions in Ukraine, and must be mailed to the SLP Unit along as well as any sanctions imposed under with the applicable Quarterly Report. state law. The EO directs state agencies to See the provision in this SLP entitled terminate contracts with, and to refrain "Contractor Quarterly Report Process" for from entering any new contracts with, information on when and where to send individuals or entities that are determined these checks and reports. to be a target of Economic Sanctions.
Accordingly, should the State determine
CONTRACTOR INVOICES Contractor is a target of Economic
Sanctions or is conducting prohibited
Unless otherwise stipulated, the contractor transactions with sanctioned individuals or must send their invoices to the department
entities, that shall be grounds for
address set forth in the purchase order. termination of this agreement. The State Invoices shall be submitted in triplicate and
shall provide Contractor advance written
shall include the following: notice of such termination, allowing • Contract number Contractor at least thirty (30) calendar days BUILDING GREEN • BUYING GREEN • WORKING GREEN 3
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to provide a written response. Termination are currently available under any shall be at the sole discretion of the State. mandatory Statewide Contract. State agencies who want to purchase a software
appliance/hardware product type, other
AGENCY NON-COMPLIANCE than what is available through a
mandatory Statewide Contract must submit
Agency non-compliance with the an exemption request to the mandatory requirements of this contract may result in Statewide Contract Administrator. For the loss of delegated purchasing authority more information and the required to use the SLP. justification forms regarding the exemption process, please refer to the following
PLEASE REQUEST A COPY OF ALL
website:
CONTRACT TERMS AND CONDITIONS
https://www.dgs.ca.gov/PD/Services/Page-
FROM THE CONTRACTOR, IF NOT Content/Procurement-Division-Services- PROVIDED INITIALLY.
List-Folder/Request-an-IT-Hardware-
Contract-Exemption. This restriction does
AVAILABLE PRODUCTS AND/OR
SERVICES not apply to local governmental agencies.
INSTALLATION SERVICES
This contract may provide for the purchase
and warranty of software, software
• Installation Services can only be
maintenance, technical support, training, purchased when they are in support of installation, software as a service, and
software purchased under this SLP
implementation services.
contract.
Only products from the manufacturer listed • Installation Services must not exceed below are available within the scope of this the total cost of the software. contract:
IMPLEMENTATION SERVICES
• LexisNexis Risk Solutions FL Inc.
Before procuring Implementation Services,
UNAVAILABLE PRODUCTS AND/OR state departments should conduct an SERVICES analysis and use their own due diligence to
determine if these services are the most
The following products and/or services are cost effective solution that meets their not available under this contract: business needs and security requirements. • STANDALONE HARDWARE Requirements
• CONSULTING
• State departments must complete a
• TELECOMMUNICATION PRODUCTS
Statement of Work (SOW) for all
• CLOUD: IAAS/PAAS
Implementation services.
Notice to State Agencies: Software
appliances/hardware products offered • Job titles/categories are limited to those under the Software Publisher's pricelist are identified in the SLP price list.
NOT available under the Software
• Hourly rates must not exceed those
Licensing Program (SLP) if the same type identified in the SLP price list. of software appliance/hardware products
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• Implementation services can only be 290 Davidson Ave. purchased when they are in support of Somerset, NJ 08873 software purchased under the SLP. Attn: David Pereira
• Time and Material pricing must not Agencies with questions regarding exceed the job Title hourly rate times products and/or services may contact the the number of hours to complete the job. contractor as follows:
NOTE: Implementation Services under Phone: (888) 764-8888 this contract must be paid in arrears. E-mail: [email protected]
SOFTWARE MAINTENANCE, SHIPPING INSTRUCTIONS
SUBSCRIPTION AND SAAS RENEWALS
F.O.B. (Free On Board) Destination
Software Maintenance, Subscription and
SaaS renewals shall be fixed at the DELIVERY
agencies prior applicable rates (or lower),
with a 0% uplift (no up-lift) and no 30 days after receipt of order, or as negotiated between agency and Contractor
additional increases, fees or charges
and included in the purchase order.
added, for the duration of this SLP
contract. AGENCY RESPONSIBILITY
SERVICE CREDITS Agencies must contact contractors to
Service credits are acceptable only if they obtain copies of the contracts and compare them for a best value purchasing decision.
meet the following requirements:
Each agency is responsible for its own
• Service credits must be used for
contracting program and purchasing
training, certifications, or support decisions, including use of the SLP and must never expire even when
program and associated outcomes.
this contract term ends.
This responsibility includes, but is not
• Unused service credits can be used
necessarily limited to, ensuring the
for other services such as training, necessity of the services, securing certification, or support. Example: If
appropriate funding, complying with laws
$1,000 is purchased in training and policies, preparing the purchase order credits but is not fully utilized, the in a manner that safeguards the State's department may use the remainder
of unused credits for certifications or interests, obtaining required approvals, and documenting compliance with Government
support. Code 19130.b (3) for outsourcing services.
ISSUE PURCHASE ORDER TO
It is the responsibility of each agency to
Agency purchase orders must be mailed to consult as applicable with their legal staff the following address, or e-mailed: and contracting offices for advice depending upon the scope or complexity of
SHI International Corp. the purchase order.
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If you do not have legal services available • Issue a Purchase Order to the selected to you within your agency, the DGS Office contractor.
of Legal Services is available to provide • For SLP transactions under $10,000, services on a contractual basis. only one offer is required if the State agency can establish and document that
ORDER REQUIREMENTS AND the price is fair and reasonable. The fair MAXIMUM ORDER LIMIT and reasonable method can only be
used for non-customizable purchases.
• Unless otherwise determined by an
individual ordering agency purchasing Local governments set their own order authority, no SLP order may be limits, and are not bound by the order limits executed by a State agency that on the cover page of this contract. exceeds that agency's purchasing
authority threshold. State agencies with SPLITTING ORDERS approved purchasing authority, along
with their dollar thresholds can be Splitting orders to avoid any monetary obtained at the List of State limitations is prohibited Departments with Approved Purchasing
Authority. Do not circumvent normal procurement
• Agencies must adhere to the detailed methods by splitting purchases into a requirements in the State Contracting series of delegated purchase orders (SAM Manual (SCM) when using SLP 3572).
contracts. The requirements for the
Splitting a project into small projects to
following bullets are in the SCM, Volume avoid either fiscal or procedural controls is 2, (for IT): If soliciting offers from a
certified DVBE, include the Disabled prohibited (SAM 4819.34).
Veteran Business Enterprise MINIMUM ORDER LIMITATION
Declarations form (Std. 843) in the
Request for Offer. This declaration There is no minimum dollar value limitation must be completed and returned by the on orders placed under this contract.
DVBE prime contractor and/or any
DVBE subcontractors. (See the SCM ORDERING PROCEDURES
Volume 2, Chapter 1200)
• This is not a bid transaction, so the 1. Order Form
small business preference, DVBE
participation goals, protest language, State departments shall use a intents to award, evaluation criteria, Contract/Delegation Purchase Order advertising, etc., are not applicable. (Std. 65) for purchases and services. • If less than 3 offers are received, State receied, sate agencies must document their file with Local governments shall, in lieu of the the reasons why the other suppliers State's Purchase Order (Std. 65), use solicited did not respond with an offer. their own purchase order document. • Assess the offers received using best Electronic copies of the State Standard value methodology, with cost as one of Forms can be found at the Office of the criteria.
State Publishing web site:
http://www.dgs.ca.gov/osp(select
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Standard Forms). The site provides contained on the order to include the information on the various forms and service period (start and end date), and use with the Adobe Acrobat Reader. the monthly cost (or other intermittent Beyond the Reader capabilities, Adobe cost), and any other information Acrobat advanced features may be pertinent to the services being provided. utilized if you have Adobe Business The cost for each line item should be Tools or Adobe Acrobat 4.0 installed on included in the order, not just system your computer. Direct link to the totals.
Standard Form 65:
(http://www.osp.dgs.ca.gov/pdf/std065.p The contractor must immediately reject df) orders that are not accurate.
Discrepancies are to be negotiated and
2. Purchase Orders incorporated into the order prior to the products and services being delivered.
All Ordering Agency purchase order
documents executed under this SLP 3. Service and Delivery after Contract must contain the applicable SLP Expiration
contract number as show on page 1.
Purchase orders must be issued before
1. State Departments: the SLP contract end term expires.
Std. 65 Purchase Documents - Also, purchase order amendments State departments not transacting cannot be issued to add product and in FI$Cal must use the Purchasing software maintenance if the SLP Authority Purchase Order (Std. 65) contract end term has expired. for purchase execution. An
electronic version of the Std. 65 is CONTRACT PRICES
available at the DGS-PD website
at http://www.dgs.ca.gov/ Contract prices for products and/or pd/Forms.aspx (select Standard services are maximums. The ordering STD Forms). department is encouraged to negotiate
lower prices.
FiSCal Purchase Documents -
State departments transacting in PRODUCT AND PRICING CHANGES FI$Cal will follow the FI$Cal AND/OR UPDATES ARE NOT
procurement and contracting AUTHORIZED UNTIL REVIEWED AND procedures. APPROVED BY DGS PROCUREMENT
DIVISION SOFTWARE LICENSING
2. Local Governmental Departments: PROGRAM.
Local governmental agencies may Said documents are to be sent to the use their own purchase document Department of General Services (DGS) for purchase execution. Procurement Division, Software Licensing Program, 707 Third Street, 2nd Floor, West
The agency is required to complete and Sacramento, CA 95605-2811, Attention distribute the order form. For services, SLP Unit.
the agency shall modify the information
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CONTRACT EXTENSIONS information at the time the order is quoted:
The initial term of this SLP contract is 3
years and may be extended for an a. The Contractor will state that, as the additional 2-years, however an amendment prime Contractor, it shall be must be issued prior to contract end date. responsible for the overall execution NOTE: Extensions are optional and are of the fulfillment of the order. at the discretion of the state.
b. The Contractor will indicate to the
SMALL BUSINESS MUST BE ordering department how the order CONSIDERED meets the small business or DVBE
goal, as follows:
Prior to placing orders under the SLP, state
departments shall, whenever practicable, • List the name of each company first consider offers from small businesses that is certified by the Office of that have established SLP contracts [GC Small Business and DVBE Section 14846(b)]. NOTE: The Certification that it intends to Department of General Services auditors subcontract a commercially will request substantiation of compliance useful function to; and with this requirement when department • Include the small business or files are reviewed. DVBE certification number of
each company listed, and attach
SMALL BUSINESS/DVBE - TRACKING a copy of each certification; and • Indicate the dollar amount of
State departments are able to claim each subcontract with a small subcontracting dollars towards their small business or DVBE that may be business or DVBE goals whenever the claimed by the ordering Contractor subcontracts a commercially department towards the small useful function to a certified small business business or DVBE goal; and or DVBE. The Contractor will provide the • Indicate what commercially ordering department with the name of the useful function the small small business or DVBE used and the business or DVBE subcontractor dollar amount the ordering department can will be providing towards apply towards its small business or DVBE fulfillment of the order. goal.
3. The ordering department's purchase
SMALL BUSINESS/DVBE - order must be addressed to the prime SUBCONTRACTING Contractor, and the purchase order
must reference the information provided
1. The amount an ordering department by the prime Contractor as outlined can claim towards achieving its small above.
business or DVBE goals is the dollar
amount of the subcontract award made CERTIFICATION OF PAYMENT by the Contractor to each small OPTIONS - Military & Vets Code $$999.5 business or DVBE.
and 999.7(a) (SB588)
2. The Contractor will provide an ordering
department with the following
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In accordance with the State Contracting (not owned by the contractor and not Manual, Volume 2, Section 1203.1, State owning the contractor. departments shall require the Contractor to
submit a complete an accurate Prime To substantiate compliance with the Contractor's Certification - DVBE Productive Use Requirements, the SLP Subcontracting Report (STD. 817) upon contractor must provide upon request the acceptance of ordered goods or services for name and address of a customer which the Contractor committed to DVBE installation and the name and telephone subcontractor participation. number of a contact person.
Upon delivery or completion of ordered The elapsed time such equipment or goods or services, State departments shall software must have been in operation is do the following: based upon the importance of the
• Provide proper withhold notification to equipment or software for system prime contractors. operation and its cost. The following • Withhold $10,000 or the full amount of designates product categories and the the final invoice if less than $10,000 required period of time for equipment or pending receipt of the complete and software operation prior to approval of the accurate STD 817. replacement item on SLP.
• Review the STD 817. If it is
determined to be complete and Category 1 - Critical Software: Critical accurate, authorize payment of the software is software that is required to withhold. control the overall operation of a computer
• If the STD 817 is late or incomplete, system or peripheral equipment. Included in this category are operating systems,
department must send the prime
contractor a cure notice allowing at data base management systems, language least 15 days, but not more than 30 interpreters, assemblers and compilers, days, to meet the Certification of communications software, and other Payments to DVBE Subcontractors essential system software. requirements.
• If the prime contractor does not Final Bid
comply by the identified deadline, Cost Installation Submission permanently deduct the withhold. More than
Retain all records for a minimum of six years. $100,000 8 months 6 months $10,000 up to
PRODUCTIVE USE REQUIREMENTS $100,000 4 months 3 months
Less than
The customer in-use requirement applies $10,000 1 month 1 month to all procurements of information
technology equipment and software, per Category 2 - All Information Technology the SCM, Volume 2, Chapter 1000, Section Equipment and Non-Critical Software:
1007. Information technology equipment is
defined in State Administrative Manual
Each equipment or software component (SAM) § 4819.2.
must be in current operation for a paying
customer and the paying customer must be
external to the contractor's organization
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Final Bid TERMINATION OF SLP CONTRACT
Cost Installation Submission
More than 1. The State or Contractor may terminate
$100,000 6 months 4 months this SLP Contract at any time upon 30 $10,000 up days prior notice.
to $100,000 4 months 3 months 2. Upon termination or other expiration of Less than this Contract, each party will assist the
$10,000 1 month 1 month other party in orderly termination of the Contract and the transfer of all assets,
STATE AND LOCAL GOVERNMENTS tangible and intangible, as may CAN USE THE SLP facilitate the orderly, nondisrupted
business continuation of each party.
State and local government use of the SLP 3. This provision shall not relieve the contracts is optional. A local government Contractor of the obligation to perform is any city, county, special district or other under any purchase order or other local governmental body or corporation, similar ordering document executed including UC, K-12 schools and community prior to the termination becoming colleges, effective.
that is empowered to expend public funds. STATEWIDE PROCUREMENT While the state makes this contract REQUIREMENTS
available, each local government agency
should make its own Departments must carefully review and adhere to the following Procurement
determination whether the SLP is Requirements, such as:
consistent with their procurement policies
and regulations. • SAM Section 4819.41 and 4832
certifications for information technology
APPLICABLE CODES, POLICIES AND procurements and compliance with GUIDELINES policies.
• Services may not be paid for in
All California codes, policies and guidelines advance.
are applicable. THE USE OF THE SLP • Departments are required to file with the DOES NOT REDUCE OR RELIEVE Department of Fair Employment and STATE DEPARTMENTS OF THEIR Housing (DFEH) a Contract Award RESPONSIBILITY TO MEET STATEWIDE Report Std. 16 for each order over REQUIREMENTS REGARDING $5,000 within 10 days of award,
CONTRACTING OR THE including supplements that exceed
PROCUREMENT OF GOODS OR $5,000.
SERVICES. Most procurement and • Pursuant to Unemployment Insurance contract codes, policies, and guidelines are Code Section 1088.8, state and local incorporated into The SLP contracts. government agencies must report to the Notwithstanding this, there is no guarantee Employment Development Department that "every" possible requirement that (EDD) all payments for services that pertains to all the different and unique state equal $600 or more to independent sole processes has been included. proprietor contractors. See the contractor's Std. Form 204, Payee Data
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Record, in the SLP contract to Advance payment is allowed for determine sole proprietorship. All services only under limited, narrowly inquiries regarding this subject should defined circumstances, e.g. between be forwarded to EDD: Technical specific departments and certain questions: 916/651-6945 or Information types of non-profit organizations, or and forms: 916/657-0529. when paying another government • Annual small business and disabled agency (Government Code (GC) § veteran reports. 11256 - 11263 and 11019).
ETHNICITY/RACE/GENDER REPORTING It is NOT acceptable to pay in REQUIREMENT advance, except software
maintenance and license fees, which
Effective July 1, 2002, in accordance with are considered a subscription and Public Contract Code 10116, state may be paid in advance if a provision departments are to capture information on addressing payment in advance is ethnicity, race, and gender of business included in the purchase order. owners (not subcontractors) for all
awarded contracts, including CAL-Card Software warranty upgrades and transactions. Each department is required extensions may also be paid for in to independently report this information to advance, one time. the Governor and the Legislature on an
annual basis. 3. Payee Data Record (Std. 204)
Departments are responsible for State Agencies not transacting in developing their own guidelines and forms FISCal, must obtain a copy of the for collecting and reporting this information, Payee Data Record (Std. 204) in order to process payments. State
Contractor participation is voluntary. Ordering Agencies forward a copy of the Std. 204 to their accounting
PAYMENTS AND INVOICES office(s). Without the Std. 204,
payment may be unnecessarily
1. Payment Terms delayed. State Agencies should
contact the Contractor for copies of
Payment will be made in accordance the Payee Data Record with the provisions of the California
Prompt Payment Act, Government 4. DGS Administrative Fees Code Section 927 et. seq. Unless
expressly exempted by statute, the Orders from State Agencies:
Act requires State agencies to pay
properly submitted, undisputed The Department of General Services invoices not more than 45 days after (DGS) will bill each State agency (i) the date of acceptance of goods or directly an administrative fee for use performance of services; or (ii) receipt of SLP contracts. The administrative of an undisputed invoice, whichever is fee should NOT be included in the later. order total, nor remitted before an
invoice is received from DGS.
2. Advance Payments
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5. Credit Card
The Contractor accepts the State of
California credit card (CAL-Card).
A Purchasing Authority Purchase
Order (Std. 65) is required even when
the ordering department chooses to
pay the contractor via the CAL-Card.
Also, the DGS administrative fee is
applicable for all SLP orders to
suppliers not California certified as a
small business.
FEDERAL DEBARMENT
When federal funds are being expended,
the department is required to obtain (retain
in file) a signed "Federal Debarment"
certification from the contractor before the
purchase order is issued. This
certification is required by the regulations
implementing Executive Order 12549,
Debarment and Suspension, 29 CFR Part
98, Section 98.510, Participants;
responsibilities. The regulations were
published as Part VII of the May 26, 1988
Federal Register (pages 19160-19211).
AMERICANS WITH DISABILITY ACT
(ADA)
(See attachment B)
DGS PROCUREMENT DIVISION
CONTACT AND PHONE NUMBER
Department of General Services
Procurement Division, SLP Unit
707 Third Street, 2nd Floor
West Sacramento, CA 95605-2811
Phone no.: 916/375-4365
Faxination no.: 916/376-6371
BUILDING GREEN • BUYING GREEN • WORKING GREEN 12
ATTACHMENT A
SLP QUARTERLY BUSINESS ACTIVITY REPORT
Company Name: Reporting Calendar Year:
Software Publisher:
Reporting Quarter: • Q1 (January to March)
Contract Number: • Q2 (April to June)
For Questions Regarding this Report: • Q3 (July to September) E-mail: • Q4 (October to December)
Check Here if No New Orders for This Quarter
STATE GOVERNMENT AGENCY PURCHASES
Total Dollars
State Agency Purchase Purchase Agency Phone
Name Order Number Per Purchase Agency Contact Agency Address Order Date Billing Code Number
Order
Total State Agency Dollars Reported for Quarter: $_
LOCAL GOVERNMENT AGENCY PURCHASES
Local Government Agency Purchase Order Purchase Total Dollars Per Agency Phone Name Number Agency Address
Order Date Purchase Order Number
Total Local Government Agency Dollars for Quarter: $
1.25% Remitted to DGS (does not apply to CA certified Small Businesses): $ Total of State and Local Government Agency Dollars Reported for this Quarter: $ Updated 7/2019
ATTACHMENT A
SLP QUARTERLY BUSINESS ACTIVITY REPORT
Instructions for completing the SLP Quarterly Business Activity Report.
1. Complete the top of the form with the appropriate information for your company.
2. Agency Name - Identify the State agency or Local Government agency that issued the order.
3. Purchase Order Number - Identify the purchase order number (and amendment number if applicable) on the order form. This is not your invoice number. This is the number the State agency or Local Government agency assigns to the order.
4. Purchase Order Date - Identify the date the purchase order was issued, as shown on the order. This is not the date you received, accepted, or invoiced the order.
5. Agency Billing Code - Identify the State agency billing code. This is a five-digit number identified on the upper right hand corner of the Std. 65 purchase order form.
You must identify this number on all purchases made by State of California agencies.
Billing codes are not applicable to Local Government agencies.
6. Total Dollars Per PO - Identify the total dollars of the order excluding tax and freight.
Tax must NOT be included in the quarterly report, even if the agency includes tax on the purchase order. The total dollars per order should indicate the entire purchase order amount (less tax and freight) regardless of when you invoice order, perform services, deliver product, or receive payment.
7. Agency Contact - Identify the ordering agency's contact person on the purchase order.
8. Agency Address - Identify the ordering agency's address on the purchase order.
9. Phone Number - Identify the phone number for the ordering agency's contact person.
10. Total State Sales & Total Local Sales - Separately identify the total State dollars and/or Local Government agency dollars (pre-tax) for all orders placed in quarter.
11.1.25% Remitted to DGS - Identify 1.25% of the total Local Government agency dollars reported for the quarter.
12. Grand Total - Identify the total of all State and Local Government agency dollars reported for the quarter.
Notes:
• A report is required for each SLP contract each quarter even when there are no new orders for the quarter.
• Quarterly reports are due two weeks after the end of the quarter.
Procurement Division | State of California | California Government Operations Agency 707 3rd Street, 2ndFloor | West Sacramento, CA 95605 | t 916.375-4400
ATTACHMENT B
ADA NOTICE
Procurement Division (State Department of General Services)
AMERICANS WITH DISABILITIES ACT (ADA) COMPLIANCE
POLICY OF NONDISCRIMINATION ON THE BASIS OF DISABILITY
To meet and carry out compliance with the nondiscrimination requirements of the Americans With Disabilities Act (ADA), it is the policy of the Procurement Division (within the State Department of General Services) to make every effort to ensure that its programs, activities, and services are available to all persons, including persons with disabilities.
For persons with a disability needing a reasonable accommodation to participate in the Procurement process, or for persons having questions regarding reasonable accommodations for the Procurement process, please contact the Procurement Division at (916) 375-4400 (main office); the Procurement Division TTY/TDD (telephone device for the deaf) or California Relay Service numbers which are listed below. You may also contact directly the Procurement Division contact person who is handling this procurement.
IMPORTANT: TO ENSURE THAT WE CAN MEET YOUR NEED, IT IS BEST THAT WE RECEIVE YOUR REQUEST AT LEAST 10 WORKING DAYS
BEFORE THE SCHEDULED EVENT (i.e., MEETING, CONFERENCE,
WORKSHOP, etc.) OR DEADLINE DUE-DATE FOR PROCUREMENT
DOCUMENTS.
The Procurement Division TTY telephone numbers are:
Sacramento Office: (916) 376-1891
Fullerton Office: (714) 773-2093
The California Relay Service Telephone Numbers are:
Voice: 1-800-735-2922 or 1-888-877-5379
TTY: 1-800-735-2929 or 1-888-877-5378
Speech-to-Speech: 1-800-854-7784
Updated 2/06/2018 15
DGS PD-401 IT (REVISED AND EFFECTIVE 6/21/22)
GENERAL PROVISIONS - INFORMATION TECHNOLOGY
1. Definitions: Unless otherwise specified in the Statement of Work, the following terms shall be given the meaning shown, unless context requires otherwise. a) "Acceptance Tests" means those tests performed during the Performance period which are intended to determine compliance of Equipment and Software with the specifications and all other Attachments incorporated herein by reference and to determine the reliability of the Equipment.
b) "Application Program" means a computer program which is intended to be executed for the purpose of performing useful work for the user of the information being processed.
Application programs are developed or otherwise acquired by the user of the Hardware/Software system, but they may be supplied by the Contractor. c) "Attachment" means a mechanical, electrical, or electronic interconnection to the Contractor-supplied Machine or System of Equipment, manufactured by other than the original Equipment manufacturer that is not connected by the Contractor. d) "Business entity" means any individual, business, partnership, joint venture, corporation, S-corporation, limited liability company, sole proprietorship, joint stock company, consortium, or other private legal entity recognized by statute. e) "Buyer" means the State's authorized contracting official. f) "Commercial Hardware" means Hardware developed or regularly used that: (i) has been sold, leased, or licensed to the general public; (i) has been offered for sale, lease, or license to the general public; (iii) has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, or license in time to satisfy the delivery requirements of this Contract; or (iv) satisfies a criterion expressed in (i), (i), or (iii) above and would require only minor modifications to meet the requirements of this Contract.
"Commercial Software" means Software developed or regularly used that: (i) has been sold, leased, or licensed to the general public; (ii) has been offered for sale, lease, or license to the general public; (iii) has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, or license in time to satisfy the delivery requirements of this Contract; or (iv) satisfies a criterion expressed in (i), (i), or (iii) above and would require only minor modifications to meet the requirements of this Contract.
h) "Contract" means this Contract or agreement (including any purchase order), by whatever name known or in whatever format used.
i) "Custom Software" means Software that does not meet the definition of Commercial Software.
"Contractor" means the Business Entity with whom the State enters into this Contract.
Contractor shall be synonymous with "supplier", "vendor" or other similar term. k) "Data Processing Subsystem" means a complement of Contractor furnished individual Machines, including the necessary controlling elements (or the functional equivalent), Operating Software and Software, if any, which are acquired to operate as an integrated group, and which are interconnected entirely by Contractor supplied power and/or signal
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GENERAL PROVISIONS - INFORMATION TECHNOLOGY
cables, e.g., direct access controller and drives, a cluster of terminals with their controller, etc.
1) "Data Processing System (System)" means the total complement of Contractor- furnished Machines, including one or more central processors (or instruction processors), Operating Software which are acquired to operate as an integrated group. "Deliverables" means Goods, Software, Information Technology, telecommunications technology, Hardware, and other items (e.g., reports) to be delivered pursuant to this Contract, including any such items furnished incident to the provision of services. n) "Designated CPU(s)" means for each product, if applicable, the central processing unit of the computers or the server unit, including any associated peripheral units. If no specific "Designated CPU(s)" are specified on the Contract, the term shall mean any and all CPUs located at the site specified therein.
0) "Documentation" means manuals and other printed materials necessary or useful to the State in its use or maintenance of the Equipment or Software provided hereunder.
Manuals and other printed materials customized for the State hereunder constitute Work Product if such materials are required by the Statement of Work. p) "Equipment" is an all-inclusive term which refers either to individual Machines or to a complete Data Processing System or Subsystem, including its Hardware and Operating Software (if any).
q) "Equipment Failure" is a malfunction in the Equipment, excluding all external factors, which prevents the accomplishment of the Equipment's intended function(s). If microcode or Operating Software residing in the Equipment is necessary for the proper operation of the Equipment, a failure of such microcode or Operating Software which prevents the accomplishment of the Equipment's intended functions shall be deemed to be an Equipment Failure.
г) "Facility Readiness Date" means the date specified in the Statement of Work by which the State must have the site prepared and available for Equipment delivery and installation.
s) "Goods" means all types of tangible personal property, including but not limited to materials, supplies, and Equipment (including computer and telecommunications Equipment).
t) "Hardware" usually refers to computer Equipment and is contrasted with Software. See also Equipment.
u) "Installation Date" means the date specified in the Statement of Work by which the Contractor must have the ordered Equipment ready (certified) for use by the State. v) "Information Technology" includes, but is not limited to, all electronic technology systems and services, automated information handling, System design and analysis, conversion of data, computer programming, information storage and retrieval, telecommunications which include voice, video, and data communications, requisite System controls, simulation, electronic commerce, and all related interactions between people and Machines.
DGS PD-401 (REVISED AND EFFECTIVE 6/21/22)
GENERAL PROVISIONS - INFORMATION TECHNOLOGY
W) "Machine" means an individual unit of Data Processing System or Subsystem, separately identified by a type and/or model number, comprised of but not limited to mechanical, electro-mechanical, and electronic parts, microcode, and special features installed thereon and including any necessary Software, e.g., central processing unit, memory module, tape unit, card reader, etc.
x) "Machine Alteration" means any change to a Contractor-supplied Machine which is not made by the Contractor, and which results in the Machine deviating from its physical, mechanical, electrical, or electronic (including microcode) design, whether or not additional devices or parts are employed in making such change. "Maintenance Diagnostic Routines" means the diagnostic programs customarily used by the Contractor to test Equipment for proper functioning and reliability. z) "Manufacturing Materials" means parts, tools, dies, jigs, fixtures, plans, drawings, and information produced or acquired, or rights acquired, specifically to fulfill obligations set forth herein.
aa) "Mean Time Between Failure (MTBF)" means the average expected or observed time between consecutive failures in a System or component.
bb) "Mean Time to Repair (MTTR)" means the average expected or observed time required to repair a System or component and return it to normal operation. cC) "Operating Software" means those routines, whether or not identified as Program Products, that reside in the Equipment and are required for the Equipment to perform its intended function(s), and which interface the operator, other Contractor-supplied programs, and user programs to the Equipment.
dd) "Operational Use Time" means for performance measurement purposes, that time during which Equipment is in actual operation by the State. For maintenance Operational Use Time purposes, that time during which Equipment is in actual operation and is not synonymous with power on time.
ee) "Period of Maintenance Coverage" means the period of time, as selected by the State, during which maintenance services are provided by the Contractor for a fixed monthly charge, as opposed to an hourly charge for services rendered. The Period of Maintenance Coverage consists of the Principal Period of Maintenance and any additional hours of coverage per day, and/or increased coverage for weekends and holidays.
"Preventive Maintenance" means that maintenance, performed on a scheduled basis by the Contractor, which is designed to keep the Equipment in proper operating condition. gg) "Principal Period of Maintenance" means any nine consecutive hours per day (usually between the hours of 7:00 a.m. and 6:00 p.m.) as selected by the State, including an official meal period not to exceed one hour, Monday through Friday, excluding holidays observed at the installation.
hh) "Programming Aids" means Contractor-supplied programs and routines executable on the Contractor's Equipment which assists a programmer in the development of applications including language processors, sorts, communications modules, data base
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GENERAL PROVISIONS - INFORMATION TECHNOLOGY
management systems, and utility routines (tape-to-disk routines, disk-to-print routines, etc.).
li) "Program Product" means programs, routines, subroutines, and related items which are proprietary to the Contractor and which are licensed to the State for its use, usually on the basis of separately stated charges and appropriate contractual provisions. "Remedial Maintenance" means that maintenance performed by the Contractor which results from Equipment (including Operating Software) failure, and which is performed as required, i.e., on an unscheduled basis.
kk) "Software" means an all-inclusive term which refers to any computer programs, routines, or subroutines supplied by the Contractor, including Operating Software, Programming Aids, Application Programs, and Program Products.
"Software Failure" means a malfunction in the Contractor-supplied Software, other than Operating Software, which prevents the accomplishment of work, even though the Equipment (including its Operating Software) may still be capable of operating properly.
For Operating Software failure, see definition of Equipment Failure. mm) "State" means the government of the State of California, its employees, and authorized representatives, including without limitation any department, agency, or other unit of the government of the State of California.
nn) "System" means the complete collection of Hardware, Software, and services as described in this Contract, integrated and functioning together, and performing in accordance with this Contract.
00) "U.S. Intellectual Property Rights" means intellectual property rights enforceable in the United States of America, including without limitation rights in trade secrets, copyrights, and U.S. patents.
2. CONTRACT FORMATION:
a) If this Contract results from a sealed bid offered in response to a solicitation conducted pursuant to Chapters 2 (commencing with Section 10290), 3 (commencing with Section 12100), and 3.6 (commencing with Section 12125) of Part 2 of Division 2 of the Public Contract Code (PCC), then Contractor's bid is a firm offer to the State which is accepted by the issuance of this Contract and no further action is required by either party. b) If this Contract results from a solicitation other than described in paragraph a), above, the Contractor's quotation or proposal is deemed a firm offer and this Contract document is the State's acceptance of that offer.
c) If this Contract resulted from a joint bid, it shall be deemed one indivisible Contract. Each such joint Contractor will be jointly and severally liable for the performance of the entire Contract. The State assumes no responsibility or obligation for the division of orders or purchases among joint Contractors.
3. COMPLETE INTEGRATION: This Contract, including any documents incorporated herein by express reference, is intended to be a complete integration and there are no prior or contemporaneous different or additional agreements pertaining to the subject matter of the Contract.
DGS PD-401 (REVISED AND EFFECTIVE 6/21/22)
GENERAL PROVISIONS - INFORMATION TECHNOLOGY
4. SEVERABILITY: The Contractor and the State agree that if any provision of this Contract is found to be illegal or unenforceable, such term or provision shall be deemed stricken and the remainder of the Contract shall remain in full force and effect. Either party having knowledge of such term or provision shall promptly inform the other of the presumed non-applicability of such provision.
5. INDEPENDENT CONTRACTOR: Contractor and the agents and employees of the Contractor, in the performance of this Contract, shall act in an independent capacity and not as officers or employees or agents of the State.
6. APPLICABLE LAW: This Contract shall be governed by and shall be interpreted in accordance with the laws of the State of California; venue of any action brought with regard to this Contract shall be in Sacramento County, Sacramento California. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Contract.
7. COMPLIANCE WITH STATUTES AND REGULATIONS:
a) The State and the Contractor warrants and certifies that in the performance of this Contract, it will comply with all applicable statutes, rules, regulations and orders of the United States and the State of California. The Contractor agrees to indemnify the State against any loss, cost, damage, or liability by reason of the Contractors violation of this provision.
b) The State will notify the Contractor of any such claim in writing and tender the defense thereof within a reasonable time; and
C) The Contractor will have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; provided that (i) when substantial principles of government or public law are involved, when litigation might create precedent affecting future State operations or liability, or when involvement of the State is otherwise mandated by law, the State may participate in such action at its own expense with respect to attorneys' fees and costs (but not liability; (i) where a settlement would impose liability on the State, affect principles of California government or public law, or impact the authority of the State, the Department of General Services will have the right to approve or disapprove any settlement or compromise, which approval will not unreasonably be withheld or delayed and (iii) the State will reasonably cooperate in the defense and in any related settlement negotiations.
d) If this Contract is in excess of $554,000, it is subject to the requirements of the World Trade Organization (WTO) Government Procurement Agreement (GPA).
To the extent that this Contract falls within the scope of Government Code Section 11135, the Contractor hereby agrees to respond to and resolve any complaint brought to its attention, regarding accessibility of its products or services.
8. CONTRACTOR'S POWER AND AUTHORITY: The Contractor warrants that it has full power and authority to grant the rights herein granted and will hold the State harmless from and against any loss, cost, liability, and expense (including reasonable attorney fees) arising out of any breach of this warranty. Further, the Contractor avers that it will not enter into any
DGS PD-401 (REVISED AND EFFECTIVE 6/21/22)
GENERAL PROVISIONS - INFORMATION TECHNOLOGY
arrangement with any third-party which might abridge any rights of the State under this Contract.
a) The State will notify the Contractor of any such claim in writing and tender the defense thereof within a reasonable time; and
b) The Contractor will have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; provided that (i) when substantial principles of government or public law are involved, when litigation might create precedent affecting future State operations or liability, or when involvement of the State is otherwise mandated by law, the State may participate in such action at its own expense with respect to attorneys' fees and costs (but not liability); (i) where a settlement would impose liability on the State, affect principles of California government or public law, or impact the authority of the State, the Department of General Services will have the right to approve or disapprove any settlement or compromise, which approval will not unreasonably be withheld or delayed; and (iii) the State will reasonably cooperate in the defense and in any related settlement negotiations.
9. ASSIGNMENT: This Contract shall not be assignable by the Contractor in whole or in part without the written consent of the State. The State's consent shall not be unreasonably withheld or delayed. For the purpose of this paragraph, the State will not unreasonably prohibit the Contractor from freely assigning its right to payment, provided that the Contractor remains responsible for its obligations hereunder.
10. WAIVER OF RIGHTS: Any action or inaction by the State or the failure of the State on any occasion, to enforce any right or provision of the Contract, shall not be construed to be a waiver by the State of its rights hereunder and shall not prevent the State from enforcing such provision or right on any future occasion. The rights and remedies of the State herein are cumulative and are in addition to any other rights or remedies that the State may have at law or in equity.
11. ORDER OF PRECEDENCE: In the event of any inconsistency between the articles, attachments, specifications, or provisions which constitute this Contract, the following order of precedence shall apply:
a) These General Provisions - Information Technology (In the instances provided herein where the paragraph begins: "Unless otherwise specified in the Statement of Work" provisions specified in the Statement of Work replacing these paragraphs shall take precedence over the paragraph referenced in these General Provisions); b) Contract form, i.e., Purchase Order STD 65, Standard Agreement STD 213, etc., and any amendments thereto;
c) Other Special Provisions;
d) Statement of Work, including any specifications incorporated by reference herein; e) Cost worksheets; and
f) All other attachments incorporated in the Contract by reference.
DGS PD-401 (REVISED AND EFFECTIVE 6/21/22)
GENERAL PROVISIONS - INFORMATION TECHNOLOGY
12. PACKING AND SHIPMENT:
a) All Goods are to be packed in suitable containers for protection in shipment and storage, and in accordance with applicable specifications. Each container of a multiple container shipment shall be identified to:
i. show the number of the container and the total number of containers in the shipment; and
il. the number of the container in which the packing sheet has been enclosed. b) All shipments by the Contractor or its subcontractors must include packing sheets identifying: the State's Contract number; item number; quantity and unit of measure; part number and description of the Goods shipped; and appropriate evidence of inspection, if required. Goods for different Contracts shall be listed on separate packing sheets. c) Shipments must be made as specified in this Contract, as it may be amended, or otherwise directed in writing by the State's Transportation Management Unit within the Department of General Services, Procurement Division.
13. TRANSPORTATION COSTS AND OTHER FEES OR EXPENSES: No charge for delivery, drayage, express, parcel post, packing, cartage, insurance, license fees, permits, cost of bonds, or for any other purpose will be paid by the State unless expressly included and itemized in the Contract.
a) The Contractor must strictly follow Contract requirements regarding Free on Board (F.O.B.), freight terms and routing instructions. The State may permit use of an alternate carrier at no additional cost to the State with advance written authorization of the Buyer. b) If "prepay and add" is selected, supporting freight bills are required when over $50, unless an exact freight charge is approved by the Transportation Management Unit within the Department of General Services Procurement Division and a waiver is granted. c) On "F.O.B. Shipping Point" transactions, should any shipments under the Contract be received by the State in a damaged condition and any related freight loss and damage claims filed against the carrier or carriers be wholly or partially declined by the carrier or carriers with the inference that damage was the result of the act of the shipper such as inadequate packaging or loading or some inherent defect in the Equipment and/or material, the Contractor, on request of the State, shall at Contractor's own expense assist the State in establishing carrier liability by supplying evidence that the Equipment and/or material was properly constructed, manufactured, packaged, and secured to withstand normal transportation conditions.
14. DELIVERY: The Contractor shall strictly adhere to the delivery and completion schedules specified in this Contract. Time, if stated as a number of days, shall mean calendar days unless otherwise specified. The quantities specified herein are the only quantities required. If the Contractor delivers in excess of the quantities specified herein, the State shall not be required to make any payment for the excess Deliverables and may return them to Contractor at the Contractor's expense or utilize any other rights available to the State at law or in equity.
DGS PD-401 (REVISED AND EFFECTIVE 6/21/22)
GENERAL PROVISIONS - INFORMATION TECHNOLOGY
15. SUBSTITUTIONS: Substitution of Deliverables may not be tendered without advance written consent of the Buyer. The Contractor shall not use any specification in lieu of those contained in the Contract without written consent of the Buyer.
16. INSPECTION, ACCEPTANCE AND REJECTION: Unless otherwise specified in the Statement of Work:
a) When acquiring Commercial Hardware or Commercial Software, the State shall rely on Contractor's existing quality assurance system as a substitute for State inspection and testing. For all other acquisitions, Contractor and its subcontractors will provide and maintain a quality assurance system acceptable to the State covering Deliverables and services under this Contract and will tender to the State only those Deliverables that have been inspected and found to conform to this Contract's requirements. The Contractor will keep records evidencing inspections and their result and will make these records available to the State during Contract performance and for three years after final payment. The Contractor shall permit the State to review procedures, practices, processes, and related documents to determine the acceptability of the Contractor's quality assurance System or other similar business practices related to performance of the Contract.
b) All Deliverables may be subject to inspection and test by the State or its authorized representatives.
The Contractor and its subcontractors shall provide all reasonable facilities for the safety and convenience of inspectors at no additional cost to the State. The Contractor shall furnish to inspectors all information and data as may be reasonably required to perform their inspection.
d) Subject to subsection 16 (a) above, all Deliverables may be subject to final inspection, test and acceptance by the State at destination, notwithstanding any payment or inspection at source.
e) The State shall give written notice of rejection of Deliverables delivered or services performed hereunder within a reasonable time after receipt of such Deliverables or performance of such services. Such notice of rejection will state the respects in which the Deliverables do not substantially conform to their specifications. If the State does not provide such notice of rejection within fifteen (15) days of delivery for purchases of Commercial Hardware or Commercial Software or thirty (30) days of delivery for all other purchases, such Deliverables and services will be deemed to have been accepted.
Acceptance by the State will be final and irreversible, except as it relates to latent defects, fraud, and gross mistakes amounting to fraud. Acceptance shall not be construed to waive any warranty rights that the State might have at law or by express reservation in this Contract with respect to any nonconformity.
f) Unless otherwise specified in the Statement of Work, title to Equipment shall remain with the Contractor and assigns, if any, until such time as successful acceptance testing has been achieved. Title to a special feature installed on a Machine and for which only a
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GENERAL PROVISIONS - INFORMATION TECHNOLOGY
single installation charge was paid shall pass to the State at no additional charge, together with title to the Machine on which it was installed.
17. SAMPLES:
Samples of items may be required by the State for inspection and specification testing and must be furnished free of expense to the State. The samples furnished must be identical in all respects to the products bid and/or specified in the Contract. b) Samples, if not destroyed by tests, may, upon request made at the time the sample is furnished, be returned at the Contractor's expense.
18. WARRANTY:
a) Unless otherwise specified in the Statement of Work, the warranties in this subsection a) begin upon delivery of the goods or services in question and end one (1) year thereafter.
The Contractor warrants that (i) Deliverables and services furnished hereunder will substantially conform to the requirements of this Contract (including without limitation all descriptions, specifications, and drawings identified in the Statement of Work), and (ii) the Deliverables will be free from material defects in materials and workmanship. Where the parties have agreed to design specifications (such as a Detailed Design Document) and incorporated the same or equivalent in the Statement of Work directly or by reference, the Contractor will warrant that it's Deliverables provide all material functionality required thereby. In addition to the other warranties set forth herein, where the Contract calls for delivery of Commercial Software, the Contractor warrants that such Software will perform in accordance with its license and accompanying Documentation. The State's approval of designs or specifications furnished by Contractor shall not relieve the Contractor of its obligations under this warranty.
b) The Contractor warrants that Deliverables furnished hereunder (i) will be free, at the time of delivery, of harmful code (i.e., computer viruses, worms, trap doors, time bombs, disabling code, or any similar malicious mechanism designed to interfere with the intended operation of, or cause damage to, computers, data, or Software); and (ii) will not infringe or violate any U.S. Intellectual Property Right. Without limiting the generality of the foregoing, if the State believes that harmful code may be present in any Commercial Software delivered hereunder, the Contractor will, upon the State's request, provide a new or clean install of the Software.
C) Unless otherwise specified in the Statement of Work:
i. The Contractor does not warrant that any Software provided hereunder is error- free or that it will run without immaterial interruption. il. The Contractor does not warrant and will have no responsibility for a claim to the extent that it arises directly from (A) a modification made by the State, unless such modification is approved or directed by the Contractor, (B) use of Software in combination with or on products other than as specified by the Contractor, or (C) misuse by the State.
iii. Where the Contractor resells Commercial Hardware or Commercial Software it purchased from a third-party, Contractor, to the extent it is legally able to do so,
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will pass through any such third-party warranties to the State and will reasonably cooperate in enforcing them. Such warranty pass-through will not relieve the Contractor from Contractor's warranty obligations set forth above. d) All warranties, including special warranties specified elsewhere herein, shall inure to the State, its successors, assigns, customer agencies, and governmental users of the Deliverables or services.
Except as may be specifically provided in the Statement of Work or elsewhere in this Contract, for any breach of the warranties provided in this Section, the State's exclusive remedy and the Contractor's sole obligation will be limited to:
i. re-performance, repair, or replacement of the nonconforming Deliverable (including without limitation an infringing Deliverable) or service; or ii. should the State in its sole discretion consent, refund of all amounts paid by the State for the nonconforming Deliverable or service and payment to the State of any additional amounts necessary to equal the State's Cost to Cover. "Cost to Cover" means the cost, properly mitigated, of procuring Deliverables or services of equivalent capability, function, and performance. The payment obligation in subsection (e)(i) above will not exceed the limits on the Contractor's liability set forth in the Section entitled "Limitation of Liability."
EXCEPT FOR THE EXPRESS WARRANTIES SPECIFIED IN THIS SECTION, THE
CONTRACTOR MAKES NO WARRANTIES EITHER EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
19. SAFETY AND ACCIDENT PREVENTION: In performing work under this Contract on State premises, the Contractor shall conform to any specific safety requirements contained in the Contract or as required by law or regulation. The Contractor shall take any additional precautions as the State may reasonably require for safety and accident prevention purposes.
Any violation of such rules and requirements, unless promptly corrected, shall be grounds for termination of this Contract in accordance with the default provisions hereof.
20. INSURANCE: The Contractor shall maintain all commercial general liability insurance, workers' compensation insurance and any other insurance required under the Contract. The Contractor shall furnish insurance certificate(s) evidencing required insurance coverage acceptable to the State, including endorsements showing the State as an "additional insured" if required under the Contract. Any required endorsements requested by the State must be separately provided; merely referring to such coverage on the certificates(s) is insufficient for this purpose. When performing work on state owned or controlled property, Contractor shall provide a waiver of subrogation in favor of the State for its workers' compensation policy.
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21. TERMINATION FOR NON-APPROPRIATION OF FUNDS:
a) If the term of this Contract extends into fiscal years subsequent to that in which it is approved, such continuation of the Contract is contingent on the appropriation of funds for such purpose by the Legislature. If funds to affect such continued payment are not appropriated, the Contractor agrees to take back any affected Deliverables furnished under this Contract, terminate any services supplied to the State under this Contract, and relieve the State of any further obligation thereof
b) The State agrees that if it appears likely that subsection a) above will be invoked, the State and Contractor shall agree to take all reasonable steps to prioritize work and Deliverables and minimize the incurrence of costs prior to the expiration of funding for this Contract.
C) THE STATE AGREES THAT IF PARAGRAPH a) ABOVE IS INVOKED, COMMERCIAL
HARDWARE AND SOFTWARE THAT HAS NOT BEEN PAID FOR SHALL BE
RETURNED TO THE CONTRACTOR IN SUBSTANTIALLY THE SAME CONDITION IN WHICH DELIVERED TO THE STATE, SUBJECT TO NORMAL WEAR AND TEAR. THE
STATE FURTHER AGREES TO PAY FOR PACKING, CRATING, TRANSPORTATION
TO THE CONTRACTOR'S NEAREST FACILITY AND FOR REIMBURSEMENT TO THE
CONTRACTOR FOR EXPENSES INCURRED FOR THEIR ASSISTANCE IN SUCH PACKING AND CRATING.
22. TERMINATION FOR THE CONVENIENCE OF THE STATE:
a) The State may terminate performance of work under this Contract for its convenience in whole or, from time to time, in part, if the Department of General Services, Deputy Director Procurement Division, or designee, determines that a termination is in the State's interest. The Department of General Services, Deputy Director, Procurement Division, or designee shall terminate by delivering to the Contractor a Notice of Termination specifying the extent of termination and the effective date thereof.
After receipt of a Notice of Termination, and except as directed by the State, the Contractor shall immediately proceed with the following obligations, as applicable, regardless of any delay in determining or adjusting any amounts due under this clause.
The Contractor shall:
i. Stop work as specified in the Notice of Termination. ii. Place no further subcontracts for materials, services, or facilities, except as necessary to complete the continuing portion of the Contract. iii. Terminate all subcontracts to the extent they relate to the work terminated. iv. Settle all outstanding liabilities and termination settlement proposals arising from the termination of subcontracts.
c) After termination, the Contractor shall submit a final termination settlement proposal to the State in the form and with the information prescribed by the State. The Contractor shall submit the proposal promptly, but no later than 90 days after the effective date of termination, unless a different time is provided in the Statement of Work or in the Notice of Termination.
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d) The Contractor and the State may agree upon the whole or any part of the amount to be paid as requested under subsection (c) above.
e) Unless otherwise set forth in the Statement of Work, if the Contractor and the State fail to agree on the amount to be paid because of the termination for convenience, the State will pay the Contractor the following amounts; provided that in no event will total payments exceed the amount payable to the Contractor if the Contract had been fully performed:
i. The Contract price for Deliverables or services accepted or retained by the State and not previously paid for, adjusted for any savings on freight and other charges; and
ii. The total of:
A. The reasonable costs incurred in the performance of the work terminated, including initial costs and preparatory expenses allocable thereto, but excluding any cost attributable to Deliverables or services paid or to be paid;
B. The reasonable cost of settling and paying termination settlement proposals under terminated subcontracts that are properly chargeable to the terminated portion of the Contract; and
C. Reasonable storage, transportation, demobilization, unamortized overhead and capital costs, and other costs reasonably incurred by the Contractor in winding down and terminating its work.
f) The Contractor will use generally accepted accounting principles, or accounting principles otherwise agreed to in writing by the parties, and sound business practices in determining all costs claimed, agreed to, or determined under this clause.
23. TERMINATION FOR DEFAULT:
a) The State may, subject to the clause titled "Force Majeure" and to sub-section d) below, by written notice of default to the Contractor, terminate this Contract in whole or in part if the Contractor fails to:
i. Deliver the Deliverables or perform the services within the time specified in the Contract or any amendment thereto;
ii. Make progress, so that the lack of progress endangers performance of this Contract; or
iii. Perform any of the other provisions of this Contract. b) The State's right to terminate this Contract under sub-section a) above, may be exercised only if the failure constitutes a material breach of this Contract and if the Contractor does not cure such failure within the time frame stated in the State's cure notice, which in no event will be less than fifteen (15) days, unless the Statement of Work calls for a different period.
If the State terminates this Contract in whole or in part pursuant to this Section, it may acquire, under terms and in the manner the Buyer considers appropriate, Deliverables or services similar to those terminated, and the Contractor will be liable to the State for any excess costs for those Deliverables and services, including without limitation costs third-
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party vendors charge for Manufacturing Materials (but subject to the clause entitled "Limitation of Liability"). However, the Contractor shall continue the work not terminated. d) If the Contract is terminated for default, the State may require the Contractor to transfer title, or in the case of licensed Software, license, and deliver to the State, as directed by the Buyer, any:
i. completed Deliverables,
partially completed Deliverables, and,
ill. subject to provisions of sub-section e) below, Manufacturing Materials related to the terminated portion of this Contract. Nothing in this sub-section d) Will be construed to grant the State rights to Deliverables that it would not have received had this Contract been fully performed. Upon direction of the Buyer, the Contractor shall also protect and preserve property in its possession in which the State has an interest.
e) The State shall pay Contract price for completed Deliverables delivered and accepted and items the State requires the Contractor to transfer under section (d) above. Unless the Statement of Work calls for different procedures or requires no-charge delivery of materials, the Contractor and Buyer shall attempt to agree on the amount of payment for Manufacturing Materials and other materials delivered and accepted by the State for the protection and preservation of the property; provided that where the Contractor has billed the State for any such materials, no additional charge will apply. Failure to agree will constitute a dispute under the Disputes clause. The State may withhold from these amounts any sum it determines to be necessary to protect the State against loss because of outstanding liens or claims of former lien holders.
f) If, after termination, it is determined by a final decision that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the State.
g) Both parties, State and Contractor, upon any termination for default, have a duty to mitigate the damages suffered by it.
h) The rights and remedies of the State in this clause are in addition to any other rights and remedies provided by law or under this Contract and are subject to the clause titled "Limitation of Liability."
24. FORCE MAJEURE: Except for defaults of subcontractors at any tier, the Contractor shall not be liable for any excess costs if the failure to perform the Contract arises from causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include, but are not limited to:
a) Acts of God or of the public enemy, and
b) Acts of the federal or State government in either its sovereign or contractual capacity.
If the failure to perform is caused by the default of a subcontractor at any tier, and if the cause of the default is beyond the control of both the Contractor and subcontractor, and without the fault or negligence of either, the Contractor shall not be liable for any excess costs for failure to perform.
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25. RIGHTS AND REMEDIES OF STATE FOR DEFAULT:
a) In the event any Deliverables furnished, or services provided by the Contractor in the performance of the Contract should fail to conform to the requirements herein, or to the sample submitted by the Contractor, the State may reject the same, and it shall become the duty of the Contractor to reclaim and remove the item promptly or to correct the performance of services, without expense to the State, and immediately replace all such rejected items with others conforming to the Contract.
b) In addition to any other rights and remedies the State may have, the State may require the Contractor, at Contractor's expense, to ship Deliverables via air freight or expedited routing to avoid or minimize actual or potential delay if the delay is the fault of the Contractor.
c) In the event of the termination of the Contract, either in whole or in part, by reason of default or breach by the Contractor, any loss or damage sustained by the State in procuring any items which the Contractor agreed to supply shall be borne and paid for by the Contractor (but subject to the clause entitled "Limitation of Liability").
The State reserves the right to offset the reasonable cost of all damages caused to the State against any outstanding invoices or amounts owed to the Contractor or to make a claim against the Contractor.
26. LIMITATION OF LIABILITY:
a) Except as may be otherwise approved by the Department of General Services Deputy Director, Procurement Division or their designee, Contractor's liability for damages to the State for any cause whatsoever, and regardless of the form of action, whether in Contract or in tort, shall be limited to the Purchase Price. For purposes of this sub-section a), "Purchase Price" will mean the aggregate Contract price; except that, with respect to a Contract under which multiple purchase orders will be issued (e.g., a Master Agreement or Multiple Award Schedule contract), "Purchase Price" will mean the total price of the purchase order for the Deliverable(s) or service(s) that gave rise to the loss, such that the Contractor will have a separate limitation of liability for each purchase order. b) The foregoing limitation of liability shall not apply (i) to any liability under the General Provisions entitled "Compliance with Statutes and Regulations"; (ii) to liability under the General Provisions, entitled "Patent, Copyright, and Trade Secret Indemnity" or to any other liability (including without limitation indemnification obligations) for infringement of third-party intellectual property rights; (iii) to claims arising under provisions herein calling for indemnification for third-party claims against the State for death, bodily injury to persons or damage to real or tangible personal property caused by the Contractor's negligence or willful misconduct; or (iv) to costs or attorney's fees that the State becomes entitled to recover as a prevailing party in any action. c) The State's liability for damages for any cause whatsoever, and regardless of the form of action, whether in Contract or in tort, shall be limited to the Purchase Price, as that term is defined in subsection a) above. Nothing herein shall be construed to waive or limit the State's sovereign immunity or any other immunity from suit provided by law.
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In no event will either the Contractor or the State be liable for consequential, incidental, indirect, special, or punitive damages, even if notification has been given as to the possibility of such damages, except (i) to the extent that the Contractor's liability for such damages is specifically set forth in the Statement of Work or (ii) to the extent that the Contractor's liability for such damages arises out of sub- section b)(i), b)(i), or b)(iv) above.
27. CONTRACTOR'S LIABILITY FOR INJURY TO PERSONS OR DAMAGE TO PROPERTY:
a) The Contractor shall be liable for damages arising out of injury to the person and/or damage to the property of the State, employees of the State, persons designated by the State for training, or any other person(s) other than agents or employees of the Contractor, designated by the State for any purpose, prior to, during, or subsequent to delivery, installation, acceptance, and use of the Deliverables either at the Contractor's site or at the State's place of business, provided that the injury or damage was caused by the fault or negligence of the Contractor.
The Contractor shall not be liable for damages arising out of or caused by an alteration or an Attachment not made or installed by the Contractor, or for damage to alterations or Attachments that may result from the normal operation and maintenance of the Deliverables provided by the Contractor during the Contract.
28. INDEMNIFICATION: The Contractor agrees to indemnify, defend and save harmless the State, its officers, agents and employees from any and all third-party claims, costs (including without limitation reasonable attorneys' fees), and losses due to the injury or death of any individual, or the loss or damage to any real or tangible personal property, resulting from the willful misconduct or negligent acts or omissions of the Contractor or any of its affiliates, agents, subcontractors, employees, suppliers, or laborers furnishing or supplying work, services, materials, or supplies in connection with the performance of this Contract. Such defense and payment will be conditional upon the following:
a) The State will notify the Contractor of any such claim in writing and tender the defense thereof within a reasonable time; and
b) The Contractor will have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; provided that (i) when substantial principles of government or public law are involved, when litigation might create precedent affecting future State operations or liability, or when involvement of the State is otherwise mandated by law, the State may participate in such action at its own expense with respect to attorneys' fees and costs (but not liability); (i) where a settlement would impose liability on the State, affect principles of California government or public law, or impact the authority of the State, the Department of General Services will have the right to approve or disapprove any settlement or compromise, which approval will not unreasonably be withheld or delayed; and (iii) the State will reasonably cooperate in the defense and in any related settlement negotiations.
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29. INVOICES: Unless otherwise specified, invoices shall be sent to the address set forth herein.
Invoices shall be submitted in triplicate and shall include the Contract number; release order number (if applicable); item number; unit price, extended item price and invoice total amount.
State sales tax and/or use tax shall be itemized separately and added to each invoice as applicable.
30. REQUIRED PAYMENT DATE: Payment will be made in accordance with the provisions of the California Prompt Payment Act, Government Code Section 927 et seq. Unless expressly exempted by statute, the Act requires State agencies to pay properly submitted, undisputed invoices not more than 45 days after (i) the date of acceptance of Deliverables or performance of services; or (i) receipt of an undisputed invoice, whichever is later.
31. TAXES: Unless otherwise required by law, the State of California is exempt from Federal excise taxes. The State will only pay for any State or local sales or use taxes on the services rendered or Goods supplied to the State pursuant to this Contract.
32. NEWLY MANUFACTURED GOODS: All Goods furnished under this Contract shall be newly manufactured Goods or certified as new and warranted as new by the manufacturer; used or reconditioned Goods are prohibited, unless otherwise specified.
33. CONTRACT MODIFICATION: No amendment or variation of the terms of this Contract shall be valid unless made in writing, signed by the parties, and approved as required. No oral understanding or agreement not incorporated in the Contract is binding on any of the parties.
34. CONFIDENTIALITY OF DATA: All financial statistical, personal, technical and other data and information relating to the State's operation which are designated confidential by the state and made available to the Contractor in order to carry out this Contract, or which become available to the Contractor in carrying out this Contract, shall be protected by the Contractor from unauthorized use and disclosure through the observance of the same or more effective procedural requirements as are applicable to the State. The identification of all such confidential data and information as well as the State's procedural requirements for protection of such data and information from unauthorized use and disclosure shall be provided by the State in writing to the Contractor. If the methods and procedures employed by the Contractor for the protection of the Contractor's data and information are deemed by the State to be adequate for the protection of the State's confidential information, such methods and procedures may be used, with the written consent of the State, to carry out the intent of this paragraph. The Contractor shall not be required under the provisions of this paragraph to keep confidential any data or information which is or becomes publicly available, is already rightfully in the Contractor's possession without obligation of confidentiality, is independently developed by the Contractor outside the scope of this Contract or is rightfully obtained from third parties.
35. NEWS RELEASES: Unless otherwise exempted, news releases, endorsements, advertising, and social media content pertaining to this Contract shall not be made without prior written approval of the Department of General Services.
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36. DOCUMENTATION:
a) The Contractor agrees to provide to the State, at no charge, all Documentation as described within the Statement of Work, and updated versions thereof, which are necessary or useful to the State in its use of the Equipment or Software provided hereunder. The Contractor agrees to provide additional Documentation at prices not in excess of charges made by the Contractor to its other customers for similar Documentation.
b) If the Contractor is unable to perform maintenance or the State desires to perform its own maintenance on Equipment purchased under this Contract, then upon written notice by the State the Contractor will provide at Contractor's then current rates and fees adequate and reasonable assistance including relevant Documentation to allow the State to maintain the Equipment based on the Contractor's methodology. The Contractor agrees that the State may reproduce such Documentation for its own use in maintaining the Equipment. If the Contractor is unable to perform maintenance, the Contractor agrees to license any other Contractor that the State may have hired to maintain the Equipment to use the above noted Documentation. The State agrees to include the Contractor's copyright notice on any such Documentation reproduced, in accordance with copyright instructions to be provided by the Contractor.
37. RIGHTS IN WORK PRODUCT:
a) All inventions, discoveries, intellectual property, technical communications, and records originated or prepared by the Contractor pursuant to this Contract including papers, reports, charts, computer programs, and other Documentation or improvements thereto, and including the Contractor's administrative communications and records relating to this Contract (collectively, the "Work Product"), shall be the Contractor's exclusive property.
The provisions of this sub-section a) may be revised in a Statement of Work.
Software and other materials developed or otherwise obtained by or for the Contractor or its affiliates independently of this Contract or applicable purchase order ("Pre-Existing Materials") do not constitute Work Product. If the Contractor creates derivative works of Pre-Existing Materials, the elements of such derivative works created pursuant to this Contract constitute Work Product, but other elements do not. Nothing in this Section 37 will be construed to interfere with the Contractor's or its affiliates' ownership of Pre- Existing Materials.
The State will have Government Purpose Rights to the Work Product as Deliverable or delivered to the State hereunder. "Government Purpose Rights" are the unlimited, irrevocable, worldwide, perpetual, royalty-free, non-exclusive rights, and licenses to use, modify, reproduce, perform, release, display, create derivative works from, and disclose the Work Product. "Government Purpose Rights" also include the right to release or disclose the Work Product outside the State for any State government purpose and to authorize recipients to use, modify, reproduce, perform, release, display, create derivative works from, and disclose the Work Product for any State government purpose. Such recipients of the Work Product may include, without limitation, State Contractors,
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California local governments, the U.S. federal government, and the State and local governments of other states. "Government Purpose Rights" do not include any rights to use, modify, reproduce, perform, release, display, create derivative works from, or disclose the Work Product for any commercial purpose.
d) The ideas, concepts, know-how, or techniques relating to data processing, developed during the course of this Contract by the Contractor or jointly by the Contractor and the State may be used by either party without obligation of notice or accounting. e) This Contract shall not preclude the Contractor from developing materials outside this Contract that are competitive, irrespective of their similarity to materials which might be delivered to the State pursuant to this Contract.
38. SOFTWARE LICENSE: Unless otherwise specified in the Statement of Work, the Contractor hereby grants to the State and the State accepts from the Contractor, subject to the terms and conditions of this Contract, a perpetual, irrevocable, royalty-free, non-exclusive, license to use the Software Products in this Contract (hereinafter referred to as "Software Products"). a) The State may use the Software Products in the conduct of its own business, and any division thereof.
b) The license granted above authorizes the State to use the Software Products in machine- readable form on the Computer System located at the site(s) specified in the Statement of Work. Said Computer System and its associated units (collectively referred to as CPU) are as designated in the Statement of Work. If the designated CPU is inoperative due to malfunction, the license herein granted shall be temporarily extended to authorize the State to use the Software Products, in machine-readable form, on any other State CPU until the designated CPU is returned to operation.
C) By prior written notice, the State may redesignate the CPU in which the Software Products are to be used provided that the redesignated CPU is substantially similar in size and scale at no additional cost. The redesignation shall not be limited to the original site and will be effective upon the date specified in the notice of redesignation.
Acceptance of Commercial Software (including third-party Software) and Custom Software will be governed by the terms and conditions of this Contract.
39. PROTECTION OF PROPRIETARY SOFTWARE AND OTHER PROPRIETARY DATA:
a) The State agrees that all material appropriately marked or identified in writing as proprietary and furnished hereunder are provided for the State's exclusive use for the purposes of this Contract only. All such proprietary data shall remain the property of the Contractor. The State agrees to take all reasonable steps to ensure that such proprietary data are not disclosed to others, without prior written consent of the Contractor, subject to the California Public Records Act.
b) The State will ensure, prior to disposing of any media, that any licensed materials contained thereon have been erased or otherwise destroyed. c) The State agrees that it will take appropriate action by instruction, agreement or otherwise with its employees or other persons permitted access to licensed software and other
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proprietary data to satisfy its obligations in this Contract with respect to use, copying, modification, protection and security of proprietary software and other proprietary data.
40. RIGHT TO COPY OR MODIFY:
a) Any Software Product provided by the Contractor in machine-readable form may be copied, in whole or in part, in printed or machine-readable form for use by the State with the designated CPU, to perform one-time benchmark tests, for archival or emergency restart purposes, to replace a worn copy, to understand the contents of such machine- readable material, or to modify the Software Product as provided below; provided, however, that no more than the number of printed copies and machine-readable copies as specified in the Statement of Work will be in existence under this Contract at any time without prior written consent of the Contractor. Such consent shall not be unreasonably withheld by the Contractor. The original, and any copies of the Software Product, in whole or in part, which are made hereunder shall be the property of the Contractor. b) The State may modify any non-personal computer Software Product, in machine-readable form, for its own use and merge it into other program material. Any portion of the Software Product included in any merged program material shall be used only on the designated CPUs and shall be subject to the terms and conditions of the Contract.
41. FUTURE RELEASES: Unless otherwise specifically provided in this Contract, or the Statement of Work, if improved versions, e.g., patches, bug fixes, updates, or releases, of any Software Product are developed by the contractor, and are made available to other licensees, they will be made available to the State at no additional cost only if such are made available to other licensees at no additional cost. If the Contractor offers new versions or upgrades to the Software Product, they shall be made available to the State at the State's option at a price no greater than the Contract price plus a price increase proportionate to the increase from the list price of the original version to that of the new version, if any. If the Software Product has no list price, such price increase will be proportionate to the increase in average price from the original to the new version, if any, as estimated by the Contractor in good faith.
42. ENCRYPTION/CPU ID AUTHORIZATION CODES:
a) When Encryption/CPU Identification (ID) authorization codes are required to operate the Software Products, the Contractor will provide all codes to the State with delivery of the Software.
b) In case of inoperative CPU, the Contractor will provide a temporary encryption/CPU ID authorization code to the State for use on a temporarily authorized CPU until the designated CPU is returned to operation.
c) When changes in designated CPUs occur, the State will notify the Contractor via telephone and/or facsimile/e-mail of such change. Upon receipt of such notice, the Contractor will issue via telephone and/or facsimile/e-mail to the State within 24 hours, a temporary encryption ID authorization code for use on the newly designated CPU until such time as permanent code is assigned.
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43. PATENT, COPYRIGHT AND TRADE SECRET INDEMNITY:
a) Contractor will indemnify, defend, and save harmless the State, its officers, agents, and employees, from any and all third-party claims, costs (including without limitation reasonable attorneys' fees), and losses for infringement or violation of any U.S.
Intellectual Property Right by any product or service provided hereunder. With respect to claims arising from computer Hardware or Software manufactured by a third-party and sold by Contractor as a reseller, Contractor will pass through to the State such indemnity rights as it receives from such third-party ("Third Party Obligation"') and will cooperate in enforcing them; provided that if the third-party manufacturer fails to honor the Third-Party Obligation, Contractor will provide the State with indemnity protection equal to that called for by the Third-Party Obligation, but in no event greater than that called for in the first sentence of this Section). The provisions of the preceding sentence apply only to third- party computer Hardware or Software sold as a distinct unit and accepted by the State.
Unless a Third-Party Obligation provides otherwise, the defense and payment obligations set forth in this Section will be conditional upon the following:
i. The State will notify the Contractor of any such claim in writing and tender the defense thereof within a reasonable time; and
ii. The Contractor will have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; provided that (a) when substantial principles of government or public law are involved, when litigation might create precedent affecting future State operations or liability, or when involvement of the State is otherwise mandated by law, the State may participate in such action at its own expense with respect to attorneys' fees and costs (but not liability); (b) where a settlement would impose liability on the State, affect principles of California government or public law, or impact the authority of the State, the Department of General Services will have the right to approve or disapprove any settlement or compromise which approval will not unreasonably be withheld or delayed; and (c) the State will reasonably cooperate in the defense and in any related settlement negotiations.
b) Should the Deliverables, or the operation thereof, become, or in the Contractor's opinion are likely to become, the subject of a claim of infringement or violation of a U.S. Intellectual Property Right, the State shall permit the Contractor, at its option and expense, either to procure for the State the right to continue using the Deliverables, or to replace or modify the same so that they become non-infringing. If none of these options can reasonably be taken, or if the use of such Deliverables by the State shall be prevented by injunction the Contractor agrees to take back such Deliverables and make every reasonable effort to assist the State in procuring substitute Deliverables. If, in the sole opinion of the State, the return of such infringing Deliverables makes the retention of other Deliverables acquired from the
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Contractor under this Contract impractical, the State
shall then have the option of terminating such Contracts, or applicable portions thereof, without penalty or termination charge. The Contractor agrees to take back such
Deliverables and refund any sums the State has paid the Contractor less any reasonable amount for use or damage.
C) The Contractor shall have no liability to the State under any provision of this clause with respect to any claim of patent, copyright or trade secret infringement which is based upon:
i. The combination or utilization of Deliverables furnished hereunder with Equipment, Software, or devices not made or furnished by the Contractor; or,
ii. The operation of Equipment furnished by the Contractor under the control of any Operating Software other than, or in addition to, the current version of Contractor-supplied Operating Software; or
ili. The modification initiated by the State, or a third-party at the State's direction, of any Deliverable furnished hereunder; or
iv. The combination or utilization of Software furnished hereunder with non-contractor supplied Software.
d) The Contractor certifies that it has appropriate systems and controls in place to ensure that State funds will not be used in the performance of this Contract for the acquisition, operation, or maintenance of computer Software in violation of copyright laws.
44. DISPUTES:
a) The parties shall deal in good faith and attempt to resolve potential disputes informally. If the dispute persists, the Contractor shall submit to the contracting Department Director or designee a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to or involving this Contract. Contractor's written demand shall be fully supported by factual information, and if such demand involves a cost adjustment to the Contract, the Contractor shall include with the demand a written statement signed by an authorized person indicating that the demand is made in good faith, that the supporting data are accurate and complete and that the amount requested accurately reflects the Contract adjustment for which Contractor believes the State is liable. The contracting Department Director or designee shall have 30 days after receipt of Contractor's written demand invoking this Section "Disputes" to render a written decision. If a written decision is not rendered within 30 days after receipt of the Contractor's demand, it shall be deemed a decision adverse to the Contractor's contention. If the Contractor is not satisfied with the decision of the contracting
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b) Department Director or designee, the Contractor may appeal the decision, in writing, within 15 days of its issuance (or the expiration of the 30 day period in the event no decision is rendered by the contracting department), to the Department of General Services, Deputy Director, Procurement Division, who shall have 45 days to render a final decision. If the Contractor does not appeal the decision of the contracting Department Director or designee, the decision shall be conclusive and binding regarding the dispute and the Contractor shall be barred from commencing an action in court, or with the Victims Compensation Government Claims Board, for failure to exhaust Contractor's administrative remedies.
b) Pending the final resolution of any dispute arising under, related to, or involving this Contract, Contractor agrees to diligently proceed with the performance of this Contract, including the delivery of Goods or providing of services in accordance with the State's instructions regarding this Contract. Contractor's failure to diligently proceed in accordance with the State's instructions regarding this Contract shall be considered a material breach of this Contract.
c) Any final decision of the State shall be expressly identified as such, shall be in writing, and shall be signed by the Deputy Director, Procurement Division if an appeal was made.
If the Deputy Director, Procurement Division fails to render a final decision within 45 days after receipt of the Contractor's appeal for a final decision, it shall be deemed a final decision adverse to the Contractor's contentions. The State's final decision shall be conclusive and binding regarding the dispute unless the Contractor commences an action in a court of competent jurisdiction to contest such decision within 90 days following the date of the final decision or one (1) year following the accrual of the cause of action, whichever is later.
For disputes involving purchases made by the Department of General Services, Procurement Division, the Contractor shall submit to the Department Director or designee a written demand for a final decision, which shall be fully supported in the manner described in subsection a) above. The Department Director or designee shall have 30 days to render a final decision. If a final decision is not rendered within 30 days after receipt of the Contractor's demand, it shall be deemed a final decision adverse to the Contractor's contention. The final decision shall be conclusive and binding regarding the dispute unless the Contractor commences an action in a court of competent jurisdiction to contest such decision within 90 days following the date of the final decision or one (1) year following the accrual of the cause of action, whichever is later. e) The dates of decision and appeal in this section may be modified by mutual consent, as applicable, excepting the time to commence an action in a court of competent jurisdiction.
45. STOP WORK:
a) The State may, at any time, by written Stop Work Order to the Contractor, require the Contractor to stop all, or any part, of the work called for by this Contract for a period up to 45 days after the Stop Work Order is delivered to the Contractor, and for any further period to which the parties may agree. The Stop Work Order shall be specifically
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identified as such and shall indicate it is issued under this clause. Upon receipt of the Stop Work Order, the Contractor shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the Stop Work Order during the period of work stoppage. Within a period of 45 days after a Stop Work Order is delivered to the Contractor, or within any extension of that period to which the parties shall have agreed, the State shall either:
i. Cancel the Stop Work Order; or
ii. Terminate the work covered by the Stop Work Order as provided for in the termination for default or the termination for convenience clause of this Contract. b) If a Stop Work Order issued under this clause is canceled or the period of the Stop Work Order or any extension thereof expires, the Contractor shall resume work. The State shall make an equitable adjustment in the delivery schedule, the Contract price, or both, and the Contract shall be modified, in writing, accordingly, if:
i. The Stop Work Order results in an increase in the time required for, or in the Contractor's cost properly allocable to the performance of any part of this Contract; and
ii. The Contractor asserts its right to an equitable adjustment within 60 days after the end of the period of work stoppage; provided, that if the State decides the facts justify the action, the State may receive and act upon a proposal submitted at any time before final payment under this Contract.
c) If a Stop Work Order is not canceled and the work covered by the Stop Work Order is terminated in accordance with the provision entitled Termination for the Convenience of the State, the State shall allow reasonable costs resulting from the Stop Work Order in arriving at the termination settlement.
d) The State shall not be liable to the Contractor for loss of profits because of a Stop Work Order issued under this clause.
46. EXAMINATION AND AUDIT: The Contractor agrees that the State or its designated representative shall have the right to review and copy any records and supporting documentation directly pertaining to performance of this Contract. The Contractor agrees to maintain such records for possible audit for a minimum of three (3) years after final payment unless a longer period of records retention is stipulated. The Contractor agrees to allow the auditor(s) access to such records during normal business hours and in such a manner so as to not interfere unreasonably with normal business activities and to allow interviews of any employees or others who might reasonably have information related to such records. Further, the Contractor agrees to include a similar right of the State to audit records and interview staff in any subcontract related to performance of this Contract. The State shall provide reasonable advance written notice of such audits) to the Contractor.
47. FOLLOW-ON CONTRACTS:
a) If the Contractor or its affiliates provides Technical Consulting and Direction (as defined below), the Contractor and its affiliates:
i. will not be awarded a subsequent Contract to supply the service or system, or
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any significant component thereof, that is used for or in connection with any subject of such Technical Consulting and Direction; and ii. will not act as consultant to any person or entity that does receive a Contract described in sub-section (i). This prohibition will continue for one (1) year after termination of this Contract or completion of the Technical Consulting and Direction, whichever comes later.
b) "Technical Consulting and Direction" means services for which the Contractor received compensation from the State and includes:
i. development of or assistance in the development of work statements, specifications, solicitations, or feasibility studies;
ii. development or design of test requirements;
iii. evaluation of test data;
iv. direction of or evaluation of another Contractor;
v. provision of formal recommendations regarding the acquisition of Information Technology products or services; or
vi. provisions of formal recommendations regarding any of the above. For purposes of this Section, "affiliates" are employees, directors, partners, joint venture participants, parent corporations, subsidiaries, or any other entity controlled by, controlling, or under common control with the Contractor. Control exists when an entity owns or directs more than fifty percent (50%) of the outstanding shares or securities representing the right to vote for the election of directors or other managing authority.
c) To the extent permissible by law, the Director of the Department of General Services, or designee, may waive the restrictions set forth in this Section by written notice to the Contractor if the Director determines their application would not be in the State's best interest. Except as prohibited by law, the restrictions of this Section will not apply:
i. to follow-on advice given by vendors of commercial off-the-shelf products, including Software and Hardware, on the operation, integration, repair, or maintenance of such products after sale; or
ii. where the State has entered into a master agreement for Software or services and the scope of work at the time of Contract execution expressly calls for future recommendations among the Contractor's own products.
d) The restrictions set forth in this Section are in addition to conflict-of-interest restrictions imposed on public Contractors by California law ("Conflict Laws"). In the event of any inconsistency, such Conflict Laws override the provisions of this Section, even if enacted after execution of this Contract.
48. PRIORITY HIRING CONSIDERATIONS: If this Contract includes services in excess of $200,000, the Contractor shall give priority consideration in filling vacancies in positions funded by the Contract to qualified recipients of aid under Welfare and Institutions Code Section 11200 in accordance with PCC Section 10353.
49. COVENANT AGAINST GRATUITIES: The Contractor warrants that no gratuities (in the form
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of entertainment, gifts, or otherwise) were offered or given by the Contractor, or any agent or representative of the Contractor, to any officer or employee of the State with a view toward securing the Contract or securing favorable treatment with respect to any determinations concerning the performance of the Contract. For breach or violation of this warranty, the State shall have the right to terminate the Contract, either in whole or in part, and any loss or damage sustained by the State in procuring on the open market any items which the Contractor agreed to supply shall be borne and paid for by the Contractor. The rights and remedies of the State provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or in equity.
50. NONDISCRIMINATION CLAUSE:
a) During the performance of this Contract, the Contractor and its subcontractors shall not unlawfully discriminate, harass, or allow harassment, against any employee or applicant for employment because of sex, sexual orientation, race, color, ancestry, religious creed, national origin, disability (including HIV and AIDS), medical condition (cancer), age, marital status, and denial of family care leave. The Contractor and subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. The Contractor and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12990 et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations are incorporated into this Contract by reference and made a part hereof as if set forth in full. The Contractor and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
The Contractor shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the Contract.
51. NATIONAL LABOR RELATIONS BOARD CERTIFICATION: The Contractor swears under penalty of perjury that no more than one final, unappealable finding of contempt of court by a federal court has been issued against the Contractor within the immediately preceding two- year period because of the Contractor's failure to comply with an order of the National Labor Relations Board. This provision is required by, and shall be construed in accordance with, PCC Section 10296.
52. ASSIGNMENT OF ANTITRUST ACTIONS: Pursuant to Government Code Sections 4552, 4553, and 4554, the following provisions are incorporated herein:
a) In submitting a bid to the State, the supplier offers and agrees that if the bid is accepted, it will assign to the State all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700, of Part 2 of Division 7 of the Business and
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Professions Code), arising from purchases of Goods, material or other items, or services by the supplier for sale to the State pursuant to the solicitation. Such assignment shall be made and become effective at the time the State tenders final payment to the supplier. b) If the State receives, either through judgment or settlement, a monetary recovery for a cause of action assigned under this chapter, the assignor shall be entitled to receive reimbursement for actual legal costs incurred and may, upon demand, recover from the State any portion of the recovery, including treble damages, attributable to overcharges that were paid by the assignor but were not paid by the State as part of the bid price, less the expenses incurred in obtaining that portion of the recovery. c) Upon demand in writing by the assignor, the assignee shall, within one year from such demand, reassign the cause of action assigned under this part if the assignor has been or may have been injured by the violation of law for which the cause of action arose and i. the assignee has not been injured thereby, or
ii. the assignee declines to file a court action for the cause of action.
53. DRUG-FREE WORKPLACE CERTIFICATION: The Contractor certifies under penalty of perjury under the laws of the State of California that the Contractor will comply with the requirements of the Drug-Free Workplace Act of 1990 (Government Code Section 8350 et seq.) and will provide a drug-free workplace by taking the following actions:
a) Publish a statement notifying employees that unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited and specifying actions to be taken against employees for violations, as required by Government Code Section 8355(a).
Establish a Drug-Free Awareness Program as required by Government Code Section 8355(b) to inform employees about all of the following:
i. the dangers of drug abuse in the workplace;
ii. the person's or organization's policy of maintaining a drug-free workplace; ili. any available counseling, rehabilitation, and employee assistance programs; and, iv. penalties that may be imposed upon employees for drug abuse violations. c) Provide, as required by Government Code Section 8355(c), that every employee who works on the proposed or resulting Contract:
i. will receive a copy of the company's drug-free policy statement; and, ii. will agree to abide by the terms of the company's statement as a condition of employment on the Contract.
54. FOUR-DIGIT DATE COMPLIANCE: Contractor warrants that it will provide only Four-Digit Date Compliant (as defined below) Deliverables and/or services to the State. "Four Digit Date Compliant" Deliverables and services can accurately process, calculate, compare, and sequence date data, including without limitation date data arising out of or relating to leap years and changes in centuries. This warranty and representation is subject to the warranty terms and conditions of this Contract and does not limit the generality of warranty obligations set forth elsewhere herein.
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55. SWEATFREE CODE OF CONDUCT:
a) Contractor declares under penalty of perjury that no equipment, materials, or supplies furnished to the State pursuant to the Contract have been produced in whole or in part by sweatshop labor, forced labor, convict labor, indentured labor under penal sanction, abusive forms of child labor or exploitation of children in sweatshop labor, or with the benefit of sweatshop labor, forced labor, convict labor, indentured labor under penal sanction, abusive forms of child labor or exploitation of children in sweatshop labor. The Contractor further declares under penalty of perjury that they adhere to the Sweatfree Code of Conduct as set forth on the California Department of Industrial Relations website located at www.dir.ca.gov, and Public Contract Code Section 6108. b) The Contractor agrees to cooperate fully in providing reasonable access to its records, documents, agents or employees, or premises if reasonably required by authorized officials of the State, the Department of Industrial Relations, or the Department of Justice to determine the Contractor's compliance with the requirements under paragraph (a).
56. RECYCLED CONTENT REQUIRMENTS: The Contractor shall certify in writing under penalty of perjury, the minimum, if not exact, percentage of post-consumer material (as defined in the Public Contract Code (PCC) Section 12200-12209), in products, materials, goods, or supplies offered or sold to the State that fall under any of the statutory categories regardless of whether the product meets the requirements of Section 12209. The certification shall be provided by the contractor, even if the product or good contains no postconsumer recycled material, and even if the postconsumer content is unknown. With respect to printer or duplication cartridges that comply with the requirements of Section 12156(e), the certification required by this subdivision shall specify that the cartridges so comply (PCC 12205 (b)(2)). A state agency contracting officer may waive the certification requirements if the percentage of postconsumer material in the products, materials, goods, or supplies can be verified in a written advertisement, including, but not limited to, a product label, a catalog, or a manufacturer or vendor Internet web site. Contractors are to use, to the maximum extent economically feasible in the performance of the contract work, recycled content products (PCC 12203(d)).
57. CHILD SUPPORT COMPLIANCE ACT: For any Contract in excess of $100,000, the Contractor acknowledges in accordance with PCC Section 7110, that:
a) The Contractor recognizes the importance of child and family support obligations and shall fully comply with all applicable State and federal laws relating to child and family support enforcement, including, but not limited to, disclosure of information and compliance with earnings assignment orders, as provided in Chapter 8 (commencing with Section 5200) of Part 5 of Division 9 of the Family Code; and b) The Contractor, to the best of its knowledge is fully complying with the earnings assignment orders of all employees and is providing the names of all new employees to the New Hire Registry maintained by the California Employment Development Department.
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58. AMERICANS WITH DISABILITIES ACT: The Contractor assures the State that the Contractor complies with the Americans with Disabilities Act of 1990(42 U.S.C. 12101 et seq.).
59. ELECTRONIC WASTE RECYCLING ACT OF 2003: The Contractor certifies that it complies with the applicable requirements of the Electronic Waste Recycling Act of 2003, Chapter 8.5, Part 3 of Division 30, commencing with Section 42460 of the Public Resources Code. The Contractor shall maintain documentation and provide reasonable access to its records and documents that evidence compliance.
60. USE TAX COLLECTION: In accordance with PCC Section 10295.1, the Contractor certifies that it complies with the requirements of Section 7101 of the Revenue and Taxation Code.
Contractor further certifies that it will immediately advise the State of any change in its retailer's seller's permit or certification of registration or applicable affiliate's seller's permit or certificate of registration as described in subdivision (a) of PCC Section 10295.1.
61. EXPATRIATE CORPORATIONS: Contractor hereby declares that it is not an expatriate corporation or subsidiary of an expatriate corporation within the meaning of PCC Sections 10286 and 10286.1 and is eligible to contract with the State.
62. DOMESTIC PARTNERS: For contracts over $100,000 executed or amended after January 1, 2007, the contractor certifies that the contractor is in compliance with Public Contract Code Section 10295.3.
63. SMALL BUSINESS PARTICIPATION AND DVBE PARTICIPATION REPORTING REQUIREMENTS:
a) If for this Contract the Contractor made a commitment to achieve small business participation, then the Department requires the Contractor upon completion of this Contract (or within such other time period as may be specified elsewhere in this Contract) to report the actual percentage of small business participation that was achieved. (Govt.
Code § 14841)
b) If for this Contract the Contractor made a commitment to achieve the disabled veteran business enterprise (DVBE) participation goal, then, pursuant to Mil. & Vets. Code § 999.5(d), upon completion of this Contract, the Department requires the Contractor to certify using the Prime Contractor's Certification - DVBE Subcontracting Report (STD 817), all of the following:
i. the total amount the prime Contractor received under the Contract; ii. the name, address, Contract number and certification ID number of the DVBE(s) that participated in the performance of this Contract;
ill. the amount and percentage of work the prime Contractor committed to provide to one or more DVBE(s) under the requirements of the Contract and the total payment each DVBE received from the prime Contractor;
iv. that all payments under the Contract have been made to the DVBE(s); and v. the actual percentage of DVBE participation that was achieved. Upon request, the prime Contractor shall provide proof of payment for the work.
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If for this Contract the Contractor made a commitment to achieve the DVBE participation goal, the Department will withhold $10,000 from the final payment, or the full final payment if less than $10,000, until the Contractor complies with the certification requirements above. A Contractor that fails to comply with the certification requirement shall, after written notice, be allowed to cure the defect. Notwithstanding any other law, if, after at least 15 calendar days but not more than 30 calendar days from the date of written notice, the prime contractor refuses to comply with the certification requirements, the Department shall permanently deduct $10,000 from the final payment, or the full payment if less than $10,000. (Mil. & Vets. Code § 999.7) A person or entity that knowingly provides false information shall be subject to a civil penalty for each violation. (Mil. & Vets. Code § 999.5(d); Govt. Code § 14841) Contractor agrees to comply with the rules, regulations, ordinances, and statutes that apply to the DVBE program as defined in Section 999 of the Mil. & Vets. Code, including, but not limited to, the requirements of Section 999.5(d). (PCC Code § 10230)
64. LOSS LEADER: It is unlawful for any person engaged in business within this state to sell or use any article or product as a "loss leader" as defined in Section 17030 of the Business and Professions Code. (PCC 12104.5(b).).
65. EXECUTIVE ORDER N-6-22-RUSSIA SANCTIONS: The Contractor shall comply with Executive Order N-6-22 (the EO) regarding Economic Sanctions against Russia and Russian entities and individuals. "Economic Sanctions" refers to sanctions imposed by the U.S. government in response to Russia's actions in Ukraine, as well as any sanctions imposed under state law. The EO directs state agencies to terminate contracts with, and to refrain from entering any new contracts with, individuals or entities that are determined to be a target of Economic Sanctions. Accordingly, should the State determine Contractor is a target of Economic Sanctions or is conducting prohibited transactions with sanctioned individuals or entities, that shall be grounds for termination of this agreement. The State shall provide Contractor advance written notice of such termination, allowing Contractor at least 30 calendar days to provide a written response. Termination shall be at the sole discretion of the State.
STATE MODEL
CLOUD COMPUTING SERVICES SPECIAL PROVISIONS
(Software as a Service)
THESE SPECIAL PROVISIONS ARE ONLY TO BE USED FOR SOFTWARE AS A SERVICE (SaaS), AS DEFINED BELOW. THESE SPECIAL PROVISIONS ARE TO BE ATTACHED TO THE GENERAL PROVISIONS -
INFORMATION TECHNOLOGY AND SHOULD BE ACCOMPANIED BY, A STATEMENT OF WORK (SOW) AND SERVICE LEVEL AGREEMENT (SLA). SECURITY REQUIREMENTS DESIGNATED IN THIS DOCUMENT ARE
ASSUMING A NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY (NIST) LOW CLASSIFICATION, UNLESS OTHERWISE SET FORTH IN THE SOW. A HIGHER CLASSIFICATION MAY REQUIRE DIFFERENT SECURITY REQUIREMENTS. STATE AGENCIES MUST FIRST:
A. CLASSIFY THEIR DATA PURSUANT TO THE CALIFORNIA STATE ADMINISTRATIVE MANUAL (SAM) 5305.5;
B. CONSIDER THE FACTORS TO BE TAKEN INTO ACCOUNT WHEN SELECTING A PARTICULAR TECHNOLOGICAL APPROACH, IN ACCORDANCE WITH SAM 4981.1, 4983 AND 4983.1 AND THEN; C. MODIFY THESE SPECIAL PROVISIONS THROUGH THE SOW AND/OR SLA TO MEET THE NEEDS OF EACH ACQUISITION.
1. Definitions
"Cloud Software as a Service (SaaS)" - The capability provided to the consumer is to use applications made available by the provider running on a cloud infrastructure. The applications are accessible from various client devices through a thin client interface such as a web browser (e.g., web-based email). The consumer does not manage or control the underlying cloud infrastructure including network, servers, operating systems, storage, or even individual application capabilities, with the possible exception of limited user-specific application configuration settings.
b) "Cloud Platform as a Service (PaaS)" - The capability provided to the consumer is to deploy onto the cloud infrastructure consumer-created or acquired applications created using programming languages and tools supported by the provider. The consumer does not manage or control the underlying cloud infrastructure including network, servers, operating systems, or storage, but has control over the deployed applications and possibly application hosting environment configurations c) "Cloud Infrastructure as a Service (laaS)" - The capability provided to the consumer is to provision processing, storage, networks, and other fundamental computing resources where the consumer is able to deploy and run arbitrary software, which can include operating systems and applications. The consumer does not manage or control the underlying cloud infrastructure but has control over operating systems; storage, deployed applications, and possibly limited control of select networking components (e.g., host firewalls).
d) "Data" - means any information, formulae, algorithms, or other content that the State, the State's employees, agents and end users upload, create or modify using the SaaS pursuant to this Contract. Data also includes user identification information and metadata which may contain Data or from which the State's Data may be ascertainable.
e) "Data Breach" - means any access, destruction, loss, theft, use, modification or disclosure of Data by an unauthorized party or that is in violation of Contract terms and/or applicable state or federal law. f) "Encryption" - Conversion of plaintext to ciphertext through the use of a Federal Information Processing Standards (FIPS) validated cryptographic algorithm. [FIPS 140-2] g) "Recovery Point Objective (RPO) - means the point in time to which Data can be recovered and/or systems restored when service is restored after an interruption. The Recovery Point Objective is expressed as a length of time between the interruption and the most proximate backup of Data immediately preceding the interruption. The RPO is detailed in the SLA.
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h) "Recovery Time Objective (RTO)" - means the period of time within which information technology services, systems, applications and functions must be recovered following an unplanned interruption. The RTO is detailed in the SLA.
Terms
2. SaaS AVAILABILITY: Unless otherwise stated in the Statement of Work, a) The SaaS shall be available twenty-four (24) hours per day, 365 days per year (excluding agreed-upon maintenance downtime).
b) If SaaS monthly availability averages less than 99.9% (excluding agreed-upon maintenance downtime), the State shall be entitled to recover damages, apply credits or use other contractual remedies as set forth in the Statement of Work.
c) If SaaS monthly availability averages less than 99.9% (excluding agreed-upon maintenance downtime), for three (3) or more months in a rolling twelve-month period, the State may terminate the contract for material breach in accordance with the Termination for Default provision in the General Provisions - Information Technology.
d) Contractor shall provide advance written notice to the State in the manner set forth in the Statement of Work of any major upgrades or changes that will affect the Saas availability.
3. DATA AVAILABILITY: Unless otherwise stated in the Statement of Work, a) The Data shall be available twenty-four (24) hours per day, 365 days per year (excluding agreed-upon maintenance downtime).
b) If Data monthly availability averages less than 99.9% (excluding agreed-upon maintenance downtime), the State shall be entitled to recover damages, apply credits or use other contractual remedies as set forth in the Statement of Work if the State is unable to access the Data as a result of:
1) Acts or omission of Contractor;
2) Acts or omissions of third parties working on behalf of Contractor; Network compromise, network intrusion, hacks, introduction of viruses, disabling devices, malware and other forms of attack that can disrupt access to Contractor's server, to the extent such attack would have been prevented by Contractor taking reasonable industry standard precautions; 4) Power outages or other telecommunications or Internet failures, to the extent such outages were within Contractor's direct or express control.
) If Data monthly availability averages less than 99.9% (excluding agreed-upon maintenance downtime), fo hree (3) or more months in a rolling twelve-month period, the State may terminate the contract for materia breach in accordance with the Termination for Default provision in the General Provisions - Information Technology.
4. SaaS and DATA SECURITY:
In addition to the Compliance with Statutes and Regulations provision set forth in the General Provisions - Information Technology, Contractor shall certify to the State:
1) The sufficiency of its security standards, tools, technologies and procedures in providing Saas under this Contract;
2) Compliance with the following:
i. The Califomia Information Practices Act (Civil Code Sections 1798 et seq.); ii. Current NIST special publications 800-171 Protecting Controlled Unclassified Information in Nonfederal Information Systems and Organizations. Third party audit results and Contractor's plan to correct any negative findings shall be made available to the State upon request; DGS Procurement Division Page 2 rev. 03/15/18
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(Software as a Service)
ili. Undergo an annual Statement on Standards for Attestation Engagements (SSAE) No. 16 Service Organization Control (SOC) 2 Type Il audit. Third party audit results and Contractor:
lan to correct any negative findings and implementation progress reports shall be made available to the State upon request; and
iv. Privacy provisions of the Federal Privacy Act of 1974; 3) Compliance with industry standards and guidelines applicable to the SaaS services being provided.
Relevant security provisions may include, but are not limited to: Health Insurance Portability and Accountability Act of 1996, IRS 1075, Health Information Technology for Economic and Clinical (HITECH) Act, Criminal Justice Information Services (CJIS) Security Policy, Social Security Administration (SSA) Electronic Information Exchange Security Requirements, and the Payment Card Industry (PCI) Data Security Standard (DSS) as well as their associated Cloud Computing Guidelines.
b) Contractor shall implement and maintain all appropriate administrative, physical, technical and procedural safeguards in accordance with section a) above at all times during the term of this Contract to secure such Data from Data Breach, protect the Data and the SaaS from hacks, introduction of viruses, disabling devices, malware and other forms of malicious or inadvertent acts that can disrupt the State's access to its Data.
c) Contractor shall allow the State reasonable access to SaaS security logs, latency statistics, and other related SaaS security data that affect this Contract and the State's Data, at no cost to the State. d) Contractor assumes responsibility for the security and confidentiality of the Data under its control. e) No Data shall be copied, modified, destroyed or deleted by Contractor other than for normal operation or maintenance of SaaS during the Contract period without prior written notice to and written approval by the f) Remote access to Data from outside the continental United States, including remote access to Data by authorized SaaS support staff in identified support centers, is prohibited unless approved in advance in writing by:
the Agency Information Security Officer, with written notice to the State Chief Information Security Officer, or
2) in the absence of an Agency Information Security Officer, the State Chief Information Security Officer.
5. ENCRYPTION: Confidential, sensitive or personal information shall be encrypted in accordance with California State Administrative Manual 5350.1 and California Statewide Information Management Manual 5305-A.
6. DATA LOCATION: Unless otherwise stated in the Statement of Work and approved in advance in writing by:
1) the Agency Information Security Officer, with written notice to the State Chief Information Security Officer, or
2) in the absence of an Agency Information Security Officer, the State Chief Information Security Officer,
the physical location of Contractor's data center where the Data is stored shall be within the continental United States.
7. RIGHTS TO DATA: The parties agree that as between them, all rights, including all intellectual property rights, in and to Data shall remain the exclusive property of the State, and Contractor has a limited, non-exclusive license to access and use the Data as provided to Contractor solely for performing its obligations under the Contract. Nothing herein shall be construed to confer any license or right to the Data, including user tracking and exception Data within the system, by implication, estoppel or otherwise, under copyright or other intellectual property rights, to any third party. Unauthorized use of Data by Contractor or third parties is prohibited. For the purposes of this requirement, DGS Procurement Division Page 3 rev. 03/15/18
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(Software as a Service)
the phrase "unauthorized use" means the data mining or processing of data, stored or transmitted by the service, for unrelated commercial purposes, advertising or advertising-related purposes, or for any other purpose other than security or service delivery analysis that is not explicitly authorized.
8. TRANSITION PERIOD:
a) Unless otherwise stated in the SOW, for ninety (90) days prior to the expiration date of this Contract, or upon notice of termination of this Contract, Contractor shall assist the State in extracting and/or transitioning all Data in the format determined by the State ("Transition Period"). b) The Transition Period may be modified in the SOW or as agreed upon in writing by the parties in a contract amendment.
c) During the Transition Period, SaaS and Data access shall continue to be made available to the State without alteration.
d) Contractor agrees to compensate the State for damages or losses the State incurs as a result of Contractor's failure to comply with this section in accordance with the Limitation of Liability provision set forth in the General Provisions - Information Technology e) Unless otherwise stated in the SOW, the Contractor shall permanently destroy or render inaccessible any portion of the Data in Contractor's and/or subcontractor's possession or control following the expiration of all obligations in this section. Within thirty (30) days, Contractor shall issue a written statement to the State confirming the destruction or inaccessibility of the State's Data. f) The State at its option, may purchase additional transition services as agreed upon in the SOW.
9. DATA BREACH: Unless otherwise stated in the Statement of Work, a) Upon discovery or reasonable belief of any Data Breach, Contractor shall notify the State by the fastest means available and also in writing, with additional notification provided to the Chief Information Security Officer or designee of the contracting agency. Contractor shall provide such notification within forty-eight (48) hours after Contractor reasonably believes there has been such a Data Breach. Contractor's notification shall identify:
1) The nature of the Data Breach;
The Data accessed, used or disclosed;
The person(s) who accessed, used, disclosed and/or received Data (if known); 4) What Contractor has done or will do to quarantine and mitigate the Data Breach; and 5) What corrective action Contractor has taken or will take to prevent future Data Breaches. b) Contractor will provide daily updates, or more frequently if required by the State, regarding findings and actions performed by Contractor until the Data Breach has been effectively resolved to the State's satisfaction.
• Contractor shall quarantine the Data Breach, ensure secure access to Data, and repair SaaS as needed in accordance with the SLA. Failure to do so may result in the State exercising its options for assessing damages or other remedies under this Contract.
d) Notwithstanding anything to the contrary in the General Provisions - Information Technology, in performing services under this Contract, and to the extent authorized by the State in the Statement of Work, Contractor may be permitted by the State to use systems, or may be granted access to the State systems, which store, transmit or process State owned, licensed or maintained computerized Data consisting of personal information, as defined by Civil Code Section 1798.29 (g). If the Contractor causes or knowingly experiences a breach of the security of such Data, Contractor shall immediately report any breach of security of such system to the State following discovery or notification of the breach in the security of such Data. The State's Chief Information Security Officer, or designee, shall determine whether notification to the individuals whose Data has been lost or breached is appropriate. If personal information of any resident of California was, or is reasonably believed to have been acquired by an unauthorized person as a result of a DGS Procurement Division Page 4 rev. 03/15/18
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(Software as a Service)
security breach of such system and Data that is not due to the fault of the State or any person or entity under the control of the State, Contractor shall bear any and all costs associated with the State's notification obligations and other obligations set forth in Civil Code Section 1798.29 (d) as well as the cost of credit monitoring, subject to the dollar limitation, if any, agreed to by the State and Contractor in the applicable Statement of Work. These costs may include, but are not limited to staff time, material costs, postage, media announcements, and other identifiable costs associated with the breach of the security of such personal information.
e) Contractor shall conduct an investigation of the Data Breach and shall share the report of the investigation with the State. The State and/or its authorized agents shall have the right to lead (if required by law) or participate in the investigation. Contractor shall cooperate fully with the State, its agents and law enforcement.
10. DISASTER RECOVERY/BUSINESS CONTINUITY: Unless otherwise stated in the Statement of Work, a) In the event of disaster or catastrophic failure that results in significant Data loss or extended loss of access to Data, Contractor shall notify the State by the fastest means available and also in writing, with additional notification provided to the Chief Information Security Officer or designee of the contracting agency.
Contractor shall provide such notification within twenty-four (24) hours after Contractor reasonably believes there has been such a disaster or catastrophic failure. In the notification, Contactor shall inform the State of:
1) The scale and quantity of the Data loss;
2) What Contractor has done or will do to recover the Data and mitigate any deleterious effect of the Data loss; and
What corrective action Contractor has taken or will take to prevent future Data loss. 4) If Contractor fails to respond immediately and remedy the failure, the State may exercise its options for assessing damages or other remedies under this Contract. b) Contractor shall restore continuity of SaaS, restore Data in accordance with the RPO and RTO as set forth in the SLA, restore accessibility of Data, and repair Saas as needed to meet the performance requirements stated in the SLA. Failure to do so may result in the State exercising its options for assessing damages or other remedies under this Contract.
c) Contractor shall conduct an investigation of the disaster or catastrophic failure and shall share the report of the investigation with the State. The State and/or its authorized agents shall have the right to lead (if required by law) or participate in the investigation. Contractor shall cooperate fully with the State, its agents and law enforcement.
11. EXAMINATION AND AUDIT: In addition to the Examination and Audit provision set forth in the General Provisions - Information Technology, unless otherwise stated in the Statement of Work:
a) Upon advance written request, Contractor agrees that the State or its designated representative shall have access to Contractor's SaaS, operational documentation, records and databases, including online inspections, that relate to the SaaS purchased by the State.
The online inspection shall allow the State, its authorized agents, or a mutually acceptable third party to test that controls are in place and working as intended. Tests may include, but not be limited to, the following:
1) Operating system/network vulnerability scans,
2) Web application vulnerability scans,
3) Database application vulnerability scans, and
4) Any other scans to be performed by the State or representatives on behalf of the State. c) After any significant Data loss or Data Breach or as a result of any disaster or catastrophic failure, Contractor will at its expense have an independent, industry-recognized, State-approved third party perform an information security audit. The audit results shall be shared with the State within seven (7) days of Contractor's receipt of such results. Upon Contractor receiving the results of the audit, Contractor will DGS Procurement Division Page 5 rev. 03/15/18
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provide the State with writen evidence of planned remediation within thirty (30) days and promptly modify its security measures in order to meet its obligations under this Contract.
12. DISCOVERY: Contractor shall promptly notify the State upon receipt of any requests which in any way might reasonably require access to the Data of the State or the State's use of the SaaS. Contractor shall notify the State by the fastest means available and also in writing, with additional notification provided to the Chief Information Security Officer or designee of the contracting agency, unless prohibited by law from providing such notification.
Contractor shall provide such notification within forty-eight (48) hours after Contractor receives the request.
Contractor shall not respond to subpoenas, service of process, Public Records Act requests, and other legal requests directed at Contractor regarding this Contract without first notifying the State unless prohibited by law from providing such notification. Contractor agrees to provide its intended responses to the State with adequate time for the State to review, revise and, if necessary, seek a protective order in a court of competent jurisdiction. Contractor shall not respond to legal requests directed at the State unless authorized in writing to do so by the State.
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DGS PD-401 IT CLOUD COMPUTING Saas (REVISED AND EFFECTIVE 6/21/22)
GENERAL PROVISIONS - INFORMATION TECHNOLOGY -
CLOUD COMPUTING - SOFTWARE as a SERVICE (SaaS)
THESE CLOUD COMPUTING - SOFTWARE AS A SERVICE (SaaS) GENERAL
PROVISIONS ARE ONLY TO BE USED FOR SOFTWARE AS A SERVICE, AS DEFINED BELOW, AND ANY ANCILLARY SERVICES. THE CLOUD COMPUTING SERVICES
SPECIAL PROVISIONS ARE INCORPORATED BY REFERENCE UNLESS SPECIFICALLY MODIFIED AND ATTACHED HERETO. THIS CONTRACT SHALL BE
ACCOMPANIED BY A STATEMENT OF WORK (SOW) AND SERVICE LEVEL AGREEMENT (SLA), IN ADDITION TO STANDARD EXHIBITS.
1. DEFINITIONS:
Unless otherwise specified in the Statement of Work, the following terms shall be given the meaning shown, unless context requires otherwise. a) "Application Program" means a computer program that is intended to be executed for the purpose of performing useful work for the user of the information being processed. Application Programs are developed or otherwise acquired by the User of the Hardware/Software system, but they may be supplied by the Contractor.
b) "Buyer" means the State's authorized contracting official. c) "Contract" means this Contract or agreement including any purchase order), by whatever name known or in whatever format used. d) "Contractor" means the business entity with whom the State enters into this Contract. Contractor shall be synonymous with supplier, vendor, Reseller, Service Provider, or other similar term.
e) "Customer" means the State or an Eligible Public Entity using the Contractor's or the Service Provider's Services.
f) "Deliverables" means the tangible products or works of authorship and other items (e.g. reports) to be delivered pursuant to this Contract, including any such items furnished that are incidental to the provision of Services. g) "Documentation" means manuals and other published materials necessary or useful to the State in its use or maintenance of the products and Services provided hereunder and includes online materials, virtual help, and help desk where available. In addition, manuals and other published materials customized for the State hereunder constitute Work Product as defined below.
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h) "Eligible Public Entity" means each of the non-State public entities authorized to purchase the Deliverables and Services offered hereunder. "Eligible Public Entity" includes the county, city, city and county, district, public authority, public agency, municipal corporation, or any other political subdivision or public corporation in the State. "Eligible Public Entity" also includes a federally-recognized tribal entity acting in its tribal governmental capacity.
i) "Goods" means all types of tangible personal property, including but not limited to materials, supplies, and equipment (including computer and telecommunications equipment).
"Hardware" refers to computer equipment and is contrasted with Software.
k) "Information Technology" includes, but is not limited to, all electronic technology systems and services, automated information handling, system design and analysis, conversion of data, computer programming, information storage and retrieval, telecommunications which include voice, video, and data communications, requisite system controls, simulation, electronic commerce, and all related interaction between people and machines. "Maintenance" includes: i) remedial maintenance performed by the Contractor which results from a Services failure and which is performed as required, i.e., on an unscheduled basis; and i) the maintenance performed on a scheduled basis by the Contractor.
m) "Reseller" means the agents) of the Service Provider or the business entity authorized by the Service Provider to resell the Services or perform aspects of this Contract as specified herein including, but not limited to sales, fulfillment, invoicing, returns, and customer service.
n) "Service Provider" means the Contractor, subcontractors, agents, Resellers, third parties and affiliates of the Contractor, the cloud service provider, or managed service provider who may provide the Services agreed to under the Contract.
o) "Services" means the cloud computing services, including Software as a Service (but not Infrastructure as a Service or Platform as a Service), and any related services, offered to the State by the Contractor herein. p) "Software" means an all-inclusive term which refers to any computer
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programs, routines, or subroutines supplied by the Contractor, including operating Software, Application Programs, and enabling software ("Software Products") that the State downloads to the State's systems to facilitate use of the Service.
q) "Software as a Service (SaaS)" is the capability provided to the Customer to use applications made available by the Service Provider running on a cloud infrastructure. The applications are accessible from various client devices through a thin client interface such as a web browser (e.g., web-based email). The Customer does not manage or control the underlying cloud infrastructure including network, servers, operating systems, storage, or even individual application capabilities, with the possible exception of limited user-specific application configuration settings.
r) "State" means the government of the State of California, its employees and authorized representatives, including without limitation any department, agency, or other unit of the government of the State of California.
s) "State Data" means all data owned by the State, and submitted to, processed by, or stored by the Service Provider under this Contract and includes, but is not limited to, all data that originated with the State or Users, all data provided by the State or Users, and data generated, manipulated, produced, reported by or otherwise emanating from or by applications run by the State or Users on the Services. For clarity, State Data is synonymous with "Customer Data", "Customer Content", or similar terms, as used in various provisions of the service agreements and incorporated into the Contract and includes the following:
i. "Non-Public Data" means data submitted to the Service Provider, other than Personal Data, that is not subject to distribution to the public as public information. It is deemed to be sensitive and confidential by the State because it contains information that may be exempt by statute, regulation, or policy from access by the general public as public information.
ii. "Personal Data" means Personal Information as defined by the California Information Practices Act (Civil Code sections 1798 et seq.) submitted to the Service Provider.
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ili. "Public Information" means any information prepared, owned, used, or retained by the State and not specifically exempt from the disclosure requirements of the California Public Records Act (Government Code section 6250 et. seq.) or other applicable state or federal laws. For clarity, "Public Information" is also interchangeable with "Public Data" t) "Statement of Work" (or "SOW") means a document provided by the State which defines the timeline, and specifies the objectives, Services, Deliverables and tasks that the Contractor is expected to perform, their responsibilities and expectations, indicating the type, level and quality of service that is expected, all of which form a contractual obligation upon the Contractor in providing Services to the State. The SOW includes detailed technical requirements and pricing, with permitted modifications ("carve- outs") to the SaaS General and Special Provisions.
u) "User" means any authorized end user of the Services under this Contract and includes Customer's employees, subcontractors, or any system utilized by the Customer to access the Services, whose compliance with the terms of this Contract is the responsibility of the Customer.
v) "U.S. Intellectual Property Rights" means intellectual property rights enforceable in the United States of America, including without limitation rights in trade secrets, copyrights, and U.S. patents.
2. CONTRACT FORMATION:
a) If this Contract results from a sealed bid offered in response to a solicitation conducted pursuant to Chapters 2 (commencing with section 10290), 3 (commencing with section 12100), and 3.6 (commencing with section 12125) of Part 2 of Division 2 of the Public Contract Code (PCC), then Contractor's bid is a firm offer to the State which is accepted by the issuance of this Contract and no further action is required by either party.
b) If this Contract results from a solicitation other than described in paragraph a), above, the Contractor's quotation or proposal is deemed a firm offer and this Contract document is the State's acceptance of that offer. c) If this Contract resulted from a joint bid, it shall be deemed one indivisible Contract. Each such joint Contractor will be jointly and severally liable for the performance of the entire Contract. The State assumes no responsibility or obligation for the division of orders or purchases among joint Contractors.
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3. COMPLETE INTEGRATION:
This Contract, including any documents incorporated herein by express reference, is intended to be a complete integration and there are no prior or contemporaneous different or additional agreements pertaining to the subject matter of the Contract.
4. SEVERABILITY:
The Contractor and the State agree that if any provision of this Contract is found to be illegal or unenforceable, such term or provision shall be deemed stricken and the remainder of the Contract shall remain in full force and effect. Either party having knowledge of such term or provision shall promptly inform the other of the presumed non-applicability of such provision.
5. INDEPENDENT CONTRACTOR:
Contractor and the agents and employees of the Contractor, in the performance of this Contract, shall act in an independent capacity and not as officers or employees or agents of the State.
6. APPLICABLE LAW:
This Contract shall be governed by and shall be interpreted in accordance with the laws of the State of California; venue of any action brought with regard to this Contract shall be in Sacramento County, Sacramento, California. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Contract.
7. COMPLIANCE WITH STATUTES AND REGULATIONS:
a) The State and the Contractor warrant and certify that in the performance of this Contract, it will comply with all applicable statutes, rules, regulations and orders of the United States and the State of California, including the California Information Practices Act (Civil Code sections 1798 et seq.). The Contractor agrees to indemnify, defend, and save harmless the State against any loss, cost, damage or liability by reason of the Contractor's violation of this provision. b) The State will notify the Contractor of any such claim in writing and tender the defense thereof within reasonable time.
c) The Contractor will have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; provided that (i) when substantial principles of government or public law are involved, when litigation might create precedent affecting future State operations or liability, or when involvement of the State is otherwise mandated by law, the State may participate in such action at its
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own expense with respect to attorneys' fees and costs (but not liability); (i) where a settlement would impose liability on the State, affect principles of California government or public law, or impact the authority of the State, the Department of General Services or the Department of Technology, as applicable, will have the right to approve or disapprove any settlement or compromise, which approval will not unreasonably be withheld or delayed; and
(iii) the State will reasonably cooperate in the defense and in any related settlement negotiations.
d) If this Contract is in excess of $554,000, it is subject to the requirements of the World Trade Organization (WTO) Government Procurement Agreement (GPA). e) To the extent that this Contract falls within the scope of Government Code section 7405, the Contractor will be responsible to respond to and resolve any complaint brought to its attention, regarding accessibility of its products or Services. The State shall designate an authorized representative who will be responsible for submission to Contractor of complaints received by the State regarding the accessibility of Contractor's products and Services. Contractor shall be responsible to review and respond to all complaints regarding accessibility brought to the attention of the State. The State and Contractor shall work together to determine a reasonable response and resolution of all complaints. The State acknowledges that Contractor can satisfy its duty to respond to and resolve complaints under this provision by taking action it deems appropriate under the circumstances, which may in some instances include no further action beyond responding to the complaint.
8. CONTRACTOR'S POWER AND AUTHORITY:
The Contractor warrants that it has full power and authority to grant the rights herein granted and will reimburse the State for any loss, cost, liability, and expense (including reasonable attorney fees) arising out of any breach of this warranty.
Further, the Contractor avers that it will not enter into any arrangement with any third party which might abridge any rights of the State under this Contract. a) The State will notify the Contractor of any such claim in writing and tender the defense thereof within a reasonable time; and
b) The Contractor will have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; provided that (i) when substantial principles of government or public law are involved, when litigation might create precedent affecting future State operations or liability, or when involvement of the State is otherwise mandated by law, the State may participate in such action at its
DGS PD-401 IT CLOUD COMPUTING SaaS (REVISED AND EFFECTIVE 6/21/22)
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CLOUD COMPUTING - SOFTWARE as a SERVICE (SaaS)
own expense with respect to attorneys' fees and costs (but not liability); (i) where a settlement would impose liability on the State, affect principles of California government or public law, or impact the authority of the State, the Department of General Services or the Department of Technology, as applicable, will have the right to approve or disapprove any settlement or compromise, which approval will not unreasonably be withheld or delayed; and
(iii) the State will reasonably cooperate in the defense and in any related settlement negotiations.
9. ASSIGNMENT:
This Contract shall not be assignable by the Contractor in whole or in part without the written consent of the State. The State's consent shall not be unreasonably withheld or delayed. For the purpose of this paragraph, the State will not unreasonably prohibit the Contractor from freely assigning its right to payment, provided that the Contractor remains responsible for its obligations hereunder.
10. WAIVER OF RIGHTS:
Any action or inaction by the State or the failure of the State on any occasion, to enforce any right or provision of the Contract, shall not be construed to be a waiver by the State of its rights hereunder and shall not prevent the State from enforcing such provision or right on any future occasion. Except as specifically set forth in Section 13 (Warranty) below, the rights and remedies of the State herein are cumulative and are in addition to any other rights or remedies that the State may have at law or in equity.
11. ORDER OF PRECEDENCE:
In the event of any inconsistency between the articles, attachments, specifications or provisions which constitute this Contract, the following order of precedence shall apply:
a) These Cloud Computing - Software as a Service General Provisions (In the instances provided herein where the paragraph begins: "Unless otherwise specified in the Statement of Work" provisions specified in the Statement of Work replacing these paragraphs shall take precedence over the paragraph referenced in these General Provisions);
b) Contract form, e.g., Purchase Order STD 65, Standard Agreement STD 213, FI$Cal generated Purchase Order, etc., and any amendments thereto; c) The Cloud Computing Special Provisions - Software as a Service (hereafter referred to as, the "SaaS Special Provisions"), which are incorporated by
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reference unless specifically modified and attached hereto, and other Special Provisions;
d) Statement of Work, including any specifications incorporated by reference herein;
e) Cost worksheets;
f) The Service Provider's service agreement and attachments; and g) All other attachments incorporated in the Contract by reference.
12. INSPECTION, ACCEPTANCE AND REJECTION:
Unless otherwise specified in the Statement of Work:
a) When acquiring SaaS, the State shall rely on Contractor's existing quality assurance system as a substitute for State inspection and testing. b) For all other acquisitions, Contractor and its subcontractors will provide and maintain a quality assurance system acceptable to the State covering Deliverables and Services under this Contract and will tender to the State only those Deliverables and Services that have been inspected and found to conform to this Contract's requirements. The Contractor will keep records evidencing inspections and their result, and will make these records available to the State during Contract performance and for three years after final payment. The Contractor shall permit the State to review procedures, practices, processes, and related documents to determine the acceptability of the Contractor's quality assurance system or other similar business practices related to performance of the Contract. c) In the event any Goods or Deliverables furnished by the Contractor in the performance of the Contract should fail to conform to the requirements herein, the State may reject the same, and it shall become the duty of the Contractor to reclaim and remove the item promptly without expense to the State.
13. WARRANTY:
a) Limited Warranty for Services. Unless otherwise specified in the Statement of Work, Contractor warrants that Services furnished hereunder will substantially conform to the requirements of this Contract (including without limitation all descriptions, specifications, and drawings identified in the Statement of Work), and:
i. Services will be performed in accordance with the Contract; and
DGS PD-401 IT CLOUD COMPUTING Saas (REVISED AND EFFECTIVE 6/21/22)
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CLOUD COMPUTING - SOFTWARE as a SERVICE (SaaS)
ii. All customer support for Services will be performed with professional care and skill.
b) Duration of Limited Warranty. The limited warranty will be for the duration of State's use of the Services, unless the underlying Service Provider's warranty is shorter in duration, in which case the parties will specify the length of the applicable limited warranty in the Statement of Work. This limited warranty is subject to the following limitations:
i. any implied warranties, guarantees, or conditions not able to be disclaimed as a matter of law last for one year from the start of the limited warranty; ii. the limited warranty does not cover problems caused by the State's accident, abuse or use in a manner inconsistent with this Contract or any applicable service agreement, or resulting from events beyond Contractor's reasonable control;
ili. the limited warranty does not apply to components of Software that the State may be permitted to redistribute;
iv. the limited warranty does not apply to free, trial, pre-release, or beta Services; and
v. the limited warranty does not apply to problems caused by the State's failure to meet minimum system requirements.
c) Remedies for breach of Limited Warranty. Unless otherwise specified in the Statement of Work, if Contractor fails to meet any of the above limited warranties and the State notifies Contractor within the warranty period, then the State's remedy and the Contractor's obligation will be re-performance, repair, replacement, or refund of fees paid. In the event the Contractor fails to re- perform, repair, replace, or refund fees paid for the products and/or Services as appropriate, the State may terminate the Contract.
d) Warranty for Software Products. Any Software Products provided by the Service Provider shall be covered by the developer's consumer warranty that will be passed to the Customer.
e) DISCLAIMER OF OTHER WARRANTIES. OTHER THAN THIS LIMITED
WARRANTY, CONTRACTOR PROVIDES NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS. CONTRACTOR DISCLAIMS ANY IMPLIED
REPRESENTATIONS, WARRANTIES, OR CONDITIONS, INCLUDING
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
DGS PD-401 IT CLOUD COMPUTING SaaS (REVISED AND EFFECTIVE 6/21/22)
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CLOUD COMPUTING - SOFTWARE as a SERVICE (SaaS)
PURPOSE, SATISFACTORY QUALITY, OR TITLE. THESE DISCLAIMERS WILL APPLY UNLESS APPLICABLE LAW DOES NOT PERMIT THEM.
f) Contractor shall ensure that the Service Provider shall apply anti-malware controls to the Services to help avoid malicious software gaining unauthorized access to State Data, including malicious software originating from public networks. Such controls shall at all times equal or exceed the controls consistent with the industry standards for such data, but in no event less than the controls that Contractor applies to its own internal corporate electronic data of like character. g) Unless otherwise specified elsewhere in the Contract:
i. The Contractor does not warrant that any Services provided hereunder is error-free or that it will run without immaterial interruption; and il. The Contractor does not warrant and will have no responsibility for a claim to the extent that it arises directly from:
a. a modification made by the State, unless such modification is approved or directed by the Contractor,
b. use of Services in combination with software or services other than as specified by the Contractor, or
c. misuse by the State.
h) All warranties, including special warranties specified elsewhere herein, shall inure to the State, its successors, assigns, customer agencies, and governmental users of the Deliverables or Services.
14. SAFETY AND ACCIDENT PREVENTION:
In performing work under this Contract on State premises, the Contractor shall conform to any specific safety requirements contained in the Contract or as required by law or regulation. The Contractor shall take any additional precautions as the State may reasonably require for safety and accident prevention purposes. Any violation of such rules and requirements, unless promptly corrected, shall be grounds for termination of this Contract in accordance with the default provisions hereof.
15. TERMINATION FOR NON-APPROPRIATION OF FUNDS:
a) If the term of this Contract extends into fiscal years subsequent to that in which it is approved, such continuation of the Contract is contingent on the appropriation of funds for such purpose by the Legislature or the United States Congress, if
DGS PD-401 IT CLOUD COMPUTING Saas (REVISED AND EFFECTIVE 6/21/22)
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CLOUD COMPUTING - SOFTWARE as a SERVICE (SaaS)
applicable. If funds to effect such continued payment are not appropriated, the Contractor agrees to terminate any services supplied to the State under this Contract, and relieve the State of any further obligation therefor. b) The State agrees that if it appears likely that subsection a) above will be invoked, the State and Contractor shall agree to take all reasonable steps to prioritize work and minimize the incurrence of costs prior to the expiration of funding for this Contract.
16. TERMINATION FOR THE CONVENIENCE OF THE STATE:
a) The State may terminate performance under this Contract for its convenience in whole or, from time to time, in part, if the Department of General Services, Deputy Director Procurement Division, or designee, determines that a termination is in the State's interest. The Department of General Services, Deputy Director, Procurement Division, or designee, or the Department of Technology, Deputy Director, Statewide Technology Procurement, or designee, as applicable, shall terminate by delivering to the Contractor a Notice of Termination specifying the extent of termination and the effective date thereof, which shall be no less than fifteen (15) days from the Notice of Termination date.
b) After receipt of a Notice of Termination, and except as directed by the State, the Contractor shall immediately stop work as specified in the Notice of Termination, regardless of any delay in determining or adjusting any amounts due under this clause. c) After termination, the Contractor shall submit a final termination settlement proposal to the State in the form and with the information prescribed by the State except that in no instance shall the Contractor seek nor will the State pay for Services not utilized or costs not specified on an order for Services regardless of Contractors' liability or costs for materials, equipment, Software, facilities, or sub- contracts. The Contractor shall submit the proposal promptly, but no later than thirty (30) days after the effective date of termination, unless a different time is provided in the Statement of Work or in the Notice of Termination.
d) The Contractor and the State may agree upon the whole or any part of the amount to be paid or refunded as requested under subsection (c) above; e) Unless otherwise set forth in the Statement of Work, if the Contractor and the State fail to agree on the amount to be paid because of the termination for convenience.
i. The State will pay the Contractor the Contract price for Services accepted or utilized by the State; provided that in no event will total payments exceed the amount payable to the Contractor if the Contract had been
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fully performed.
f) The Contractor will use generally accepted accounting principles, or accounting principles otherwise agreed to in writing by the parties, and sound business practices in determining all costs claimed, agreed to, or determined under this clause.
17. TERMINATION FOR DEFAULT:
a) The State may, subject to the clause titled "18. Force Majeure", by written notice of default to the Contractor, terminate this Contract in whole or in part if the Contractor fails to:
i. Perform the Services within the time specified in the Contract or any amendment thereto;
ii. Make progress, so that the lack of progress endangers performance of this Contract; or
ili. Perform any of the other provisions of this Contract. b) The State's right to terminate this Contract under subsection a) above, may be exercised only if the failure constitutes a material breach of this Contract and if the Contractor does not cure such failure within the time frame stated in the State's cure notice, which in no event will be less than thirty (30) days, unless otherwise provided.
c) Both parties, State and Contractor, upon any termination for default, have a duty to mitigate the damages suffered by it. The State shall pay Contract price for completed and accepted Deliverables and Services.
d) The rights and remedies of the State in this clause are in addition to any other rights and remedies provided by law or under this Contract, and are subject to the clause titled "20. Limitation of Liability."
18. FORCE MAJEURE:
Except for defaults of subcontractors at any tier, and any Contractor responsibilities concerning disaster recovery and/or business continuity, the Contractor shall not be liable for any excess costs if the failure to perform the Contract arises from causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include, but are not limited to:
a) Acts of God or of the public enemy, and
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b) Acts of the federal or State government in either its sovereign or contractual capacity.
If the failure to perform is caused by the default of a subcontractor at any tier, and if the cause of the default is beyond the control of both the Contractor and subcontractor, and without the fault or negligence of either, the Contractor shall not be liable for any excess costs for failure to perform.
19. RIGHTS AND REMEDIES OF STATE FOR DEFAULT:
a) In the event of the termination of the Contract, either in whole or in part, by reason of default or breach by the Contractor, any subsequent loss or damage sustained by the State in procuring any Deliverables or Services which the Contractor agreed to supply shall be borne and paid for by the Contractor (but subject to the clause entitled "Limitation of Liability"); and
b) The State reserves the right to offset the reasonable cost of all damages caused to the State against any outstanding invoices or amounts owed to the Contractor or to make a claim against the Contractor therefore.
20. LIMITATION OF LIABILITY:
a) Except as may be otherwise approved by the Department of General Services Deputy Director, Procurement Division or their designee, or the Department of Technology, Deputy Director, Statewide Technology Procurement, or designee, as applicable, Contractor's liability for damages to the State for any cause whatsoever, and regardless of the form of action, whether in Contract or in tort, shall be limited to the Purchase Price. For purposes of this subsection a), "Purchase Price" will mean the aggregate Contract price; except that, with respect to a Contract under which multiple purchase orders will be issued (e.g., a Master Agreement or Multiple Award Schedule contract), "Purchase Price" will mean the total price of the purchase order for the Deliverable(s) or Service(s) that gave rise to the loss, such that the Contractor will have a separate limitation of liability for each purchase order. b) The foregoing limitation of liability shall not apply:
i. to any liability under provisions herein entitled "Compliance with Statutes and Regulations";
ii. to liability under provisions herein entitled "Patent, Copyright, and Trade Secret Indemnity" or to any other liability (including without limitation indemnification obligations) for infringement of third party intellectual property rights;
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ili. to claims arising under provisions herein calling for indemnification for third party claims against the State for death, bodily injury to persons or damage to real or tangible personal property caused by the Contractor's negligence or willful misconduct;
iv. to costs or attorney's fees that the State becomes entitled to recover as a prevailing party in any action; or
v. to direct costs of mitigation, remediation, and/or notification obligations set forth in the Saas Special Provisions, resulting from any Data Breach as defined therein, and resulting from the Contractor's failure to perform or negligent acts of its personnel.
c) The State's liability for damages for any cause whatsoever, and regardless of the form of action, whether in Contract or in tort, shall be limited to the Purchase Price, as that term is defined in subsection a) above. Nothing herein shall be construed to waive or limit the State's sovereign immunity or any other immunity from suit provided by law.
d) IN NO EVENT WILL EITHER THE CONTRACTOR OR THE STATE BE LIABLE
FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR PUNITIVE
DAMAGES, EVEN IF NOTIFICATION HAS BEEN GIVEN AS TO THE
POSSIBILITY OF SUCH DAMAGES, EXCEPT (I) TO THE EXTENT THAT THE
CONTRACTOR'S LIABILITY FOR SUCH DAMAGES IS SPECIFICALLY SET
FORTH IN THE STATEMENT OF WORK OR (II) TO THE EXTENT THAT THE
CONTRACTOR'S LIABILITY FOR SUCH DAMAGES ARISES OUT OF
SUBSECTION b) (i), b)(ii), OR b)(iv) ABOVE.
21. INDEMNIFICATION:
The Contractor agrees to indemnify, defend and save harmless the State, its officers, agents and employees from any and all third party claims, costs (including without limitation reasonable attorneys' fees), and losses due to the injury or death of any individual, or the loss or damage to any real or tangible personal property, resulting from the willful misconduct or negligent acts or omissions of the Contractor or any of its affiliates, agents, subcontractors, employees, suppliers, or laborers furnishing or supplying work, Services, materials, or supplies in connection with the performance of this Contract. Such defense and payment will be conditional upon the following:
a) The State will notify the Contractor of any such claim in writing and tender the defense thereof within a reasonable time; and
b) The Contractor will have sole control of the defense of any action on such claim
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and all negotiations for its settlement or compromise; provided that i. when substantial principles of government or public law are involved, when litigation might create precedent affecting future State operations or liability, or when involvement of the State is otherwise mandated by law, the State may participate in such action at its own expense with respect to attorneys' fees and costs (but not liability);
ii. where a settlement would impose liability on the State, affect principles of California government or public law, or impact the authority of the State, the Department of General Services or the Department of Technology, as applicable, will have the right to approve or disapprove any settlement or compromise, which approval will not unreasonably be withheld or delayed; and
ili. the State will reasonably cooperate in the defense and in any related settlement negotiations.
22. INVOICES:
Unless otherwise specified, invoices shall be sent to the address set forth herein.
Invoices shall be submitted in triplicate and shall include the Contract number; release order number (if applicable); item number; unit price, extended item price and invoice total amount. State sales tax and/or use tax shall be itemized separately and added to each invoice as applicable.
23. REQUIRED PAYMENT DATE:
Payment will be made in accordance with the provisions of the California Prompt Payment Act, Government Code section 927 et. seq. Unless expressly exempted by statute, the Act requires State agencies to pay properly submitted, undisputed invoices not more than forty-five (45) days after:
a) the date of acceptance of Deliverables or performance of Services; or b) receipt of an undisputed invoice, whichever is later.
24. TAXES:
Unless otherwise required by law:
a) the State of California is exempt from Federal excise taxes; and b) the State will only pay for any applicable State or local sales or use taxes on the services rendered or Goods supplied to the State pursuant to this Contract.
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25. CONTRACT MODIFICATION:
a) No amendment or variation of the terms of this Contract shall be valid unless made in writing, signed by the parties and approved as required. No oral understanding or agreement not incorporated in the Contract is binding on any of the parties. b) Notwithstanding subsection a) above, service agreements may be modified by Contractor from time to time, but any such modifications will not degrade the functionality or security features of the SaaS. Service agreements shall be subject to section 11(f) Order of Precedence.
26. CONFIDENTIALITY OF DATA:
a) All Customer Data made available to the Contractor in order to carry out this Contract, or which become available to the Contractor in carrying out this Contract, shall be protected by the Contractor from unauthorized use and disclosure by use of the same or more effective confidentiality requirements as are applicable to the State. The identification of all such confidential data and information as well as the State's confidentiality requirements for protection of such data and information from unauthorized use and disclosure shall be provided by the State in writing to the Contractor. If the methods and procedures employed by the Contractor for the protection of the Contractor's data and information are deemed by the State to be adequate for the protection of the State's confidential information, such methods and procedures may be used, with the written consent of the State, to carry out the intent of this paragraph. Any additional requirements to ensure confidentiality of data shall be set forth in the SOW. The Contractor shall not be required under the provisions of this paragraph to keep confidential any data or information which is or becomes publicly available, is already rightfully in the Contractor's possession without obligation of confidentiality, is independently developed by the Contractor outside the scope of this Contract, or is rightfully obtained from third parties. Contractor shall sign a security and confidentiality statement. Contractor is responsible for all Contractor personnel assigned to this Contract and will have appropriate agreements in place to enable Contractor to meet its obligations hereunder. b) The parties acknowledge information transmitted by the State to the Contractor and/or Service Provider may inadvertently contain Federal Tax Information (FTI).
The State will use all reasonable efforts to prevent the transmittal of FTI to Contractor and/or Service Provider under this Contract. The State further acknowledges that the Contractor and/or Service Provider does not require any "access" to, or "receipt" or "storage" of FTI to perform the Services under the
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Contract. The Contractor and/or Service Provider further acknowledges that Contractor and/or Service Provider shall not knowingly access or permit access to such FTI, unless directed by the State. Access to FTl is out-of-scope of the Services. To the extent that Contractor's and/or Service Provider's access to FTI is "incidental" to Contractor's provision of Services, it is the parties' view that such incidental exposure should not legally subject Contractor and/or Service Provider to the Internal Revenue Service (IRS) requirements set forth in IRS Publication 1075, section 11.2. If, however, the IRS ultimately takes a contrary position, and determines that Contractor, Service Provider and/or the State should have nevertheless complied with the requirements of IRS Publication 1075, the parties will immediately commence an evaluation of the feasibility of continued performance under the Contract.
27. NEWS RELEASES:
Unless otherwise exempted, news releases, endorsements, advertising, and social media content pertaining to this Contract shall not be made without prior written approval of the Department of General Services.
28. DOCUMENTATION:
The Contractor agrees to provide to the State, at no charge, all Documentation as described within the Statement of Work, and updated versions thereof, which are necessary or useful to the State in its use of the equipment, Services, or Software provided hereunder. The Contractor agrees to provide additional Documentation at prices not in excess of charges made by the Contractor to its other customers for similar Documentation.
29. RIGHTS IN WORK PRODUCT:
a) All inventions, discoveries, intellectual property, technical communications and records originated or prepared by the Contractor pursuant to this Contract including papers, reports, charts, customized software, and other Documentation or improvements thereto, and including the Contractor's administrative communications and records relating to this Contract (collectively, the "Work Product"), shall be the Contractor's exclusive property. The provisions of this subsection "a)" may be revised in a Statement of Work.
b) Software, other components of SaaS, and materials developed or otherwise obtained by or for the Contractor or its affiliates independently of this Contract or applicable purchase order ("Pre-Existing Materials") do not constitute Work Product.
If the Contractor creates derivative works of Pre-Existing Materials, the elements of
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such derivative works created pursuant to this Contract constitute Work Product, but other elements do not. Nothing in this Section 29 will be construed to interfere with the Contractor's or its affiliates' ownership of Pre- Existing Materials. c) The State will have Government Purpose Rights to the Work Product as Deliverable or delivered to the State hereunder. "Government Purpose Rights" are the unlimited, irrevocable, worldwide, perpetual, royalty-free, non-exclusive rights and licenses to use, modify, reproduce, perform, release, display, create derivative works from, and disclose the Work Product. "Government Purpose Rights" also include the right to release or disclose the Work Product outside the State for any State government purpose and to authorize recipients to use, modify, reproduce, perform, release, display, create derivative works from, and disclose the Work Product for any State government purpose. Such recipients of the Work Product may include, without limitation, State contractors, California local governments, the U.S. federal government, and the state and local governments of other states. "Government Purpose Rights" do not include any rights to use, modify, reproduce, perform, release, display, create derivative works from, or disclose the Work Product for any commercial purpose. This subsection and the rights thereunder may be modified as required for federally funded SaaS pursuant to federal law or regulations, including, but not limited to, 7 CFR 277.18 and 45 CFR 95.617. d) The ideas, concepts, know-how, or techniques relating to data processing, developed during the course of this Contract by the Contractor or jointly by the Contractor and the State, may be used by either party without obligation of notice or accounting.
e) This Contract shall not preclude the Contractor from developing materials outside this Contract that are competitive, irrespective of their similarity to materials which might be delivered to the State pursuant to this Contract.
30. SOFTWARE LICENSE:
A Service may require the use of Software Products to facilitate use of the Service.
Unless otherwise specified in the Statement of Work, the Contractor hereby grants to the State and the State accepts from the Contractor, subject to the terms and conditions of this Contract, a royalty-free, non-exclusive license to use the Software
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Products in this Contract. The State may use the Software Products only in connection with use of the Service and according to any licensing terms if specified in a Statement of Work or otherwise in the Contract. Acceptance of Software (including third party Software) will be governed by the terms and conditions of this Contract.
31. PROTECTION OF PROPRIETARY SOFTWARE AND OTHER PROPRIETARY DATA:
a) The State agrees that all material appropriately marked or identified in writing as proprietary and furnished hereunder by the Contractor are provided for the State's exclusive use for the purposes of this Contract only. All such proprietary data shall remain the property of the Contractor. The State agrees to take all reasonable steps to ensure that such proprietary data are not disclosed to others, without prior written consent of the Contractor, subject to the California Public Records Act, or other lawful process (e.g., in response to a subpoena);
b) The State will ensure, prior to disposing of any media, that any licensed materials contained thereon have been erased or otherwise destroyed; and c) The State agrees that it will take appropriate action by instruction, agreement or otherwise with its employees or other persons permitted access to proprietary data to satisfy its obligations in this Contract with respect to use, copying, modification, protection and security of proprietary materials and data, subject to the California Public Records Act and other applicable law.
32. FUTURE RELEASES:
Unless otherwise specifically provided in the Statement of Work, if improved versions (e.g., patches, bug fixes, updates or releases) or upgrades of any SaaS versions or Software Product are developed by the Contractor, and are made available to other customers, they will be made available to the State at no additional cost only if such are made available to other customers at no additional cost.
33. ENCRYPTION AND AUTHORIZATION KEYS:
Upon initiation of Service, Contractor will provide all encryption and authorization keys required by the State to operate or access the Software Products or Services.
34. PATENT, COPYRIGHT AND TRADE SECRET INDEMNITY:
a) Contractor will indemnify, defend, and save harmless the State, its officers, agents, and employees, from any and all third party claims, costs (including without limitation reasonable attorneys' fees), and losses for infringement or violation of any U.S.
Intellectual Property Right by any product or service provided hereunder. With
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respect to claims arising from Software manufactured by a third party and sold by Contractor as a reseller, Contractor will pass through to the State such indemnity rights as it receives from such third party ("Third Party Obligation") and will cooperate in enforcing them; provided that if the third party manufacturer fails to honor the Third Party Obligation, Contractor will provide the State with indemnity protection equal to that called for by the Third Party Obligation, but in no event greater than that called for in the first sentence of this Section).
Unless a Third Party Obligation provides otherwise, the defense and payment obligations set forth in this Section will be conditional upon the following:
i. The State will notify the Contractor of any such claim in writing and tender the defense thereof within a reasonable time; and ii. The Contractor will have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; provided that (a) when substantial principles of government or public law are involved, when litigation might create precedent affecting future State operations or liability, or when involvement of the State is otherwise mandated by law, the State may participate in such action at its own expense with respect to attorneys' fees and costs (but not liability); (b) where a settlement would impose liability on the State, affect principles of California government or public law, or impact the authority of the State, the Department of General Services or the Department of Technology, as applicable, will have the right to approve or disapprove any settlement or compromise, which approval will not unreasonably be withheld or delayed; and (c) the State will reasonably cooperate in the defense and in any related settlement negotiations. b) Should the Software Products or Services, or the operation thereof, become, or in the Contractor's opinion are likely to become, the subject of a claim of infringement or violation of a U.S. Intellectual Property Right, the State shall, subject to prior approval, permit the Contractor, at its option and expense, either to procure for the State the right to continue using the Services, or to replace or modify the same so that they become non-infringing. If none of these options can reasonably be taken, or if the use of such Services by the State shall be prevented by injunction, the State shall then have the option of terminating this Contract, or applicable portions thereof, without penalty or termination charge and the Contractor shall refund any sums the State has paid the Contractor less any reasonable amount for use or damage. c) The Contractor shall have no liability to the State under any provision of this clause with respect to any claim of patent, copyright or trade secret infringement
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which is based upon:
i. The combination or utilization of Deliverables furnished hereunder with Goods or Software not made or furnished by the Contractor; or ii. The combination or utilization of Software or Services not made or furnished by the Contractor, and introduced into the States computing environment; or
ili. The modification initiated by the State, or a third party at the State's direction, of any Software or Service furnished hereunder; or iv. The combination or utilization of Software furnished hereunder with non- Contractor supplied Software.
d) The Contractor certifies that it has appropriate systems and controls in place to ensure that State funds will not be used in the performance of this Contract for the acquisition, operation or maintenance of Software in violation of any U.S.
Intellectual Property laws.
35. DISPUTES:
a) The parties shall deal in good faith and attempt to resolve potential disputes informally. If the dispute persists, the Contractor shall submit to the contracting Department Director or designee a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to or involving this Contract. Contractor's written demand shall be fully supported by factual information, and if such demand involves a cost adjustment to the Contract, the Contractor shall include with the demand a written statement signed by an authorized person indicating that the demand is made in good faith, that the supporting data are accurate and complete and that the amount requested accurately reflects the Contract adjustment for which Contractor believes the State is liable. The contracting Department Director or designee shall have thirty (30) days after receipt of Contractor's written demand invoking this Section "Disputes" to render a written final decision. If a written decision is not rendered within thirty (30) days after receipt of the Contractor's demand, it shall be deemed a final decision adverse to the Contractor's contention.
b) Pending the final resolution of any dispute arising under, related to or involving this Contract, Contractor agrees to diligently proceed with the performance of this Contract, including the delivery of Goods or providing of Services in accordance with the State's instructions regarding this Contract. Contractor's failure to diligently
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proceed in accordance with the State's instructions regarding this Contract shall be considered a material breach of this Contract.
c) Any final decision of the State shall be expressly identified as such, shall be inwriting, and shall be signed by the contracting Department Director, or designee. The State's final decision shall be conclusive and binding regarding the dispute unless the Contractor commences an action in a court of competent jurisdiction to contest such decision within ninety (90) days following the date of the final decision or one (1) year following the accrual of the cause of action, whichever is later. d) For disputes involving purchases made by the Department of General Services, Procurement Division, the Contractor shall submit to the Department Director or designee a written demand for a final decision, which shall be fully supported in the manner described in subsection a) above. The Department Director or designee shall have thirty (30) days to render a final decision. If a final decision is not rendered within thirty (30) days after receipt of the Contractor's demand, it shall be deemed a final decision adverse to the Contractor's contention. The final decision shall be conclusive and binding regarding the dispute unless the Contractor commences an action in a court of competent jurisdiction to contest such decision within ninety (90) days following the date of the final decision or one (1) year following the accrual of the cause of action, whichever is later.
e) The dates of decision in this section may be modified by mutual consent, as applicable, excepting the time to commence an action in a court of competent jurisdiction.
36. STOP WORK:
a) The State may, at any time, by written Stop Work Order to the Contractor, require the Contractor to stop all, or any part, of the called for by this Contract in the Statement of Work for a period up to forty-five (45) days after the Stop Work Order is delivered to the Contractor, and for any further period to which the parties may agree. The Stop Work Order shall be specifically identified as such and shall indicate it is issued under this clause. Upon receipt of the Stop Work Order, the Contractor shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the Stop Work Order during the period of work stoppage. Within a period of forty-five (45) days after a Stop Work Order is delivered to the Contractor, or within any extension of that period to which the parties shall have agreed, the State shall either:
i. Cancel the Stop Work Order; or
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ii. Terminate the work covered by the Stop Work Order as provided for in the Termination for Default or the Termination for Convenience clause of this Contract.
b) If a Stop Work Order issued under this clause is canceled or the period of the Stop Work Order or any extension thereof expires, the Contractor shall resume work. The State shall make an equitable adjustment in the delivery schedule, the Contract price, or both, and the Contract shall be modified, in writing, accordingly, if:
i. The Stop Work Order results in an increase in the time required for, or in the Contractor's cost properly allocable to the performance of any part of this Contract; and
ii. The Contractor asserts its right to an equitable adjustment within sixty (60) days after the end of the period of work stoppage; provided, that if the State decides the facts justify the action, the State may receive and act upon a proposal submitted at any time before final payment under this Contract.
c) If a Stop Work Order is not canceled and the work covered by the Stop Work Order is terminated in accordance with the provision entitled Termination for the Convenience of the State, the State shall allow reasonable costs resulting from the Stop Work Order in arriving at the termination settlement. d) The State shall not be liable to the Contractor for loss of profits because of a Stop Work Order issued under this clause.
37. EXAMINATION AND AUDIT:
The Contractor agrees that the State or its designated representative shall have the right to review and copy any records and supporting documentation directly pertaining to performance of this Contract. The Contractor agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated. The Contractor agrees to allow the auditor(s) access to such records during normal business hours and in such a manner so as to not interfere unreasonably with normal business activities and to allow interviews of any employees or others who might reasonably have information related to such records. Further, the Contractor agrees to include a similar right of the State to audit records and interview staff in any subcontract related to performance of this Contract. The State shall provide reasonable advance written notice of such audits) to the Contractor.
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38. FOLLOW-ON CONTRACTS:
a) If the Contractor or its affiliates provides Technical Consulting and Direction (as defined below), the Contractor and its affiliates:
i. will not be awarded a subsequent Contract to supply the service or system, or any significant component thereof, that is used for or in connection with any subject of such Technical Consulting and Direction; and
il. will not act as consultant to any person or entity that does receive a Contract described in subsection (I). This prohibition will continue for one (1) year after termination of this Contract or completion of the Technical Consulting and Direction, whichever comes later.
b) "Technical Consulting and Direction" means services for which the Contractor received compensation from the State and includes:
development of or assistance in the development of work statements, specifications, solicitations, feasibility studies, or project approval documentation;
ii. development or design of test requirements;
ili. evaluation of test data;
iv. direction of or evaluation of another Contractor;
v. provision of formal recommendations regarding the acquisition of Information Technology products or services; or
vi. provisions of formal recommendations regarding any of the above. For purposes of this Section, "affiliates" are employees, directors, partners, joint venture participants, parent corporations, subsidiaries, or any other entity controlled by, controlling, or under common control with the Contractor.
Control exists when an entity owns or directs more than fifty percent (50%) of the outstanding shares or securities representing the right to vote for the election of directors or other managing authority.
c) To the extent permissible by law, the Director of the Department of General Services, or designee, may waive the restrictions set forth in this Section by written notice to the Contractor if the Director determines their application would not be in the State's best interest. Except as prohibited by law, the restrictions of this Section will not apply:
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i. to follow-on advice given by vendors of commercial off-the-shelf products, including Software and Hardware, on the operation, integration, repair, or maintenance of such products after sale; or
ii. where the State has entered into a master agreement for Software or services and the scope of work at the time of Contract execution expressly calls for future recommendations among the Contractor's own products. d) The restrictions set forth in this Section are in addition to conflict of interest restrictions imposed on public contractors by California law ("Conflict Laws"). In the event of any inconsistency, such Conflict Laws override the provisions of this Section, even if enacted after execution of this Contract.
39. PRIORITY HIRING CONSIDERATIONS:
If this Contract includes services in excess of $200,000, the Contractor shall give priority consideration in filling vacancies in positions funded by the Contract to qualified recipients of aid under Welfare and Institutions Code section 11200 in accordance with PCC section 10353.
40. COVENANT AGAINST GRATUITIES:
The Contractor warrants that no gratuities (in the form of entertainment, gifts, or otherwise) were offered or given by the Contractor, or any agent or representative of the Contractor, to any officer or employee of the State with a view toward securing the Contract or securing favorable treatment with respect to any determinations concerning the performance of the Contract. For breach or violation of this warranty, the State shall have the right to terminate the Contract, either in whole or in part and any loss or damaged sustained by the State in procuring on the open market any items which the Contractor agreed to supply shall be borne and paid for by the Contractor. The rights and remedies of the State provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided in law or equity.
41. NONDISCRIMINATION CLAUSE:
a) During the performance of this Contract, the Contractor and its subcontractors shall not unlawfully discriminate, harass or allow harassment, against any employee or applicant for employment because of sex, sexual orientation, race, color, ancestry, religious creed, national origin, disability (including HIV and AIDS), medical condition (cancer), age, marital status, and denial of family care leave. The Contractor and subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment.
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The Contractor and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, section 12990 et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations are incorporated into this Contract by reference and made a part hereof as if set forth in full. The Contractor and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement; and
b) The Contractor shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the Contract.
42. NATIONAL LABOR RELATIONS BOARD CERTIFICATION:
The Contractor swears under penalty of perjury that no more than one final, unappealable finding of contempt of court by a federal court has been issued against the Contractor within the immediately preceding two-year period because of the Contractor's failure to comply with an order of the National Labor Relations Board. This provision is required by, and shall be construed in accordance with, PC section 10296.
43. ASSIGNMENT OF ANTITRUST ACTIONS:
Pursuant to Government Code sections 4552, 4553, and 4554, the following provisions are incorporated herein:
a) In submitting a bid to the State, the supplier offers and agrees that if the bid is accepted, it will assign to the State all rights, title, and interest in and to all causes of action it may have under section 4 of the Clayton Act (15 U.S.C. 15) or under the Cartwright Act (Chapter 2 ., commencing with section 16700, of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of Goods, material or other items, or services by the supplier for sale to the State pursuant to the solicitation. Such assignment shall be made and become effective at the time the State tender's final payment to the supplier;
b) If the State receives, either through judgment or settlement, a monetary recovery for a cause of action assigned under this chapter, the assignor shall be entitled to receive reimbursement for actual legal costs incurred and may, upon demand, recover from the State any portion of the recovery, including treble damages, attributable to overcharges that were paid by the assignor but were not paid by the State as part of the bid price, less the expenses incurred in obtaining that portion of
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the recovery; and
c) Upon demand in writing by the assignor, the assignee shall, within one year from such demand, reassign the cause of action assigned under this part if the assignor has been or may have been injured by the violation of law for which the cause of action arose and:
i. the assignee has not been injured thereby, or
ii. the assignee declines to file a court action for the cause of action.
44. DRUG-FREE WORKPLACE CERTIFICATION:
The Contractor certifies under penalty of perjury under the laws of the State of California that the Contractor will comply with the requirements of the Drug-Free Workplace Act of 1990 (Government Code section 8350 et seq.) and will provide a drug-free workplace by taking the following actions:
a) Publish a statement notifying employees that unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited and specifying actions to be taken against employees for violations, as required by Government Code section 8355(a);
b). Establish a Drug-Free Awareness Program as required by Government Code section 8355(b) to inform employees about all of the following:
i. the dangers of drug abuse in the workplace;
ii. the person's or organization's policy of maintaining a drug-free workplace;
ili. any available counseling, rehabilitation and employee assistance programs; and,
iv. penalties that may be imposed upon employees for drug abuse violations.
c) Provide, as required by Government Code section 8355(c), that every employee who works on the proposed or resulting Contract:
i. will receive a copy of the company's drug-free policy statement; and ii. Will agree to abide by the terms of the company's statement as a condition of employment on the Contract.
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45. FOUR-DIGIT DATE COMPLIANCE:
Contractor warrants that it will provide only Four-Digit Date Compliant (as defined below) Deliverables and Services to the State. "Four-Digit Date Compliant" Deliverables and Services can accurately process, calculate, compare, and sequence date data, including without limitation date data arising out of or relating to leap years and changes in centuries. This warranty and representation is subject to the warranty terms and conditions of this Contract and does not limit the generality of warranty obligations set forth elsewhere herein.
46. SWEATFREE CODE OF CONDUCT:
a) Contractor declares under penalty of perjury that no equipment, materials, or supplies furnished to the State pursuant to the Contract have been produced in whole or in part by sweatshop labor, forced labor, convict labor, indentured labor under penal sanction, abusive forms of child labor or exploitation of children in sweatshop labor, or with the benefit of sweatshop labor, forced labor, convict labor, indentured labor under penal sanction, abusive forms of child labor or exploitation of children in sweatshop labor. The Contractor further declares under penalty of perjury that they adhere to the Sweat free Code of Conduct as set forth on the California Department of Industrial Relations website located at www.dir.ca.gov, and Public Contract Code section 6108; and b) The Contractor agrees to cooperate fully in providing reasonable access to its records, documents, agents or employees, or premises if reasonably required by authorized officials of the State, the Department of Industrial Relations, or the Department of Justice to determine the Contractor's compliance with the requirements under paragraph (a).
47. RECYCLED CONTENT REQUIREMENTS:
The Contractor shall certify in writing under penalty of perjury, the minimum, if not exact, percentage of post-consumer material (as defined in the Public Contract Code (PCC) section 12200-12209), in products, materials, goods, or supplies offered or sold to the State that fall under any of the statutory categories regardless of whether the product meets the requirements of Section 12209. The certification shall be provided by the contractor, even if the product or good contains no post-consumer recycled material, and even if the post-consumer content is unknown. With respect to printer or duplication cartridges that comply with the requirements of section 12156(e), the certification required by this subdivision shall specify that the cartridges so comply (PCC 12205 (b)(2)). A state agency contracting officer may waive the certification requirements if the percentage of
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post-consumer material in the products, materials, goods, or supplies can be verified in a written advertisement, including, but not limited to, a product label, a catalog, or a manufacturer or vendor Internet web site.
Contractors are to use, to the maximum extent economically feasible in the performance of the contract work, recycled content products (PCC 12203(d)).
48. CHILD SUPPORT COMPLIANCE ACT:
For any Contract in excess of $100,000, the Contractor acknowledges in accordance with PCC section 7110, that:
a) The Contractor recognizes the importance of child and family support obligations and shall fully
b) comply with all applicable State and federal laws relating to child and family support enforcement, including, but not limited to, disclosure of information and compliance with earnings assignment orders, as provided in Chapter 8 (commencing with section 5200) of Part 5 of Division 9 of the Family Code; and c) The Contractor, to the best of its knowledge, is fully complying with the earnings assignment orders of all employees and is providing the names of all new employees to the New Hire Registry maintained by the California Employment Development Department.
49. AMERICANS WITH DISABILITIES ACT AND PUBLIC WEBSITE ACCESSIBILITY a) The Contractor assures the State that the Contractor complies with the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.). The State is responsible for ensuring that public websites are accessible to both the general public and that internal electronic and Information Technology systems are accessible by state employees, including persons with disabilities. Contractor shall assist the State in meeting its responsibilities.
b) In accordance with Cal. Gov. Code section 7405(b), the Contractor shall have an ongoing obligation to promptly respond to and resolve any complaint regarding accessibility of its electronic and Information Technology products and Services that is brought to the attention of the Contractor, pursuant to Section 7(e) above.
50. ELECTRONIC WASTE RECYCLING ACT OF 2003:
The Contractor certifies that it complies with the applicable requirements of the Electronic Waste Recycling Act of 2003, Chapter 8.5, Part 3 of Division 30, commencing with section 42460 of the Public Resources Code. The Contractor shall
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maintain documentation and provide reasonable access to its records and documents that evidence compliance.
51. USE TAX COLLECTION:
In accordance with PCC section 10295.1, the Contractor certifies that it complies with the requirements of section 7101 of the Revenue and Taxation Code.
Contractor further certifies that it will immediately advise the State of any change in its retailer's seller's permit or certification of registration or applicable affiliate's seller's permit or certificate of registration as described in subdivision (a) of PCC section 10295.1.
52. EXPATRIATE CORPORATIONS:
Contractor hereby declares that it is not an expatriate corporation or subsidiary of an expatriate corporation within the meaning of PCC sections 10286 and 10286.1, and is eligible to contract with the State.
53. DOMESTIC PARTNERS:
For contracts over $100,000 executed or amended after January 1, 2007, the Contractor certifies that the Contractor is in compliance with Public Contract Code section 10295.3.
54. SMALL BUSINESS PARTICIPATION AND DVBE PARTICIPATION REPORTING REQUIREMENTS:
a) If for this Contract, the Contractor made a commitment to achieve small business participation, then the Department requires the Contractor upon completion of this Contract (or within such other time period as may be specified elsewhere in this Contract) to report the actual percentage of small business participation that was achieved. (Govt.
Code § 14841); and
b) If for this Contract, the Contractor made a commitment to achieve the disabled veteran business enterprise (DVBE) participation goal, then, pursuant to Mil. & Vets. Code § 999.5(d), upon completion of this Contract, the Department requires the Contractor to certify using the Prime Contractor's Certification - DVBE Subcontracting Report (STD 817), all of the following:
c) the total amount the prime Contractor received under the Contract; d) the name, address, Contract number and certification ID number of the DVBE(s) that participated in the performance of this Contract;
e) the amount and percentage of work the prime Contractor committed to provide to one or more DVBE(s) under the requirement of the Contract and the total payment each DVBE
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received from the prime Contractor;
f) that all payments under the Contract have been made to the DVBE(s); and g) the actual percentage of DVBE participation that was achieved. Upon request, the prime Contractor shall provide proof of payment for the work.
If, for this Contract, Contractor made a commitment to achieve the DVBE participation goal, the Department will withhold $10,000 from the final payment, or the full final payment if less than $10,000, until the Contractor complies with the certification requirements above. A Contractor that fails to comply with the certification requirement shall, after written notice, be allowed to cure the defect. Notwithstanding any other law, if, after at least 15 calendar days but not more than 30 calendar days from the date of written notice, the prime Contractor refuses to comply with the certification requirements, the Department shall permanently deduct $10,000 from the final payment, or the full payment if less than $10,000. (Mil. & Vets. Code § 999.7)
A person or entity that knowingly provides false information shall be subject to a civil penalty for each violation. (Mil. & Vets. Code § 999.5(d); Govt. Code § 14841) Contractor agrees to comply with the rules, regulations, ordinances, and statutes that apply to the DVBE program as defined in Section 999 of the Mil. & Vets. Code, including, but not limited to, the requirements of Section 999.5(d). (PCC Code § 10230)
55. LOSS LEADER:
It is unlawful for any person engaged in business within this state to sell or use any article or product as a "loss leader" as defined in section 17030 of the Business and Professions Code. (PCC 12104.5(b).).
56. EXECUTIVE ORDER N-6-22-RUSSIA SANCTIONS:
The Contractor shall comply with Executive Order N-6-22 (the EO) regarding Economic Sanctions against Russia and Russian entities and individuals. "Economic Sanctions" refers to sanctions imposed by the U.S. government in response to Russia's actions in Ukraine, as well as any sanctions imposed under state law. The EO directs state agencies to terminate contracts with, and to refrain from entering any new contracts with, individuals or entities that are determined to be a target of Economic Sanctions. Accordingly, should the State determine Contractor is a target of Economic Sanctions or is conducting prohibited transactions with sanctioned individuals or entities, that shall be grounds for termination of this agreement. The State shall provide Contractor advance written notice of such termination, allowing Contractor at least 30 calendar days to provide a written response.
Termination shall be at the sole discretion of the State.