Attachment A - Cooperative Agreement Dell CMAS — City Council and Concurrent Authorities, April 5, 2022

COOPERATIVE/PIGGYBACK PURCHASE AGREEMENT

AGREEMENT SUMMARY:

1. Cooperative/Piggyback
Name:

Department of General Services California Multiple
Award Schedule (CMAS)

2. Contractor:

Dell Marketing L.P.

3. Cooperative Agency
Agreement Name and
Agreement Number:

California Multiple Award Schedule ( CMAS)
Contract for Information Technology Goods &
Services, Agreement Number 3-16-70-0012B and
base GSA schedule GS-35F-059DA

4. Cooperative Agency Initial
Agreement Term:

Start Date: 7/15/2016
End Date: 2/28/2021

5. Cooperative Agency’s
Agreement-Options to
extend:

4.5 Years

6. Cooperative Agency
Amended Term:
3/1/2021-11/19/2025

7. Cooperative Agency
Remaining Options to
Renew:

N/A

8. City of Stockton
Cooperative Purchase
Agreement Term:

Start Date: 4/15/2022
End Date: 11/19/2025

9. City of Stockton
Cooperative/ Piggyback
Purchase Agreement
Amount:

Not to Exceed $4,000,000 for the term of the
Agreement.

AGREEMENT

The City of Stockton, a California municipal corporation on behalf of itself and its associated entities ("City"), and the above-named Contractor (“Contractor”), do hereby agree that City shall be granted the pricing, terms, and conditions under the above referenced CMAS Contract for Information Technology Goods & Services, Agreement Number 3 -16-70-0012B (“COOP”) as such may be amended from time to time . The COOP and associated documents referenced in the agreement are incorporated herein as Exhibit A to this City Cooperative/Piggyback Purchase Agreement (“Agreement”).

ATTACHMENT A
1 Contractor shall grant such pricing, terms, and conditions to City for all procurements of goods an d services, whether taking place on a City purchase order, purchasing card (credit card), or other purchasing modality, whether via telephone, via the Contractor website, or via direct purchase at a Contractor retail location.

1. Agreement Term: The Term of this Agreement shall remain in effect from 4/15/2022 through 11/19/2025 unless terminated earlier by the City. If the Cooperative/Piggyback Agency extends the COOP with Contractor by a written amendment, the City has the option to extend the term of this Agreement by written amendment not to go beyond the term stated in the COOP fully executed amendment.

2. Insurance and Hold Harmless: In addition to the pricing, terms and conditions stated in the COOP and the associated documents incorporated herein as Exhibit A , Contractor shall, at Contractor’s sole cost and expense and for the full term of the Agreement or any extension thereof, obtain and maintain at least all the insurance requirements listed in attached Exhibit B.

To the fullest extent permitted by law, Contractor shall hold harmless, defend at its own expense, and indemnify the City of Stockton, its officers, employees, agents, and volunteers, against any and all liability, claims, losses, damages, or expenses, including reasonable attorney’s fees, arising from all acts or omissions of contractor or its officers, agents, or employees in rendering services under this contract; excluding, however, such liability, claims, losses, damages, or expenses arising from the City of Stockton’s sole negligence or willful acts. The duty to defend and the duty to indemnify are separate and distinct obligations. The indemnification obligations of this section shall surviv e the termination of this Agreement.

3. Compensation: City and Contractor do her eby enter into this Agreement for technology goods and services available in the above -named COOP and associated documents incorporated herein as Exhibit A. In no way, shall payment to the Contractor during the term of this Agreement exceed $4,000,000 for the purchase of technology goods or services (e.g., desktop computers, mobile data computers, laptops, tablets, small servers, computer network equipment and associated peripheral parts ). Any person signing this Agreement on behalf of City or Contractor does warrants that he or she has full authority to do so.

4. Governing Law. California law shall govern any legal action pursuant to this Agreement with venue for all claims in the Superior Court of the County of San Joaquin, Stockton Branch or, where applicable, in the Federal District Court of California, Eastern District, Sacramento Division.

ATTACHMENT A
2 This Agreement may be amended only by a writt en amendment , consistent with the COOP, signed by Contractor and City.

CITY OF STOCKTON DELL MARKETING L.P.

By: __________________________
Harry Black, City Manager Signature

____________________________
Print name

ATTEST: Title: ________________________

____________________________ [If Contractor is a corporation, signatures must Eliza R. Garza CMC, City Clerk comply with Corporations Code §313]

APPROVED AS TO FORM:

By: __________________________
___________________________ Signature
City Attorney,
__________________________
Print name

Title: _______________________

ATTACHMENT A
3 State of California

MULTIPLE AWARD SCHEDULE
Dell Marketing L.P.

Categor ies Information
CMAS NUMBER: 3-16-70-0012B
SUPPLEMENT NUMBER: 2
CMAS TERM DATES: 7/15/2016 through 11/19/2025
CMAS CATEGORY: Information Technology Goods & Services

APPLICABLE
TERMS & CONDITIONS:

June 7, 2019
(www.dgs.ca.gov/-/media/Divisions/PD/Acquisitions/
CMAS/IT-CMAS-Terms-and-Conditions.ashx?la=en&
hash=B41342080DE511121ECC253A04D62AC90CED
6123)
MAXIMUM ORDER LIMIT:

State Agencies: See Purchasing Authority
Dollar Threshold provision
Local Government Agencies: Unlimited
FOR USE BY: State & Local Government Agencies
BASE SCHEDULE #: GS-35F-059DA
BASE SCHEDULE HOLDER: Dell Marketing L.P.

This CMAS provides for the purchase, warranty, and installation of hardware and software, hardware maintenance and repair, software maintenance as a product, cloud computing services, and Information Technology (IT) consulting services. (See page 3 for the restrictions applicable to this CMAS.) This supplement is to extend this CMAS through 11/19/2025. In addition, this supplement replaces in its entirety the existing California Multiple Award Schedule (CMAS). The most current Ordering Instructions and Special Provisions, CMAS Terms and Conditions, and products and/or services are included herein. All purchase orders issued by State agencies shall incorporate these Ordering Instructions and Special Provisions, and CMAS Terms and Conditions. Please review these provisions carefully because they have changed.

Effective Date: 2/26/2021
Original Signature on File
BRYAN DUGGER, Program Analyst, California Multiple Award Schedules Unit

ATTACHMENT A
4 NOT
ICE: Products and/or services on this CMAS may be available on a Mandatory Statewide Contracts. If this is the case, the use of this CMAS is restricted unless the State agency has an approved exemption as explained in the Statewide Contract User Instructions. Information regarding Statewide Contracts can be obtained at the: Statewide Contract Index Listing (www.dgs.ca.gov/PD/About/Page-Content/PD-Branch-Intro-Accordion-List/Acquisitions/Statewide- Contracts?search=statewide contract listing). This requirement is not applicable to local government entities.

When implementing both IT consulting services and cloud computing solutions on the same purchase order, the IT consulting services provided are only to implement the cloud computing solutions covered.

The services provided under this CMAS are only in support of the products covered by this CMAS.

Agency non-compliance with the requirements may result in the loss of delegated authority to use the CMAS program.

CMAS contractor non-compliance with the requirements may result in termination.

ATTACHMENT A
5 CMAS PRODUCT & SERVICE CODES
Product & Service Codes listed below are for marketing purposes only. Review the base schedule for the products and/or services available.

Brand-Dell
Brand-EMC
Brand-VMWare
Computer-Laptop
Computer-PC
Hardware-Tablet
LAN/WAN-Wireless Network
Network-Component
Printer
Server-Network
Software
Software-Application

AVAILABLE PRODUCTS AND/OR SERVICES
All of the products in the base schedule are available within the scope of this CMAS.

The ordering agency must verify all products and/or services are currently available on the base General Services Administration (GSA) schedule. Access the GSA eLibrary at www.gsaelibrary.gsa.gov.

All of the job titles in the base schedule are available within the scope of this CMAS.

You may verify the following current information about the job titles available in the base schedule at the GSA eLibrary
(www.gsaelibrary.gsa.gov):
• Description of the functional requirements
• Minimum education and experience requirements
• Maximum pricing allowed (lower pricing acceptable)

EXCLUDED PRODUCTS AND/OR SERVICES
The introduction of new supplies and services, training courses, public works services with a requirement for State contractor licensing, and order-level materials are not available under this CMAS.

ATTACHMENT A
6 ISSUE PURCHASE ORDER TO
Agency purchase orders must be either mailed or emailed to the following:

Dell Marketing L.P.

One Dell Way, M/S RR1-33
Austin, TX 78682
Attn: Purchase Order Management
E-mail: [email protected]
Agencies with questions regarding products and/or services may contact the CMAS contractor as follows:

Contact: Amanda Hudson
Phone: ( 512) 720-4421
E-mail: [email protected]
TOP 500 DELINQUENT TAXPAYERS
In accordance with Public Contract Code (PCC) § 10295.4, and prior to placing an order for IT goods and/or services, agencies must verify with the Franchise Tax Board and the California Department of Tax and Fee Administration that this CMAS contractor’s name does not appear on either list of the 500 largest tax delinquencies pursuant to Section 7063 or 19195 of the Revenue and Taxation Code. See next paragraph for information.

The Franchise Tax Board’s list of Top 500 Delinquent Taxpayers is available at
www.ftb.ca.gov/about-ftb/newsroom/top-500-past-due-balances/index.html.

The California Department of Tax and Fee Administration’s list of Top 500 Sales & Use Tax Delinquencies in California is available at www.cdtfa.ca.gov/taxes-and-fees/top500.htm.

CALIFORNIA SELLER’S PERMIT
The CMAS contractor’s California Seller’s Permit Number is 030704896. Prior to placing an order with this company, agencies must verify that this permit is still valid at the California Department of Tax and Fee Administration website (cdtfa.ca.gov).

CMAS PRICES
The maximum prices allowed for the products and/or services available are those set forth in the base schedule.

The ordering agency is encouraged to seek prices lower than those in the base schedule. When responding to an agency’s Request for Offer (RFO), the CMAS contractor can offer lower prices to be competitive.

ATTACHMENT A
7 CALIFORNIA CIVIL RIGHTS LAW CERTIFICATION
Pursuant to Public Contract Code section 2010, effective January 1, 2017, applicants must certify their compliance with the California Civil Rights laws and Employer Discriminatory Policies (section 51 of the Civil Code, section 12960 of the Government Code). It is the agency’s responsibility to verify that the contractor has a California Civil Rights Law Certification on file.

WARRANTY
For warranties, see the base schedule, the CMAS Terms and Conditions, General Provisions, and CMAS Warranty.

CMAS contractor personnel shall have the experience, education and expertise as delineated in the base schedule.

DELIVERY
5-120 days after receipt of order, or as negotiated between agency and CMAS contractor and included in the purchase order, or as otherwise stipulated in the contract.

SHIPPING INSTRUCTIONS
F.O.B. (Free On Board) Destination. Seller pays the freight charges.

PURCHASING AUTHORITY DOLLAR THRESHOLD
Order limits for the purchase of goods and/or services is determined by the individual agency purchasing authority threshold.

No CMAS order may be executed by a State agency that exceeds that agency’s purchasing authority threshold. State agencies with approved purchasing authority, along with their dollar thresholds can be obtained at the List of State Departments with Approved Purchasing Authority

website (www.dgs.ca.gov/PD/Resources/Page-Content/Procurement-Division-Resources-List- Folder/List-of-State-Departments-with-Approved-Purchasing-Authority).

ACQUISITION OF IAAS AND/OR PAAS
If using this CMAS for the purpose of acquiring Infrastructure as a Service (IaaS) and/or Platform as a Service (PaaS), State agencies must first obtain approval to use this CMAS by the California Department of Technology (CDT) in accordance with TL 17-06 (www.cdt.ca.gov/wp-
content/uploads/2017/08/TL-17-06.pdf). State agencies must document CDT’s approval and maintain in the procurement file. Contact CDT for all questions related to the acquisition of IaaS and PaaS and TL 17-06.

ATTACHMENT A
8 HOW TO USE CMAS
Agencies must adhere to the detailed requirements in the State Contracting Manual (SCM) when using CMAS. The requirements for the following bullets are in the SCM, Volume 2, Chapter 6 (for non-IT), the SCM, Volume 3, Chapter 6 (for IT), and the SCM, Volume FISCal, Chapter 5 (FISCal):
• Develop a Request for Offer, which includes a Scope of Work (SOW), and Bidder Declaration form. For information on the Bidder Declaration requirements, see the SCM, Volume 2, Section 3.5.7 and Volume 3, Section 3.4.7.
• Search for potential CMAS contractors
on the CMAS website
(www.dgs.ca.gov/PD/About/Page-Content/PD-Branch-Intro-Accordion- List/Acquisitions/California-Multiple-Award-Schedules) and select “Find a CMAS Contractor.”
• Solicit offers from a minimum of 3 CMAS contractors including one small business and/or DVBE, if available, who are authorized to sell the products and/or services needed. • If soliciting offers from a certified DVBE, include the Disabled Veteran Business Enterprise Declarations form (Standard 843) in the Request for Offer. This declaration must be completed and returned by the DVBE prime contractor and/or any DVBE subcontractors. (See the SCM Volumes 2, 3, and FISCal, Chapter 3).
• This is not a bid transaction, so the small business preference, DVBE incentives, protest language, intents to award, evaluation criteria, advertising, etc., are not applicable. • If less than 3 offers are received, State agencies must document their file with the reasons why the other suppliers solicited did not respond with an offer. • Assess the offers received using best value methodology, with cost as one of the criteria. • Issue a Purchase Order to the selected CMAS contractor. • For CMAS transactions under $10,000, only one offer is required if the State agency can establish and document that the price is fair and reasonable. The fair and reasonable method can only be used for non-customizable purchases.

Local governments set their own order limits, and are not bound by the order limits on the cover page of this CMAS.

SPLITTING ORDERS
Splitting orders to avoid any monetary limitations is prohibited.

Do not circumvent normal procurement methods by splitting purchases into a series of delegated purchase orders, per Public Contract Code (PCC) § 10329.

Splitting a project into small projects to avoid either fiscal or procedural controls is prohibited, per State Administrative Manual (SAM) § 4819.34.

MINIMUM ORDER LIMITATION
There is no minimum dollar value limitation on orders placed under this CMAS.

ATTACHMENT A
9 ORDERING PROCEDURES

1. Purchase Orders
All Ordering Agency purchase order documents executed under this CMAS must contain the applicable CMAS number as show on page 1.

1. State Departments:

Standard 65 Purchase Documents – State departments not transacting in FISCal must use the Purchasing Authority Purchase Order (Standard 65) for purchase execution. An electronic version of the
Standard 65 is available at the DGS-PD website
(www.dgsapps.dgs.ca.gov/osp/StatewideFormsWeb/Forms.aspx), select Standard STD Forms.

FISCAL Purchase Documents – State departments transacting in FISCal will follow the FISCal procurement and contracting procedures.

2. Local Governmental Departments:

Local governmental agencies may use their own purchase document for purchase execution.

The agency is required to complete and distribute the purchase order. For services, the agency shall modify the information contained on the order to include the service period (start and end date), and the monthly cost (or other intermittent cost), and any other information pertinent to the services being provided. The cost for each line item should be included in the order, not just system totals.

The contractor must immediately reject purchase orders that are not accurate. Discrepancies are to be negotiated and incorporated into the purchase order prior to the products and services being delivered.

2. Service and Delivery after CMAS Expiration
The purchase order must be issued before the CMAS expires. However, delivery of the products or completion of the services may be after the CMAS expires (unless otherwise specifically stated in the purchase order).

ATTACHMENT A
10 3. Mult
iple CMAS Agreements on a Single Purchase Order
Agencies wishing to include multiple CMAS agreements on a single FISCal purchase order must adhere to the following guidelines:
• All CMAS must be for the same CMAS contractor.
• The purchase order must go to one contractor location. • Write the word “CMAS” in the space usually reserved for the contract number. On Standard 65’s, this is at the top of the form. The word “CMAS” signifies that the purchase order contains items from multiple CMAS agreements. The purchasing agency may only use one bill code.
• For each individual CMAS (as differentiated by alpha suffix), the agency must identify and group together the CMAS number with the line items and subtotal per CMAS number (do not include tax in the subtotal), and sequentially identify each individual CMAS as Sub #1, Sub #2, Sub #3, etc. This facilitates accurate billing of administrative fees by the Procurement Division.
• The total of all items on the purchase order must not exceed the purchase order limit identified in the CMAS.
• Do not combine items from both non-IT and Information Technology CMAS agreements. A non-IT CMAS begin with the number “4” and an Information Technology CMAS begins with the number “3.” The purchase order limits are different for these two types of CMAS agreements.

4. Amendments to Agency's Purchase Orders
Agency purchase orders cannot be amended if the CMAS has expired.

The SCM, Volumes 2 & 3, Chapter 6.A5.0 and SCM, Volume FISCal, Chapter 5.A4.0 provides the following direction regarding amendments to all types of LPA purchase orders:

Original orders, which include options for changes (e.g., quantity or time), that were evaluated and considered in the selection for award during the RFO process, may be amended consistent with the terms of the original order, provided that the original order allowed for amendments. If the original order did not evaluate options, then amendments are not allowed unless an NCB is approved for those amendments.

Amendments unique to non-IT services are covered in the SCM, Volume 2, Chapter 6.B2.9 and SCM, Volume FISCal, Chapter 5.A4.1 as follows:

If the original contract permitted amendments, but did not specify the changes (e.g., quantity or time), it may be amended, per Public Contract Code (PCC) § 10335 (d)(1). Only a contract may be amended once under this exemption. The time shall not exceed one year, or add not more than 30% of the original order value and may not exceed $250,000. If the original contract did not have language permitting amendments, the NCB process must be followed.

Also, see the SCM, Volumes 2 & 3, Chapter 8, Topic 6, for more information on amending purchase orders.

ATTACHMENT A
11 CMAS CONTRACTOR OWNERSHIP INFORMATION
The CMAS contractor is a large business enterprise.

SMALL BUSINESS MUST BE CONSIDERED
Prior to placing orders under the CMAS program, State agencies shall whenever practicable first consider offers from small businesses that have established CMAS [Government Code (GC) § 14846(b)]. NOTE: The Department of General Services auditors will request substantiation of compliance with this requirement when agency files are reviewed.

CMAS Small Business and Disabled Veteran Partners lists (www.dgs.ca.gov/PD/About/Page-
Content/PD-Branch-Intro-Accordion-List/Acquisitions/California-Multiple-Award-Schedules) can be found on the CMAS website by selecting “Find a CMAS Contractor”.

In response to our commitment to increase participation by small businesses, the Department of General Services waives the administrative fee (a fee currently charged to customer agencies to support the CMAS program) for orders to certified small business enterprises.

See the current fees in the DGS Price Book
at: www.dgs.ca.gov/OFS/Price-Book.

SMALL BUSINESS/DVBE - TRACKING
State agencies are able to claim subcontracting dollars towards their SB or DVBE goals whenever the CMAS contractor subcontracts a commercially useful function to a certified SB or DVBE. The CMAS contractor will provide the ordering agency with the name of the SB or DVBE used and the dollar amount the ordering agency can apply towards its SB or DVBE goal.

SMALL BUSINESS/DVBE - SUBCONTRACTING

1. The amount an ordering agency can claim towards achieving its SB or DVBE goals is the dollar amount of the subcontract award made by the CMAS contractor to each SB or DVBE.

2. The CMAS contractor will provide an ordering agency with the following information at the time the order is quoted:
a. The CMAS contractor will state that, as the prime contractor, it shall be responsible for the overall execution of the fulfillment of the order.
b. The CMAS contractor will indicate to the ordering agency how the order meets the SB or DVBE goal, as follows:
i. List the name of each company that is certified by the Office of Small Business and DVBE Services that it intends to subcontract a commercially useful function to; and ii. Include the SB or DVBE certification number of each company listed, and attach a copy of each certification; and

ATTACHMENT A
12 iii. Indicat
e the dollar amount of each subcontract with a SB or DVBE that may be claimed by the ordering agency towards the SB or DVBE goal; and iv. Indicate what commercially useful function the SB or DVBE subcontractor will be providing towards fulfillment of the order.

3. The ordering agency’s purchase order must be addressed to the prime contractor, and the purchase order must reference the information provided by the prime contractor as outlined above.

NEW EQUIPMENT REQUIRED
The State will procure new equipment. All equipment must be new (or warranted as newly manufactured) and the latest model in current production. Used, shopworn, demonstrator, prototype, or discontinued models are not acceptable.

Where Federal Energy Management Program (FEMP) standards are available, all State agencies shall purchase only those products that meet the recommended standards. All products displaying the Energy Star label meet the FEMP standards.

SPECIAL MANUFACTURED GOODS
Any CMAS for goods to be manufactured by the CMAS contractor specifically for the State and not suitable for sale to others may require progress payments.

PRODUCT INSTALLATION
The CMAS contractor is fully responsible for all installation services performed under the CMAS.

Product installations must be performed by manufacturer authorized personnel and meet manufacturer documented specifications.

The prime contractor, as well as any subcontractors, must hold any certifications and/or licenses required for the project.

TRADE-IN EQUIPMENT
Trade-ins at open market price may be considered. The product description and trade-in allowance must be identified on the purchase order.

Agencies are required to adhere to State Administrative Manual (SAM) § 3520 through 3520.6, Disposal of Personal Property and Surplus Personal Property, as applicable, when trade-ins are considered. A Property Survey Report, Standard 152, must be submitted for approval prior to disposition of any State-owned personal property, including general office furniture regardless of the acquisition value, or if the property was recorded or capitalized for accounting purposes.

ATTACHMENT A
13 STATE AGENCY BUY RECYCLED CAMPAIGN (SABRC)
State ordering agencies are required to report purchases made within the eleven product categories in the California Department of Resources Recycling and Recovery’s State Agency Buy Recycled Campaign (SABRC) per Public Contract Code sections 12200-12217.

Contractor will be required to complete and return a Recycled-Content Certification form (www.calrecycle.ca.gov/contracts/forms) upon request by the state ordering agency.

INTEGRATED SERVICES
Agencies are prohibited from using CMAS for large-scale information technology system integration projects except when specifically approved by the California Department of Technology.

ELECTRONIC WASTE RECYCLING
State agencies are required to recycle state owned surplus electronic equipment that has no useful life remaining (E-Waste), to the maximum extent possible. State agencies shall dispose of E-Waste using the services of the California Prison Industry Authority (CALPIA), unless the agency meets the pickup quantity and location exemption criteria detailed in State Administrative Manual (SAM) § 3520.10. Electronic equipment that is usable and still retains value is not considered E-Waste and must be reutilized through the DGS, Office of Fleet and Asset Management (OFAM) Surplus Personal Property Warehouse.

State agencies shall determine which equipment meets the definition of E-Waste or reusable Electronic Equipment, per the definitions provided in the State Administrative Manual Management Memo MM 17-06. OFAM will validate that equipment meets the appropriate definition when reviewing the submitted Property Survey Report (Standard 152).

Please see State Administrative Manual (SAM) § 3520.10 for more information on this policy.

Information for submitting a Standard 152 can be found on the DGS OFAM surplus property

website (www.dgs.ca.gov/RESD/Resources/Page-Content/Real-Estate-Services-Division- Resources-List-Folder/DGS-Surplus-Property-Homepage).

Information on the CALPIA E-Waste Program can be found at: www.calpia.ca.gov/products- services/e-waste-recycling-computer-refurbishing
The E-Waste Exemption Request Form EWR-F029 can be found at:
www.calpia.ca.gov/calpia/assets/File/ewaste/E-Waste%20Exemption_EWR-F029.pdf The electronic waste recycling fee must be shown as a line item on the agency purchase order before the CMAS contractor can include it on their invoice.

ATTACHMENT A
14 CONSULTING OR PERSONAL SERVICES
To ensure sufficient expertise for all consulting or personal services, prior to issuing an order, the agency is required to review the resumes of all personnel the CMAS contractor intends to use to fulfill the order. Each agency is responsible for verifying that contractor personnel meet any education or experience requirements listed in the base schedule.

Each order should contain, as a minimum, a description of the task, a statement of the contractor’s responsibilities, completion criteria, a list of deliverable items (if any), the estimated starting date, the scheduled completion date, and a fixed cost for each task.

The aggregate of the fixed costs for all tasks constitutes the fixed price ceiling for all tasks described.

1. Progress Payments
For an IT service CMAS, see the CMAS IT Terms and Conditions, Provision #75, CMAS Progress Payments & Risk Assessment.

2. Outsourcing Services
Careful analysis must be given by State agencies to using contracted personnel rather than using civil service positions within State government.

Government Code (GC) § 19130(c) requires that all persons who provide services to the State under conditions that constitute an employment relationship shall, unless exempted by Article VII (Section 4) of the California Constitution, be retained under an appropriate civil service appointment.

Issuing a CMAS purchase order for services to an independent contractor is permissible when any of the following conditions set forth in Government Code (GC) §19130(b) can be met:
• Exempt under Constitution
• New State function and legislative authority
• Service not available; highly specialized or
• Technical
• Incidental to the purchase or lease
• Conflict of interest; need unbiased findings
• Emergency appointment
• Private counsel, with Attorney General (AG) approval and Governor’s Office, if applicable • Contractor will provide deliverables that are not feasible for the State to provide • Training when civil service is not available
• Urgent, temporary, or occasional services when civil service delay would frustrate the purpose (see Option 2)

ATTACHMENT A
15 When j
ustified as outlined above, personal services must fall under one of the two following options:

Option 1. CMAS orders for personal services such as project management, independent verification and validation, systems analysis and design, and miscellaneous services are not limited to the number of hours or months per year that a consultant can work if the services contracted for are not available within civil service, cannot be performed satisfactorily by civil service employees, or are of such a highly specialized or technical nature that the necessary expert knowledge, experience, and ability are not available through the civil service system (Government Code (GC) § 19130.b (3)).

Option 2. CMAS personal services orders for programmers, systems analysts, and technical specialists which are of an urgent, temporary, or occasional nature, such that hiring additional civil service positions is not feasible, are limited to nine months (1548 hours) per consultant within a twelve consecutive month period (Government Code (GC) § 19130.b (10)/California State Constitution, Article VII, Section 5).

This provision is per agency and is inclusive of orders issued on your behalf by another agency.

Contractors must wait three months from CMAS order termination/expiration before submitting the candidate’s resume for work at the same agency/department.

For both options above, the contractor may conduct training courses for which appropriately qualified civil service instructors are not available, provided that permanent instructor positions in academies or similar settings shall be filled through civil service appointment (Government Code (GC) § 19130.b (9)).

For each order, the agency must prepare and retain in their file a written justification that includes specific and detailed factual information that demonstrates that the contract meets one or more of the conditions set forth in Government Code (GC) § 19130(b).

3. State Personnel Board Requirements
State Personnel Board (SPB) approval is required for a purchase order based on cost savings to the State as justification for not using civil service personnel.

4. Statement of Work
A Statement of Work (SOW)
must be prepared as applicable for each purchase order.

Information regarding the preparation of a SOW is available at the CMAS website (www.dgs.ca.gov/PD/About/Page-Content/PD-Branch-Intro-Accordion- List/Acquisitions/California-Multiple-Award-Schedules), select “Statement of Work Information”, Agencies are strongly encouraged to use this information when developing SOW requirements that will accompany the Request for Offer and the resulting purchase order.

ATTACHMENT A
16 5. Follow-on C
ontracts Are Prohibited
No person, firm, or subsidiary thereof who has been awarded a purchase order for consulting services, or a purchase order that includes a consulting component, may be awarded a purchase order for the provision of services, delivery of goods or supplies, or any other related action which is required, suggested, or otherwise deemed appropriate as an end product of the purchase order (Public Contract Code (PCC) § 10365.5).

Therefore, any consultant who develops a program study or provides formal recommendations is precluded from providing any work recommended in the program study or the formal recommendation.

PRODUCTIVE USE REQUIREMENTS
The customer in-use requirement applies to all procurements of information technology equipment and software, per the SCM, Volume 3, Chapter 2, Section 2.B6.2 and SCM, Volume FISCal, Chapter 2, Section 2.E3.2.

Each equipment or software component must be in current operation for a paying customer and the paying customer must be external to the contractor’s organization (not owned by the contractor and not owning the contractor).

To substantiate compliance with the Productive Use Requirements, the CMAS contractor must provide upon request the name and address of a customer installation and the name and telephone number of a contact person.

The elapsed time such equipment or software must have been in operation is based upon the importance of the equipment or software for system operation and its cost. The following designates product categories and the required period of time for equipment or software operation prior to approval of the replacement item on CMAS.

Category 1 - Critical Software: Critical software is software that is required to control the overall operation of a computer system or peripheral equipment. Included in this category are operating systems, data base management systems, language interpreters, assemblers and compilers, communications software, and other essential system software.

Cost Installation Final Bid Submission
More than $100,000 8 months 6 months
$10,000 up to $100,000 4 months 3 months
Less than $10,000 1 month 1 month
Category 2 - All Information Technology Equipment and Non-Critical Software: Information technology equipment is defined in State Administrative Manual (SAM) § 4819.2.

Cost Installation Final Bid Submission
More than $100,000 6 months 4 months
$10,000 up to $100,000 4 months 3 months
Less than $10,000 1 month 1 month

ATTACHMENT A
17 NOT SPECIFICALLY PRICED (NSP) ITEMS
The only time that open market/incidental, non-schedule items may be included in a CMAS order is when they fall under the parameters of the Not Specifically Priced (NSP) Items provision.

CMAS contractors must be authorized providers of the hardware, software and/or services they offer under the Not Specifically Priced (NSP) Items provision.

Agency and CMAS contractor use of the NSP provision is subject to the following requirements:

1. Purchase orders containing only NSP items are prohibited.

2. A purchase order containing NSP items may be issued only if it results in the lowest overall alternative to the State.

3. NSP items shall be clearly identified in the order. Any product or service already specifically priced and included in the base schedule may not be identified as an NSP item.

4. NSP Installation Services: The CMAS contractor is fully responsible for all installation services performed under the CMAS. Product installations must be performed by manufacturer authorized personnel and meet manufacturer documented specifications. The prime contractor, as well as any subcontractors, must hold any certifications and/or licenses required for the project. The total dollar value of all installation services included in the purchase order cannot exceed the dollar value of the products included in the purchase order, nor can they exceed the NSP Maximum Order Limitation.

5. Maximum Order Limitation: For orders $250,000, or less, the total dollar value of all NSP items included in a purchase order shall not exceed $5,000. For orders exceeding $250,000, and at the option of the contractor, the total dollar value of all NSP items in a purchase order shall not exceed 5% of the total cost of the order, or $25,000 whichever is lower.

6. An NSP item included in an order issued against a CMAS is subject to all of the terms and conditions set forth in the contract.

7. Trade-ins, upgrades, involving the swapping of boards, are permissible, where the contract makes specific provisions for this action. In those instances, where it is permitted, the purchase order must include the replacement item and a notation that the purchase involves the swapping of a board.

ATTACHMENT A
18 The following NSP items are specifically excluded from any order issued under this CMAS:

1. Items not intended for use in directly supporting the priced items included in the same order.

An NSP item must be subordinate to the specifically priced item that it is supporting. For example, a cable, which is not otherwise specifically priced in the base schedule, is subordinate to a specifically priced printer or facsimile machine, and is eligible to be an NSP item subject to that cable meeting the remaining NSP requirements. However, a printer or facsimile machine, which is not otherwise specifically priced in the base schedule, is not subordinate to a specifically priced cable, and is not eligible to be an NSP item.

2. Supply type items, except for the minimum amount necessary to provide initial support to the priced items included in the same order.

3. Items that do not meet the Productive Use Requirements for information technology products, per the SCM, Volume 3, Chapter 2, Section 2.B6.2 and SCM, Volume FISCal, Chapter 2, Section 2.E3.2.

4. Any other item or class of items specifically excluded from the scope of this CMAS.

5. Public Works components NOT incidental to the total purchase order amount.

6. Products or services the CMAS contractor is NOT factory authorized or otherwise certified or trained to provide.

7. Follow-on consultant services that were previously recommended or suggested by the same CMAS contractor.

The CMAS contractor is required to reject purchase orders containing NSP items that do not conform to the above requirements. The CMAS contractor will promptly notify the agency issuing the non-conforming order of its non-acceptance and the reasons for its non-acceptance.

STATE AND LOCAL GOVERNMENTS CAN USE CMAS
State and local government agency use of CMAS is optional. A local government is any city, county, city and county, district, or other local governmental body or corporation, including UC, CSU, K-12 schools and community colleges empowered to expend public funds. While the State makes this CMAS available, each local government agency should make its own determination whether the CMAS program is consistent with their procurement policies and regulations.

ATTACHMENT A
19 UPDATES AND/OR CHANGES
A CMAS supplement is not required for updates and/or changes once the update and/or change becomes effective for the base schedule, except as follows:
• A CMAS supplement is required when the CMAS is based on specific products and/or services from another contractor’s multiple award contract and the contractor wants to add a new manufacturer’s products and/or services.
• A CMAS supplement is required for new federal contract terms and conditions that constitute a material difference from existing contract terms and conditions. A material change has a potentially significant effect on the delivery, quantity or quality of items provided, the amount paid to the contractor or on the cost to the State.

SELF-DELETING BASE SCHEDULE TERMS AND CONDITIONS
Instructions, or terms and conditions that appear in the Special Items or other provisions of the base schedule and apply to the purchase, license, or rental (as applicable) of products or services by the US Government in the United States, and/or to any overseas location shall be self-deleting. (Example: "Examinations of Records" provision).

Federal regulations and standards, such as Federal Acquisition Regulation (F A R), Federal
Information Resources Management Regulation (F I R M R), Federal Information Processing Standards (FIPS), General Services Administration Regulation (GSAR), or Federal Installment Payment Agreement (FIPA) shall be self-deleting. Federal blanket orders and small order procedures are not applicable.

ORDER OF PRECEDENCE
The CMAS Terms and Conditions takes precedence if there is a conflict between the terms and conditions of the contractor's base schedule, packaging, invoices, catalogs, brochures, technical data sheets or other documents (see CMAS Terms and Conditions, CONFLICT OF TERMS).

APPLICABLE CODES, POLICIES AND GUIDELINES
All California codes, policies, and guidelines are applicable. The use of CMAS does not reduce or relieve state agencies of their responsibility to meet statewide requirements regarding contracting or the procurement of goods or services. Most procurement and contract codes, policies, and guidelines are incorporated into CMAS agreements. Nonetheless, there is no guarantee that every possible requirement that pertains to all the different and unique State processes has been included.

ATTACHMENT A
20 PAYMENTS AND INVOICES

1. Payment Terms
Payment terms for this CMAS are net 45 days.

Payment will be made in accordance with the provisions of the California Prompt Payment Act, Government Code (GC) § 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 (1) the date of acceptance of goods or performance of services; or (2) receipt of an undisputed invoice, whichever is later.

2. Payee Data Record (Standard 204)
State Agencies not transacting in FISCal, must obtain a copy of the Payee Data Record (Standard 204) in order to process payments. State Ordering Agencies forward a copy of the Standard 204 to their accounting offices. Without the Standard 204, payment may be unnecessarily delayed. State Agencies should contact the CMAS contractor for copies of the Payee Data Record.

3. DGS Administrative and Incentive Fees
Orders from State Agencies:

The Department of General Services (DGS) will bill each State agency directly an administrative fee for use of CMAS. The administrative fee should NOT be included in the order total, nor remitted before an invoice is received from DGS. This administrative fee is waived for CMAS purchase orders issued to California certified small businesses.

See the current administrative fees in the DGS Price Book (www.dgs.ca.gov/OFS/Price-Book).

Orders from Local Government Agencies:

CMAS contractors, who are not California certified small businesses, are required to remit to DGS an incentive fee equal to a percentage of the total of all local government agency orders (excluding sales tax and freight) placed against their CMAS. The incentive fee is in lieu of local government agencies being billed the referenced DGS administrative fee.

See the current incentive fees in the DGS Price Book.

This incentive fee is waived for CMAS purchase orders issued to California certified small businesses.

The check covering this fee shall be made payable to the Department of General Services, CMAS Unit, and mailed to the CMAS Unit along with the applicable Quarterly Report. See the provision in this CMAS entitled “Contractor Quarterly Report Process” for information on when and where to send these checks and reports.

ATTACHMENT A
21 4. Contr
actor Invoices
Unless otherwise stipulated, the CMAS contractor must send their invoices to the agency address set forth in the purchase order. Invoices shall be submitted in triplicate and shall include the following:
• CMAS number
• Agency purchase order number
• Agency Bill Code (State Only)
• Line item number
• Unit price
• Extended line item price
• Invoice total
State sales tax and/or use tax shall be itemized separately and added to each invoice as applicable.

The company name on the CMAS, purchase order and invoice must match or the State Controller’s Office will not approve payment.

5. Advance Payments
Advance payment is allowed for services only under limited, narrowly defined circumstances, e.g., between specific departments and certain types of non-profit organizations, or when paying another government agency (Government Code (GC) § 11256 – 11263 and 11019).

It is NOT acceptable to pay in advance, except software maintenance and license fees, which are considered a subscription and may be paid in advance if a provision addressing payment in advance is included in the purchase order.

Software warranty upgrades and extensions may also be paid for in advance, one time.

6. Credit Card
The CMAS contractor does not accept the State of California credit card (CAL-Card).

7. Lease/Purchase Analysis
State agencies must complete a Lease/Purchase Analysis (LPA) to determine best value when contemplating a lease/rental, and retain a copy for future audit purposes (State Administrative Manual (SAM) § 3710).

For short-term rental equipment, the lease/purchase analysis must be approved by the Department of General Services, Office of legal Services.

ATTACHMENT A
22 The leas
e/purchase analysis for all other purchases must be approved by the Department of General Services, GS SMart State Financial Marketplace. Buyers may contact the GS SMart Administrator, Kris Bianchini via e-mail at [email protected] for further information.

8. Leasing
The State reserves the right to select the form of payment for all procurements, be it either an outright purchase with payment rendered directly by the State, or a financing/lease-purchase or operating lease via the State Financial Marketplace (GS SMart and/or Lease SMart). If payment is via the financial marketplace, the Supplier will invoice the State and the State will approve the invoice and the selected Lender/Lessor for all product listed on the State’s procurement document will pay the supplier on behalf of the State.

Buyers may contact the GS SMart Administrator, Kris Bianchini via e-mail at [email protected]
for further information.

9. Maintenance Tax
The California Department of Tax and Fee Administration has ruled that in accordance with Section 1546 of the Sales and Use Tax Regulations of the Business Taxes Law Guide, whenever optional maintenance contracts include consumable supplies, such supplies are subject to sales tax.

Generally, the State has two options:

1. For agreements that provide for only maintenance services (i.e., the furnishing of labor and parts necessary to maintain equipment), the charges for the provision of maintenance services are not taxable.

2. For agreements that provide for both maintenance services and consumable supply items (i.e., toner, developer, and staples, for example), the provision of the consumable supplies is considered a taxable sale of tangible personal property. Therefore, State agencies awarding optional maintenance contracts are responsible for paying the applicable sales tax on the consumable supplies used during the performance period of the maintenance contract.

The Contractor will be required to itemize the consumables being taxed for State accounting purposes.

ATTACHMENT A
23 CONTRACTOR QUARTERLY REPORT PROCESS
CMAS contractors are required to submit a detailed CMAS Business Activity Report on a quarterly basis to the CMAS Unit.

This report shall be mailed to:

Department of General Services
Procurement Division – CMAS Unit
Attention: Quarterly Report Processing
P O Box 989052, MS #2-202
West Sacramento, CA 95798-9 0 5 2
Reports that include checks for incentive fees must be mailed and shall not be e-mailed. All other reports may be e-mailed to the attention of Quarterly Report Processing as follows:

CMAS Unit E-Mail: [email protected]
For the full instructions on completing and submitting CMAS Quarterly Business Activity Reports, and a soft copy of a blank quarterly report form, go to the CMAS website (www.dgs.ca.gov/PD/About/Page-Content/PD-Branch-Intro-Accordion-List/Acquisitions/California- Multiple-Award-Schedules) and then select “File a CMAS Quarterly Report”.

Important things to remember regarding CMAS Quarterly Business Activity Reports:
• A report is required for each CMAS, each quarter, even when no new purchase orders are received in the quarter.
• A separate report is required for each CMAS.
• Each purchase order must be reported only once in the quarter identified by the purchase order date, regardless of when the services were performed, the products were delivered, the invoice was sent, or the payment was received. • Purchase orders from State and local government agencies must be separated on the report, as shown in the instructions.
• CMAS contractors must report the sales activity for all resellers listed on their CMAS. • Any report that does not follow the required format or excludes required information will be deemed incomplete and returned to the CMAS contractor for corrections. • Taxes and freight must not be included in the report. • CMAS contractors must attach to their quarterly report a check covering the required incentive fee for all CMAS sales to local government agencies. • New CMAS agreements and supplements will be approved only if the CMAS contractor has submitted all required quarterly reports and incentive fees.

ATTACHMENT A
24 CMA
S Quarterly Business Activity Reports are due in the CMAS Unit within two weeks after the end of each quarter as shown below:

Quarter 1 January 1 to March 31 Due April 15
Quarter 2 April 1 to June 30 Due July 15
Quarter 3 July 1 to September 30 Due October 15
Quarter 4 October 1 to December 31 Due January 15

CONTRACTOR QUARTERLY INCENTIVE FEES
CMAS contractors, who are not California certified small businesses, are required to remit to DGS an incentive fee equal to a percentage of the total of all local government agency orders (excluding sales tax and freight) placed against their CMAS. The incentive fee is in lieu of local government agencies being billed the referenced DGS administrative fee.

See the current incentive fees in the DGS Price Book.

CMAS contractors cannot charge local government agencies an additional charge on a separate line item to cover the incentive fee. The CMAS contractor must include the incentive fee in the price of the products or services offered, and the line item prices must not exceed the applicable base schedule prices.

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 schools and community colleges empowered to expend public funds.

This incentive fee is waived for CMAS purchase orders issued to California certified small businesses.

OBTAINING COPY OF ORIGINAL CMAS AND SUPPLEMENTS
A copy of a CMAS and supplements, if any, can be obtained at Cal eProcure (caleprocure.ca.gov).

A complete CMAS consists of the following:
• CMAS cover pages (which includes the signature page, ordering instructions and special provisions, and any attachments or exhibits as prepared by the CMAS Unit) • CMAS Terms and Conditions.
• Base schedule terms and conditions
• Product/service listing and prices
• Supplements, if applicable.

ATTACHMENT A
25 It i
s important for the agency to confirm that the required products, services, and prices are included in the CMAS and are at or below base schedule rates. To streamline substantiation that the needed items are in the base schedule, the agencies should ask the CMAS contractor to identify the specific pages from the base schedule that include the required products, services, and prices. Agencies should save these pages for their file documentation.

CONTRACTORS ACTING AS FISCAL AGENTS ARE PROHIBITED
When a subcontractor ultimately provides all of the products or performs all of the services that a CMAS contractor has agreed to provide, and the prime contractor only handles the invoicing of expenditures, then the prime contractor's role becomes that of a fiscal agent because it is merely administrative in nature, and does not provide a Commercially Useful Function (CUF). It is unacceptable to use fiscal agents in this manner because the agency is paying unnecessary administrative costs.

AGENCY RESPONSIBILITY
Each agency is responsible for its own contracting program and purchasing decisions, including use of the CMAS program and associated outcomes.

This responsibility includes, but is not necessarily limited to, ensuring the necessity of the services, securing appropriate funding, complying with laws and policies, preparing the purchase order in a manner that safeguards the State’s interests, obtaining required approvals, and documenting compliance with Government Code (GC) § 19130.b (3) for outsourcing services.

It is the responsibility of each agency to consult as applicable with their legal staff and contracting offices for advice depending upon the scope or complexity of the purchase order.

If you do not have legal services available to you within your agency, the DGS Office of Legal Services is available to provide services on a contractual basis.

CONFLICT OF INTEREST
Agencies must evaluate the proposed purchase order to determine if there are any potential conflict of interest issues. See the CMAS Terms and Conditions, Conflict of Interest, for more information.

FEDERAL DEBARMENT
When federal funds are being expended, the agency is required to obtain (retain in file) a signed “Federal Debarment” certification from the CMAS 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).

ATTACHMENT A
26 CONTRACTOR TRAVEL
The provision for travel expense reimbursement is included.

It is important the agency and CMAS contractor discuss necessary travel requirements prior to issuing the purchase order because the detail and cost (only as allowed for in the CMAS) must be included in the agency purchase order to be payable.

State agencies may only reimburse travel and per diem expenses according to State travel time and per diem rules for State employees. All travel expenses must be incorporated into the purchase order. For the current travel and per diem reimbursement rates, go to the California
Department of Human Resources’ website (www.calhr.ca.gov).

Notwithstanding the CMAS provisions, the State will not be responsible for the cost of travel to bring contractor personnel from out-of-state to the job site (unless specifically arranged by agency in advance). If requested by the agency, the State will be responsible for reimbursement of travel expenses from one California agency site to another.

State agencies should refer to State Administrative Manual (SAM) § 0774 “Travel and Related Reimbursement of Persons Not State Employees”, when transportation and per diem costs are to be reimbursed by the State. Reimbursement must be supported by receipts.

Local government agencies will pay travel and per diem expenses according to their statutory requirements.

LIQUIDATED DAMAGES FOR LATE DELIVERY
The value of the liquidated damages cannot be a penalty, must be mutually agreed upon by agency and contractor and included in the purchase order to be applicable.

ACCEPTANCE TESTING CRITERIA
If the agency wants to include acceptance testing for all newly installed technology systems, and individual equipment, and machines which are added or field modified (modification of a machine from one model to another) after a successful performance period, the test criteria must be included in the purchase order to be applicable.

AMERICANS WITH DISABILITY ACT (ADA)
Section 504 of the Rehabilitation Act of 1973 as amended; Title VI and VII of the Civil Rights Act of 1964 as amended; Americans with Disabilities Act, 42 USC 12101; California Code of Regulations, Title 2, Title 22; California Government Code, Sections 11135, et seq.; and other federal and State laws, and Executive Orders prohibit discrimination. All programs, activities, employment opportunities, and services must be made available to all persons, including persons with disabilities. See Attachment A for Procurement Division’s ADA Compliance Policy of Nondiscrimination on the Basis of Disability.

Individual government agencies are responsible for self-compliance with ADA regulations.

ATTACHMENT A
27 Contr
actor sponsored events must provide reasonable accommodations for persons with disabilities.

DGS PROCUREMENT DIVISION CONTACT AND PHONE NUMBER
Department of General Services
Procurement Division, CMAS Unit
707 Third Street, 2nd Floor, MS 2-202
West Sacramento, CA 95605-2 8 1 1
Phone # (916) 375-4365

ATTACHMENT A
28 ATTACHMENT A

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: 916-376-5127 (CALNET 480-5127)
The California Relay Service Telephone Numbers are:

Voice: 1-800-735-2922, or 7-1-1
Speech to Speech Service: 1-800-854-7784

ATTACHMENT A
29 GSPD-401IT-CMAS

CALIFORNIA MULTIPLE AWARD SCHEDULES (CMAS)

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; (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 criterion expressed in (i), (ii), or
(iii) above and would require only minor
modifications to meet the requirements of
this Contract.
g) “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), (ii), 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.
j) “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 cables; e.g.,
direct access controller and drives, a

ATTACHMENT A
30 cluster of terminals with their controller,
etc.
l) "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.
m) “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.
o) "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.
r) "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.
w) "Machine" means an individual unit of a
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.,

ATTACHMENT A
31 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.
y) "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.
ff) "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
management systems, and utility routines,
(tape-to-disk routines, disk-to-print
routines, etc.).
ii) "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.

ATTACHMENT A
32 jj) "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.
ll) "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.
oo) “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 FORM
ATION:

If this Contract results from a Letter of Offer,
then Contractor’s offer is deemed a firm offer
and this Contract document is the State's
acceptance of that offer.

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:

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
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:

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

ATTACHMENT A
33 indemnify the State against any loss, cost,
damage or liability by reason of the
Contractor’s violation of this provision.
b) The State will notify 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); (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 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
11135, 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, 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 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); (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 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.

ATTACHMENT A
34 9. CMAS - ASSIGNMENT:
a) 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, State will not
unreasonably prohibit Contractor from
freely assigning its right to payment,
provided that Contractor remains
responsible for its obligations hereunder.
b) Should the State desire financing of the
assets provided hereunder through
GS$Mart, the State’s financial
marketplace, the Contractor agrees to
assign to a State-designated lender its
right to receive payment from the State for
the assets in exchange for payment by the
lender of the cash purchase price for the
assets. Upon notice to do so from the
State-designated lender at any time prior
to payment by the State for the assets, the
Contractor will execute and deliver to the
State-designated lender an assignment
agreement and any additional documents
necessary for the State selected financing
plan. The State-designated lender will pay
the Contractor according to the terms of
the Contractor’s invoice upon acceptance
of the assets by the State.

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. CMAS - 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) Federal GSA (or other multiple award)
terms and conditions;
e) Statement of work, including any
specifications incorporated by reference
herein; and
f) All other attachments incorporated in the
Contract by reference.

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
ii. the number of the container in which
the packing sheet has been enclosed.
b) All shipments by 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

ATTACHMENT A
35 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, 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 Contractor’s expense or utilize
any other rights available to the State at law
or in equity.

15. SUBSTITUTIONS:

Substitution of Deliverables may not be
tendered without advance written consent of
the Buyer. 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

ATTACHMENT A
36 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 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.
c) 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.

17. SAMPLES:
a) 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 offered 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 Contractor’s
expense.

18. CMAS - WARRANTY:

The following warranty language is in addition
to the warranty language provided in the
federal GSA Multiple Award Schedule or
other base Contract used to establish this
CMAS Contract. When there is a conflict
between the language, the following warranty
language overrides.
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

ATTACHMENT A
37 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
its 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 Contract
or 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 other
wise specified in the
Statement of Work:
i. The Contrac
tor does not warrant that
any Software provided hereunder is
error-free or that it will run without
immaterial interruption.
ii. The Contrac
tor 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
Contractor, or (C) misuse by the State.
iii. Where th
e Contractor resells
Commercial Hardware or Commercial
Software it purchased from a third
party, Contractor, to the extent it is
legally able to do so, will pass through
an 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) A ll warrant
ies, including special warranties
specified elsewhere herein, shall inure to
the State, its successors, assigns,
customer agencies, and governmental
users of the Deliverables or services.
e) 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 Contractor’s sole
obligatio
n 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 S
tate 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

ATTACHMENT A
38 e)(ii) above will not exceed the limits on
Contractor’s liability set forth in the
Section entitled “Limitation of Liability.”
f) EXCEPT FOR THE E
XPRESS

WARRANTIES SPECIFIED IN THIS

SECTION, 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 i
nsurance, 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 Contract.

Any required endorsements r
equested by the
State must be separately provided; merely
referring to such c
overage on the certificate(s)
is i
nsufficient 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.

21. TERMINA

TION 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 effect 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
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 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
CONTRACTOR’S NEAREST FACILITY

AND FOR REIMBURSEMENT TO THE

CONTRACTOR FOR EXPENSES

INCURRED FOR THEIR ASSISTANCE IN
SUCH PACKING AND CRATING.

ATTACHMENT A
39 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.
b) 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.
d) T he 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.

ATTACHMENT A
40 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.
c) 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 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,
ii. partially completed Deliverables, and,
iii. 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

ATTACHMENT A
41 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.

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”).
d) 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 Contractor or to make
a claim against the Contractor therefore.

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 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

ATTACHMENT A
42 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 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.
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
Contractor’s liability for such damages is
specifically set forth in the Statement of
Work or (ii) to the extent that Contractor’s
liability for such damages arises out of
sub-section b)(i), b)(ii), 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.
b) 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:

ATTACHMENT A
43 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 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.

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
(ii) 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

ATTACHMENT A
44 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.

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
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 Contractor’s administrative
communications and records relating to
this Contract (collectively, the “Work
Product”), shall be Contractor’s exclusive
property. The provisions of this sub-
section a) may be revised in a Statement
of Work.
b) Software and other materials developed or
otherwise obtained by or for 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
Contractor’s or its affiliates’ ownership of
Pre-Existing Materials.

ATTACHMENT A
45 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.
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 authorized 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
machined-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.
d) Acceptance of Commercial Software
(including third party Software) and
Custom Software will be governed by the
terms and conditions of this Contract.

ATTACHMENT A
46 39. PROTECTION OF PROPRIETARY

SOFTWARE AND OTHER PROPRIETARY
DATA:

The State agrees that all material
appropriately marked or identified in writing as
proprietary, and furnished hereunder are
provided for 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 insure that such
proprietary data are not disclosed to others,
without prior written consent of the
Contractor, subject to the California Public
Records Act. The State will insure, prior to
disposing of any media, that any licensed
materials contained thereon have been
erased or otherwise destroyed. 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 proprietary
data to satisfy its obligations under 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 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 the
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 not 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.

ATTACHMENT A
47 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 an inoperative CPI, 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.

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.

ATTACHMENT A
48 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
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 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
iii. 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 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, 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 contractor’s demand,
it shall be deemed a decision adverse to
the Contractor’s contention. If the

ATTACHMENT A
49 Contractor is not satisfied with the
decision of the 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
Contractor’s demand, it shall be deemed a
final decision adverse to Contractor’s
contentions. The State’s final decision
shall be conclusive and binding regarding
the dispute unless 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.
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 the 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. 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 identified as such and shall
indicate it is issued under this clause.

ATTACHMENT A
50 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:

Contractor agrees that the State, or its
designated representative shall have the right
to review and copy any records and
supporting documentation 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,
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
audit(s) 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 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

ATTACHMENT A
51 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:

ATTACHMENT A
52 items which 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
insure 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.
b) 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 an offer to the State, the
supplier offers and agrees that if the offer
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 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

ATTACHMENT A
53 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 offer 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).
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;
iii. 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.

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.

ATTACHMENT A
54 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) 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
Contractor’s compliance with the
requirements under paragraph (a).

56. RECYCLED CONTENT REQUIREMENTS:

The Contractor shall certify in writing under
penalty of perjury, the minimum, if not exact,
percentage of postconsumer 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.

58. AMERICAN 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.

ATTACHMENT A
55 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 Contractor must within
60 days of receiving final payment under
this Contract (or within such other time
period as may be specified elsewhere in
this Contract) report to the awarding
department the actual percentage of small
business participation that was achieved.
(Govt. Code § 14841.)
b) If for this Contract Contractor made a
commitment to achieve disabled veteran
business enterprise (DVBE) participation,
then Contractor must within 60 days of
receiving final payment under this
Contract (or within such other time period
as may be specified elsewhere in this
Contract) certify in a report to the
awarding department: (1) the total amount
the prime Contractor received under the
Contract; (2) the name and address of the
DVBE(s) that participated in the
performance of the Contract; (3) the
amount each DVBE received from the
prime Contractor; (4) that all payments
under the Contract have been made to the
DVBE; and (5) the actual percentage of
DVBE participation that was achieved. 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.)

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).).

ADDITIONAL CMAS TERMS AND

CONDITIONS

65. CMAS - CONTRACTOR’S LICENSE
REQUIREMENTS:

Contracts that include installation or the
wording “Furnish and Install” require at the
time of Contract award that Contractors
possess a valid California State Contractor’s
License. If sub-Contractors are used, they
must also possess a valid California State
Contractor’s License. All businesses which
construct or alter any building, highway, road,
parking facility, railroad, excavation, or other
structure in California must be licensed by the
California State License Board (CSLB) if the
total cost (labor and materials) of the project
is $500.00 or more. Failure to be licensed or
to keep the license current and in good

ATTACHMENT A
56 standing shall be grounds for Contract
revocation.

66. CMAS - PUBLIC WORKS REQUIREMENTS
(LABOR/INSTALLATION):
a) Prior to the commencement of
performance, the Contractor must obtain
and provide to the State, a payment bond,
on Standard Form 807, when the Contract
involves a public works expenditure
(labor/installation costs) in excess of
$5,000. Such bond shall be in a sum not
less than one hundred percent (100%) of
the Contract price.
b) In accordance with the provisions of
Section 1773 of the California Labor
Code, the Contractor shall, conform and
stipulates to the general prevailing rate of
wages, including employer benefits as
defined in Section 1773.1 of the California
Labor Code, applicable to the classes of
labor to be used for public works such as
at the delivery site for the assembly and
installation of the equipment or materials
under the purchase order. Pursuant to
Section 1770 of the California Labor
Code, the Department of Industrial
Relations has ascertained the general
prevailing rate of wages in the county in
which the work is to be done, to be as
listed in the booklet entitled General
Prevailing Wage Rates. The booklet is
compiled monthly and copies of the same
are available from the
Department of
Industrial Relations, Prevailing Wage Unit
at www.dir.ca.gov (select Statistics &
Research) or (415) 703-4774. The booklet
is required to be posted at the job site.
c) The Contractor hereby certifies by signing
this Contract that:
i. Contractor has met or will comply with
the standards of affirmative compliance
with the Non-Discrimination Clause
Requirements included herein;
ii. Contractor is aware of the provisions of
Section 3700 of the Labor Code that
require every employer to be insured
against liability for workmen's
compensation or to undertake self-
insurance in accordance with the
provisions of that Code, and Contractor
will comply with such provisions before
commencing the performance of the
work of the purchase order.
d) Laws to be Observed
i. Labor
Pursuant to Section 1775 of the
California Labor Code the Contractor
shall, as a penalty to the State or
Political subdivision on whose behalf
the purchase order is made or
awarded, forfeit not more than fifty
($50.00) for each calendar day, or
portions thereof, for each worker paid
by him or subcontractor under him, less
than the prevailing wage so stipulated;
and in addition, the Contractor further
agrees to pay to each workman the
difference between the actual amount
paid for each calendar day, or portions
thereof, and the stipulated prevailing
wage rate for the same. This provision
shall not apply to properly indentured
apprentices.

Pursuant to Sections 1810-1815 of the
California Labor Code, inclusive, it is
further agreed that the maximum hours
a worker is to be employed is limited to
eight hours a day and forty hours a
week and the Contractor shall forfeit, as
a penalty to the State, twenty-five ($25)
for each worker employed in the
execution of the purchase order for
each calendar day during which a
workman is required or permitted to
labor more than eight hours in any
calendar day or more than forty hours
in any calendar week, in violation of

ATTACHMENT A
57 California Labor Code Sections 1810-
1815, inclusive.
ii. Worker's Compensation Insurance
The Contractor will be required to
secure the payment of compensation to
its employees in accordance with the
provisions of Labor Code Section 3700.
iii. Travel and Subsistence Payments
Travel and subsistence payments shall
be paid to each worker needed to
execute the work, as such travel and
subsistence payments are defined in
the applicable collective bargaining
agreements filed in accordance with
Labor Code Section 1773.8.
iv. Apprentices
Special attention is directed to Sections
1777.5, 1777.6, and 1777.7 of the
California Labor Code and Title 8,
California Administrative Code Section
200 et seq. Each Contractor and/or
subcontractor must, prior to
commencement of the public works
Contract/purchase order, contact the
Division of Apprenticeship Standards,
525 Golden Gate Avenue, San
Francisco, CA, or one of its branch
offices to insure compliance and
complete understanding of the law
regarding apprentices and specifically
the required ratio thereunder.

Responsibility for compliance with this
section lies with the prime Contractor.
v. Payroll
The Contractor shall keep an accurate
payroll record showing the name, social
security account, and work
classification specific and straight time
and overtime hours worked by each
employee. A certified copy of the
employee’s payroll record shall be
available for inspection as specified in
Section 1776 of the California Labor
Code.

67. CMAS - TERMINATION OF CMAS
CONTRACT:
a) The State may terminate this CMAS
Contract at any time upon 30 days prior
written notice.
b) If the Contractor's GSA Multiple Award
Schedule is terminated within the term of
the CMAS Contract, the CMAS Contract
shall also be considered terminated on the
same date.
c) Prior to the expiration of this CMAS
Contract, this Contract may be terminated
for the convenience of both parties by
mutual consent.
d) This provision shall not relieve the
Contractor of the obligation to perform
under any purchase order or other similar
ordering document executed prior to the
termination becoming effective.

68. CMAS - CONTRACT AMOUNT:

There is no guarantee of minimum purchase
of Contractor's products or services by the
State.

69. CMAS - DEBARMENT CERTIFICATION
(FEDERALLY FUNDED CONTRACTS):

When Federal funds are being expended, the
prospective recipient of Federal assistance
funds is required to certify to the Buyer, that
neither it nor its principals are presently
debarred, suspended, proposed for
debarment, declared ineligible, or voluntarily
excluded from participation in this transaction
by any Federal department or agency.

70. CMAS - PURCHASE ORDERS FUNDED IN

WHOLE OR PART BY THE FEDERAL
GOVERNMENT:

All Contracts (including individual orders),
except for State construction projects, which
are funded in whole or in part by the federal
government may be canceled with 30 day
notice, and are subject to the following:

ATTACHMENT A
58 a) It is mutually understood between the
parties that this Contract (order) may have
been written before ascertaining the
availability of congressional appropriation
of funds, for the mutual benefit of both
parties, in order to avoid program and
fiscal delays which would occur if the
Contract (order) were executed after that
determination was made.
b) This Contract (order) is valid and
enforceable only if sufficient funds are
made available to the State by the United
States Government for the fiscal year
during which the order was generated for
the purposes of this program. In addition,
this Contract (order) is subject to any
additional restrictions, limitations, or
conditions enacted by the Congress or
any statute enacted by the Congress that
may affect the provisions, terms or funding
of this Contract (order) in any manner.
c) It is mutually agreed that if the Congress
does not appropriate sufficient funds for
the program, this Contract (order) shall be
amended to reflect any reduction in funds.

The department has the option to void the
Contract (order) under the 30-day
cancellation clause or to amend the
Contract to reflect any reduction of funds.

71. CMAS - CONFLICT OF INTEREST:
a) Current State Employees (Public Contract
Code Section 10410):
i. No officer or employee shall engage in
any employment, activity or enterprise
from which the officer or employee
receives compensation or has a
financial interest and which is
sponsored or funded by any State
agency, unless the employment, activity
or enterprise is required as a condition
of regular State employment.
ii. No officer or employee shall Contract
on his or her own behalf as an
independent Contractor with any State
agency to provide Goods or services.
b) Former State Employees (Public Contract
Code Section 10411):
i. For the two-year period from the date
he or she left State employment, no
former State officer or employee may
enter into a Contract in which he or she
engaged in any of the negotiations,
transactions, planning, arrangements or
any part of the decision-making process
relevant to the Contract while employed
in any capacity by any State agency.
ii. For the twelve-month period from the
date he or she left State employment,
no former State officer or employee
may enter into a Contract with any
State agency if he or she was
employed by that State agency in a
policy-making position in the same
general subject area as the proposed
Contract within the twelve-month period
prior to his or her leaving State service.

72. CMAS - SUBCONTRACTING
REQUIREMENTS:

Any subcontractor that the CMAS supplier
chooses to use in fulfilling the requirements of
this Contract (order), and which is expected to
receive more than ten (10) percent of value of
the Contract/purchase order, must also meet
all Contractual, administrative, and technical
requirements of the Contract (order), as
applicable.

73. CMAS - RENTAL AGREEMENTS:

The State does not agree to:
• Indemnify a Contractor;
• Assume responsibility for matters beyond
its control;
• Agree to make payments in advance;
• Accept any other provision creating a
contingent liability against the State; or

ATTACHMENT A
59 • Agree to obtain insurance to protect the
Contractor.

The State’s responsibility for repairs and
liability for damage or loss is restricted to that
made necessary by or resulting from the
negligent act or omission of the State or its
officers, employees, or agents.

If the Contractor maintains the equipment, the
Contractor must keep the equipment in good
working order and make all necessary repairs
and adjustments without qualification. The
State may terminate for default or cease
paying rent should the Contractor fail to
maintain the equipment properly.

Personal property taxes are not generally
reimbursed when leasing equipment (SAM
8736).

74. CMAS - LEASE (LEASE $MART ™):

If an agency desires to lease through Lease
$Mart ™, the Contractor agrees to sell to
lessor the assets at the same price as they
agree to sell to the State.

75. CMAS - PROGRESS PAYMENTS & RISK
ASSESSMENT:

In accordance with PCC 12112 agencies are
required to withhold not less than 10 percent
of the Contract price until final delivery and
acceptance of the Goods or services, for any
Contract that provides for progress payments
in a Contract for IT Goods or services to be
manufactured or performed by a Contractor
especially for the State and not suitable for
sale to others in the ordinary course of the
Contractor’s business.

Interim Risk Assessment guidelines and
financial protection measures are detailed in
PCC 12112 for agencies to use to determine
their applicability to agency projects.

76. CMAS - QUARTERLY REPORTS:

Contractors are required to submit quarterly
business activity reports, as specified in this
Contract, even when there is no activity. A
separate report is required for each Contract,
as differentiated by alpha suffix.

77. CMAS - CONTRACTOR EVALUATION:

In accordance with PCC 10367 and 10369,
performance of the Contractor under orders
issued against this Contract will be evaluated.

The ordering agency shall complete a written
evaluation, and if the Contractor did not
satisfactorily perform the work specified, a
copy of the evaluation will be sent to the
DGS, Office of Legal Services.

ATTACHMENT A
60 CALIFORNIA MULTIPLE AWARD SCHEDULES (CMAS)

STATE MODEL

CLOUD COMPUTING

SERVICES SPECIAL PROVISIONS
(Software as a Service)
THESE CLOUD COMPUTING – SOFTWARE AS A SERVICE GENERAL PROVISIONS ARE ONLY TO BE USED FOR SOFTWARE AS A SERVICE (SaaS), AS DEFINED BELOW, AND ANY ANCILLARY SERV ICES. THE CLOUD COMPUTING SERVICES SPECIAL PROVISIONS (SOFTWARE AS A SERVICE) 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.
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). j) "Hardware" refers to computer equipment and is contrasted with Software.

ATTACHMENT A
61 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. l) "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 ii) the maintenance performed on a scheduled basis by the Contractor. m) “Reseller” means the agent(s) 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 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.

ATTACHMENT A
62 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. iii. “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.

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.

ATTACHMENT A
63 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 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 (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

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64 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 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 (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.

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65 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 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 ii. All customer support for Services will be performed with professional care and skill.

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66 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;
iii. 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 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
ii. 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,

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67 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 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

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68 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 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 iii. 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
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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69 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; 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; 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

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70 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 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
iii. 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.

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71 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.

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 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 FTI 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

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72 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 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

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73 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 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.

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74 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 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 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 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

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75 iii. 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 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 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.

ATTACHMENT A
76 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
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

ATTACHMENT A
77 and interview staff in any subcontract related to performance of this Contract. The State shall provide reasonable advance written notice of such audit(s) to the Contractor.

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
ii. 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 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, feasibility studies, or project approval documentation; 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.

ATTACHMENT A
78 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. 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, PCC section 10296.

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79 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 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; iii. 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.

ATTACHMENT A
80 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 section12156(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 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

ATTACHMENT A
81 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 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.

ATTACHMENT A
82 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 Contractor must within sixty (60) days of receiving final payment under this Contract (or within such other time period as may be specified elsewhere in this Contract) report to the awarding department 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 disabled veteran business enterprise (DVBE) participation, then Contractor must within sixty (60) days of receiving final payment under this Contract (or within such other time period as may be specified elsewhere in this Contract) certify in a report to the awarding department: (1) the total amount the prime Contractor received under the Contract; (2) the name and address of the DVBE(s) that participated in the performance of the Contract; (3) the amount each DVBE received from the prime Contractor; (4) that all payments under the Contract have been made to the DVBE; and (5) the actual percentage of DVBE participation that was achieved. 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.)

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).).

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83 CALIFORNIA MULTIPLE AWARD SCHEDULES (CMAS)

STATE MODEL

CLOUD COMPUTING SERVICES SPECIAL PROVISIONS
(Infrastructure as a Service and Platform as a Service)

THESE SPECIAL PROVISIONS ARE ONLY TO BE USED FOR INFRASTRUCTURE AS A SERVICE (IaaS) AND PLATFORM AS A SERVICE (PaaS), AS DEFINED BELOW. THESE SPECIAL PROVISIONS ARE TO BE ATTACHED TO THE GENERAL PROVISIONS –

INFORMATION TECHNOLOGY AND ACCOMPANIED BY, AT MINIMUM, A STATEMENT OF WORK (SOW) AND SERVICE LEVEL AGREEMENT (SLA). 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:
a) “Authorized Persons” means the Service Provider’s employees, Contractors, subcontractors or other agents who need to access the State’s Data to enable the Service Provider to perform the services required.
b) “Data Breach” means the unauthorized access that results in the use, disclosure, destruction, modification, loss or theft of the State’s unencrypted Personal Data or Non-Public Data. c) “Individually Identifiable Health Information” means Information that is a subset of health information, including demographic information collected from an individual, and (1) is created or received by a health care provider, health plan, employer or health care clearinghouse; and (2) relates to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present or future payment for the provision of health care to an individual; and (a) that identifies the individual; or (b) with respect to which there is a reasonable basis to believe the information can be used to identify the individual.
d) “Infrastructure-as-a-Service” (IaaS) means 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 application; and possibly limited control of select networking components (e.g., host firewalls). e) “Non-Public Data” means
data submitted to the Service Provider’s IaaS or PaaS Service, other than Personal Data, that is not subject to distribution to the public as public information. It is deemed to be
sensit
ive and confidential by the State because it contains information that is exempt by statute, regulation or policy from access by the general public as public information.

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84 f) “Personal Data” means data submitted to the Service Provider’s IaaS or PaaS Service that includes information relating to a person that identifies the person by name and has any of the following personally identifiable information (PII): government -issued identification numbers (e.g., Social Security, driver’s license, passport); financial account information, including account number, credit or debit card numbers; or protected health information (PHI) relating to a person. g) “Platform-as-a-Service” (PaaS) means the capability provided to the consumer to deploy onto the cloud infrastructure consumer- created or -acquired applications created using programming languages and tools supported by the provider. This capability does not necessarily preclude the use of compatible programming languages, libraries, services and tools from other sources. 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. h) “Protected Health Information” (PHI) means Individually Identifiable Health Information transmitted by electronic media, maintained in electronic media, or transmitted or maintained in any other form or medium. PHI excludes education records covered by the Family Educational Rights and Privacy Act (FERPA) as amended, 20 U.S.C. 1232g, records described at 20 U.S.C. 1232g(a)(4)(B)(iv) and employment records held by a covered entity in its role as employer.
i) “Security Incident” means the potentially unauthorized access to Personal Data or Non- Public Data the Service Provider believes could reasonably result in the use, disclosure or theft of the State’s unencrypted Personal Data or Non-Public Data within the possession or control of the Service Provider. A Security Incident may or may not turn into a Data Breach. j) “Service Level Agreement” (SLA) means a written agreement between both the State and the Service Provider that is subject to the terms and conditions in this document that unless otherwise agreed to includes (1) the technical service level performance promises, (i.e. metrics for performance and intervals for measure), (2) description of service quality, (3) identification of roles and responsibilities, (4) security responsibilities and notice requirements, how disputes are discovered and addressed, and (6) any remedies for performance failures. k) “Service Provider” means the Contractor, subcontractors, agents, resellers, third parties and affiliates who are providing the services agreed to under the Contract. l) “State Data” means all data created or in any way originating with the State, and all data that is the output of computer processing of or other electronic manipulation of any data that was created by or in any way originated with the State, whether such data or output is stored on the State’s hardware, the Service Provider’s hardware or exists in any system owned, maintained or otherwise controlled by the State or by the Service Provider. m) “State Identified Contact” means the person or persons designated in writing by the State to receive Security Incident or Data Breach notification.
n) “Statement of Work” (SOW) means a written statement in a Contract that describes the State’s service needs and expectations.

ATTACHMENT A
85 2. DATA OWNERSHIP:

The State will own all right, title and interest in State Data that is related to the services provided by this Contract. The Service Provider shall not access State user accounts or State Data, except (1) in the course of data center operations, (2) in response to service or technical issues, (3) as required by the express terms of this Contract, (4) at the State’s written request or (5) as required by law.

3. DATA PROTECTION:

Protection of personal privacy and data shall be an integral part of the business activities of the Service Provider to ensure there is no inappropriate or unauthorized use of State information at any time. To this end, the Service Provider shall safeguard the confidentiality, integrity and availability of State information within its control and comply with the following conditions:
a) In addition to the Compliance with Statues and Regulations provisions set forth in the General Provisions – Information Technology, the Service Provider shall comply as required with:
i. The California Information Practices Act (Civil Code Sections 1798 et seq). ii. NIST Special Publication 800-53 Revision 4 or its successor. iii. Privacy provisions of the Federal Privacy Act of 1974. b) All State Data obtained by the Service Provider within its control in the performance of this Contract shall become and remain the property of the State. c) Unless otherwise set forth in the SOW and/or SLA, Personal Data and Non-Public Data shall be encrypted at rest, in use, and in transit with controlled access. The SOW and/or SLA will specify which party is responsible for encryption and access control of the State Data for the service model under Contract. If the SOW and/or SLA and the Contract are silent, then the State is responsible for encryption and access control. d) Unless otherwise set forth in the SOW and/or SLA, it is the State’s responsibility to identify data it deems as Non-Public Data to the Service Provider. The level of protection and encryption for all Non-Public Data shall be identified and made a part of this Contract. e) At no time shall any Personal Data and Non-Public Data or processes — which either belong to or are intended for the use of State or its officers, agents or employees — be copied, disclosed or retained by the Service Provider or any party related to the Service Provider for subsequent use in any transaction without the express written consent of the State except as permitted in Section 2 above.
f) (For PaaS Only) Encryption of Data at Rest: The Service Provider shall ensure hard drive encryption consistent with validated cryptography standards as referenced in FIPS 140-2, Security Requirements for Cryptographic Modules for all Personal Data and Non-Public Data, unless the Service Provider presents a justifiable position approved by the State that Personal Data and Non-Public Data must be stored on a Service Provider portable device in order to accomplish work as defined in the SOW and/or SLA.

4. DATA LOCATION:

The Service Provider shall provide its services to the State and its end users solely from data centers in the continental United States. Storage of State Data at rest shall be located solely in data centers in the continental United States. The Service Provider shall not allow its personnel or

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86 contractors to store State Data on portable devices, including personal computers, except for devices that are used and kept only at its U.S. data centers. The Service Provider shall permit its personnel and contractors to access State Data remotely only as required to provide technical user support or other customer support. The Service Provider may provide technical user support or other customer support on a 24/7 basis using a Follow the Sun model, unless otherwise prohibited in this Contract.

5. SECURITY INCIDENT OR DATA BREACH NOTIFICATION:

The Service Provider shall inform the State of any Security Incident or Data Breach related to State Data within the possession or control of the Service Provider and related to the service provided under this Contract.
a) Security Incident Reporting Requirements: Unless otherwise set forth in the SOW and/or SLA, the Service Provider shall promptly report a Security Incident related to its service under the Contract to the appropriate State Identified Contact as defined in the SOW and/or SLA. b) Breach Reporting Requirements: If the Service Provider has actual knowledge of a confirmed Data Breach that affects the security of any State Data that is subject to applicable Data Breach notification law, the Service Provider shall (1) promptly notify the appropriate State Identified Contact within 24 hours or sooner, unless otherwise required by applicable law, and (2) take commercially reasonable measures to address the Data Breach in a timely manner. c) (For PaaS Only) Incident Response: The Service Provider may need to communicate with outside parties regarding a Security Incident, which may include contacting law enforcement, fielding media inquiries and seeking external expertise as mutually agreed upon, defined by law or contained in the contract. Discussing Security Incidents with the State should be handled on an urgent as- needed basis, as part of Service Provider communication and mitigation processes as mutually agreed, defined by law or contained in the Contract.

6. DATA BREACH RESPONSIBILITIES:

This section only applies when a Data Breach occurs with respect to Personal Data and/or Non- Public Data within the possession or control of a Service Provider and related to service provided under this Contract.
a) The Service Provider, unless otherwise set forth in in the SOW and/or SLA, shall promptly notify the appropriate State Identified Contact within 24 hours or sooner by telephone, unless shorter time is required by applicable law, if it confirms that there is or reasonably believes that there has been a Data Breach. The Service Provider shall (1) cooperate with the State as reasonably requested by the State to investigate and resolve the Data Breach; (2) promptly implement necessary remedial measures, if necessary; and (3) document responsive actions taken related to the Data Breach, including any post-incident review of events and actions taken to make changes in business practices in providing the services, if necessary. b) Service Provider will provide daily updates, or more frequently if required by the State, regarding findings and actions performed by Service Provider to the State Identified Contact until the Data Breach has been effectively resolved to the State’s satisfaction. c) Service Provider shall quarantine the Data Breach, ensure secure access to Data, and repair IaaS and/or PaaS as needed in accordance with the SOW and/or SLA. Failure to do so may

ATTACHMENT A
87 result in the State exercising its options for assessing damages or other remedies under this Contract.
d) Unless otherwise set forth in the SOW and/or SLA, if a Data Breach is a direct result of the Service Provider’s breach of its Contract obligation to encrypt Personal Data and/or Non-Public Data or otherwise prevent its release, the Service Provider shall bear the costs associated with (1) the investigation and resolution of the Data Breach; (2) notifications to individuals, regulators or others required by State law; (3) a credit monitoring service required by State (or Federal) law; (4) a website or a toll-free number and call center for affected individuals required by State law; and (5) complete all corrective actions as reasonably determined by the Service Provider based on root cause; all [(1) through (5)] subject to this Contract’s Limitation of Liability provision as set forth in the General Provisions – Information Technology.

7. NOTIFICATION OF LEGAL REQUESTS:

Unless otherwise required by law, the Service Provider shall contact the State upon receipt of any electronic discovery, litigation holds, discovery searches and expert testimonies related to the State’s Data under this Contract, or which in any way might reasonably require access to State’s Data. The Service Provider shall not respond to subpoenas, service of process and other legal requests related to the State without first notifying the State, unless prohibited by law from providing such notice. Unless otherwise required by law, Service Provider 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. Service Provider shall not respond to legal requests directed at the State unless authorized in writing to do so by the State.

8. DATA PRESERVATION AND RETRIEVAL:
a) For ninety (90) days prior to the expiration date of this Contract, or upon notice of termination of this Contract, Service Provider shall assist the State in extracting and/or transitioning all State Data in the format determined by the State (“Transition Period”). b) The Transition Period may be modified in the SOW and/or SLA or as agreed upon in writing by the parties in a Contract amendment.
c) During the Transition Period, IaaS and/or PaaS and State Data access shall continue to be made available to the State without alteration.
d) Service Provider agrees to compensate the State for damages or losses the State incurs as a result of Service Provider’s failure to comply with this section in accordance with the “Limitation of Liability” provision set forth in the General Provisions - Information Technology. e) The State at its option, may purchase additional transition services as agreed upon in the SOW and/or SLA.
f) During any period of suspension, the Service Provider shall not take any action to intentionally erase any State Data.
g) The Service Provider will impose no additional fees for access and retrieval of State Data by the State during the Transition Period.
h) After termination of the Contract and the prescribed retention period, the Service Provider shall securely dispose of all State Data in all forms. State Data shall be permanently deleted and

ATTACHMENT A
88 shall not be recoverable, according to NIST-approved methods. Certificates of destruction shall be provided to the State.

9. BACKGROUND CHECKS:

As permitted or required by law, the Service Provider shall conduct criminal background checks and not utilize any staff, including subcontractors, to fulfill the obligations of the Contract who have been convicted of any crime of dishonesty, including but not limited to criminal fraud, or otherwise convicted of any felony or any misdemeanor offense for which incarceration for up to 1 year is an authorized penalty. The Service Provider shall promote and maintain an awareness of the importance of securing the State’s information among the Service Provider’s employees and agents.

10. ACCESS TO SECURITY LOGS AND REPORTS:
a) (For IaaS Only) Upon request, the Service Provider shall provide reports to the State directly related to the infrastructure the Service Provider controls upon which the State account resides. Unless otherwise agreed to in the SLA, the Service Provider shall provide the State a history of all Application Program Interface (API) calls for the State account that includes the identity of the API caller, the time of the API call, the source IP address of the API caller, the request parameters and the response elements returned by the Service Provider. The report will be sufficient to enable the State to perform security analysis, resource change tracking and compliance auditing.
b) (For PaaS Only) Upon request, the Service Provider shall provide reports to the State in a format as specified in the SOW and/or SLA and agreed to by both the Service Provider and the State. Reports will include latency statistics, user access, user access IP address, user access history and security logs for all State files related to this Contract. c) The Service Provider and the State recognize that security responsibilities are shared. The Service Provider is responsible for providing a secure infrastructure. The State is responsible for its secure guest operating system, firewalls and other logs captured within the guest operating system. Specific shared responsibilities are identified within the SOW and/or SLA.

11. CONTRACT AUDIT:

The Service Provider shall allow the State to audit conformance to the Contract terms. The State may perform this audit or Contract with a third party at its discretion and at the State’s expense.

12. DATA CENTER AUDIT:

The Service Provider shall undergo an annual Statement on Standards for Attestation Engagements (SSAE) No. 16 Service Organization Control (SOC) 2 Type II audit of its data centers, or its successor at its own expense. The Service Provider shall provide a redacted version of the audit report and Contractor’s plan to correct any negative findings upon request.

The Service Provider may remove its proprietary information from the redacted version.

13. CHANGE CONTROL AND ADVANCE NOTICE:

The Service Provider shall give advance notice (as agreed to by the parties and included in the SOW and/or SLA) to the State of any upgrades (e.g., major upgrades, minor upgrades, system

ATTACHMENT A
89 changes) that is expected to materially and negatively impact service availability and performance, as well as any planned downtime for such upgrades. A major upgrade is a replacement of hardware, software or firmware ware with a newer or better version in order to bring the system up to date or to improve its characteristics. It usually includes a new version number. Service Provider may change the features and functionality of the services, without degrading them, to make improvements, address security requirements and comply with changes in law.

14. SECURITY PROCESSES:

The Service Provider shall disclose its non-proprietary security processes and technical limitations to the State such that adequate protection and flexibility can be attained between the State and the Service Provider. The State and the Service Provider shall understand each other’s roles and responsibilities, which shall be set forth in the SOW and/or SLA.

15. IMPORT AND EXPORT OF DATA:

The State shall have the ability to import or export data in whole or in part at its discretion without interference from the Service Provider. This includes the ability for the State to import or export data to or from other Service Providers.

16. RESPONSIBILITIES AND UPTIME GUARANTEE:

The Service Provider shall be responsible for the acquisition and operation of all hardware, software and network support related to the services being provided. The technical and professional activities required for establishing, managing and maintaining the environment are the responsibility of the Service Provider. The system shall be available 24/7/365 (with agreed- upon maintenance downtime), and shall provide service to customers as defined in the SOW and/or SLA.

17. RIGHT TO REMOVE INDIVIDUALS:

The State shall have the right at any time to require the Service Provider remove from interaction with State any Service Provider representative who the State believes is detrimental to its working relationship with the Service Provider. The State shall provide the Service Provider with notice of its determination, and the reasons it requests the removal. The Service Provider shall not assign the person to any aspect of the Contract or future work orders without the State’s consent.

18. BUSINESS CONTINUITY AND DISASTER RECOVERY:

The Service Provider shall provide a business continuity and disaster recovery plan and shall ensure that it achieves the State’s Recovery Time Objective (RTO), as agreed to by the parties and set forth in the SOW and/or SLA.

19. WEB SERVICES:
(For PaaS Only) The Service Provider shall use Web services exclusively to interface with State Data in near real time when possible, or as mutually agreed in the SOW and/or SLA.

ATTACHMENT A
90 Procurem ent Di vision
707 Third Street, 2nd Floor, MS #2-202
West Sacramento, CA 95605-2811

State of California

MULTIPLE AWARD SCHEDULE

Dell Marketing L.P.

CONTRACT NUMBER: 3-16-70-0012B
SUPPLEMENT NO.: 1
CMAS CONTRACT TERM: 07/15/2016 through 02/28/2021
CONTRACT CATEGORY: Information Technology Goods &
Services

APPLICABLE
TERMS & CONDITIONS: September 8, 2014
MAXIMUM ORDER LIMIT: $500,000
FOR USE BY: State & Local Government Agencies
BASE GSA SCHEDULE NO.: GS-35F-059DA
BASE SCHEDULE HOLDER: Dell Marketing L.P.

This contract provides for the purchase and warranty of hardware and software, installation, maintenance, software maintenance as a product, and repair.

The purpose of this contract supplement is to incorporate the following changes:

1) Changes have been made to CMAS Excluded Products and/or Services. See page 2 for a revised Excluded Products and/or Services available on this contract. 2) Remove the State Model Cloud Computing Services Special Provisions (Infrastructure as a Service and Platform as a Service).

All other terms and conditions and provisions of the contract remain unchanged.

___________Original Signature On File__________________ Effective Date: 07/27/2016 JANNA WELK, Program Analyst, California Multiple Award Schedules Unit

ATTACHMENT A
91 CALIFORNIA MULTIPLE AWARD SCHEDULE (CMAS)
DELL MARKETING L.P.

CMAS NO. 3-16-70-0012B, SUPPLEMENT NO. 1

Ordering Instructions and Special Provisions 2

EXCLUDED PRODUCTS AND/OR SERVICES

Services such as Software as a Service (SaaS),
Platform as a Service (PaaS), Infrastructure as a
Service (IaaS), software maintenance as a service ,
training, leasing, and Information Technology (IT)
professional services are not available under this
contract.

ATTACHMENT A
92 NOTE: The City of Stockton is now using the online insurance program PINS Advantage. Once you have been awarded a contract you will receive an email from the City’s online insurance program requesting you to forward the email to your insurance provider(s). Please see attached flyer regarding PINS Advantage.

Insurance Requirements for IT Professional Services
IT Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, or employees. IT Consultant shall procure and maintain for the duration of the contract insurance against claims arising out of their professional services and including, but not limited to loss, damage, theft or other misuse of data, infringement of intellectual property, invasion of privacy and breach of data.

MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:

1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.

2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if Consultant has no owned autos, Code 8 (hired) and 9 (non- owned), with limit no less than $1,000,000 per accident for bodily injury and property damage.

3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
(Not required if consultant provides written verification it has no employees)

4. Technology Professional Liability (Errors and Omissions) Insurance appropriate to the Consultant’s profession, with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Consultant in this agreement and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic

ATTACHMENT A
93 information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations. (If Claims-made, see below.)

It shall be a requirement under this agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to the Additional Insured. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any Insurance policy or proceeds available to the named insured; whichever is greater. No representation is made that the minimum insurance requirements of this agreement are sufficient to cover the obligations of the Consultant under this agreement.

Limits of Insurance

The limits of insurance required in this agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.

Other Insurance Provisions

The insurance policies are to contain, or be endorsed to contain, the following provisions:

Additional Insured Status

The City of Stockton, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Consultant including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Consultant’s insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used). Additional insured Name of Organization shall read “City of Stockton, its officers, officials, employees, and volunteers.” Policy shall cover City of Stockton, its officers, officials, employees, and volunteers for all locations work is done under this contract.

Primary Coverage

ATTACHMENT A
94 The Additional Insured coverage under the Consultant’s policy shall be “primary and non-contributory” and will not seek contribution from the City’s insurance or self- insurance and shall be at least as broad as CG 20 01 04 13. The City of Stockton does not accept endorsements limiting the Consultant’s insurance coverage to the sole negligence of the Named Insured.

Claims Made Policies – (Note – applicable only to professional and/or pollution liability)

If any coverage required is written on a claims-made coverage form:

1. The retroactive date must be shown, and this date must be before the execution date of the contract or the beginning of contract work.

2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of contract work.

3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the contract effective, or start of work date, the Consultant must purchase extended reporting period coverage for a minimum of five (5) years after completion of contract work.

4. A copy of the claims reporting requirements must be submitted to the City of Stockton for review.

5. If the services involve lead-based paint or asbestos identification/remediation, the Consultant’s Pollution Liability policy shall not contain lead-based paint or asbestos exclusions. If the services involve mold identification/remediation, the Consultant’s Pollution Liability policy shall not contain a mold exclusion, and the definition of Pollution shall include microbial matter, including mold.

Notice of Cancellation

Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City of Stockton.

Waiver of Subrogation

Consultant hereby grants to City of Stockton a waiver of any right to subrogation which any insurer of said Consultant may acquire against the City of Stockton by virtue of the payment of any loss under such insurance. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Stockton has received a

ATTACHMENT A
95 waiver of subrogation endorsement from the insurer. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City of Stockton for all work performed by the Consultant, its employees, agents and subcontractors.

Self-Insured Retentions

All Self-insured retentions must be disclosed to Risk Management for approval and shall not reduce the limits of liability. The City of Stockton may require the Consultant to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.

The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City of Stockton.

Acceptability of Insurers

Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City of Stockton.

Claims Made Policies (note – applicable only to professional liability)

If any of the required policies provide coverage on a claims-made basis:

1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.

2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.

3. If coverage is canceled or non-renewed, and not replaced with another claims- made policy form with a Retroactive Date prior to the contract effective date, the Consultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of contract work.

Verification of Coverage

Consultant shall furnish the City of Stockton with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City of Stockton Risk Services before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant’s obligation to provide them. The City of Stockton reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.

ATTACHMENT A
96 Consultant shall, prior to the commencement of work under this Agreement, provide the City of Stockton with a copy of its declarations page(s) and endorsement page(s) for each of the required policies.

Subcontractors

Consultants shall require and verify that all subcontractors, or other parties hired for this work, purchase and maintain coverage for indemnity and insurance requirements as least as broad as specified in this agreement to the extent they apply to the scope of the subcontractor’s work with the same certificate of insurance requirements and naming as additional insureds all parties to this contract. Consultant shall include the following language in their agreement with Subcontractors: Subcontractors hired by Consultant agree to be bound to Consultant and City in the same manner and to the same extent as Consultant is bound to City under the contract documents and provide a valid certificate of insurance and the required endorsements included in the agreement as proof of compliance prior to commencement of any work and to include this same requirement for any subcontractors they hire for this work. A copy of the owner contract document indemnity and insurance provisions will be furnished to the subcontractor upon request. Consultant shall provide proof of such compliance and verification to the City upon request.

Special Risks or Circumstances

City of Stockton reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.

Certificate Holder Address
Proper address for mailing certificates, endorsements and notices shall be:

City of Stockton
Attn: City Risk Services
400 E Main Street, 3rd Floor – HR
Stockton, CA 95202

ATTACHMENT A
97

City Council and Concurrent AuthoritiesApril 5, 2022

City Council and Concurrent Authorities
April 5, 2022