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CLOUD COMPUTING – SOFTWARE AS A SERVICE (SaaS) GENERAL PROVISIONS
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 SERVICES. 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.
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h)
“Eligible Public Entity” means each of the non-State public entities
authorized to purchase the Deliverables and Services offered hereunder.
“Eligible Public Entity” includes the county, city, city and county, district,
public authority, public agency, municipal corporation, or any other
political subdivision or public corporation in the State. “Eligible Public
Entity” also includes a federally-recognized tribal entity acting in its tribal
governmental capacity.
i)
“Goods” means all types of tangible personal property, including but not
limited to materials, supplies, and equipment (including computer and
telecommunications equipment).
j)
"Hardware" refers to computer equipment and is contrasted with
Software.
k)
“Information Technology” includes, but is not limited to, all electronic
technology systems and services, automated information handling,
system design and analysis, conversion of data, computer programming,
information storage and retrieval, telecommunications which include
voice, video, and data communications, requisite system controls,
simulation, electronic commerce, and all related interaction between
people and machines.
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
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(“Software Products”) that the State downloads to the State’s systems to
facilitate use of the Service.
q)
“Software as a Service (SaaS)” is the capability provided to the
Customer to use applications made available by the Service Provider
running on a cloud infrastructure. The applications are accessible from
various client devices through a thin client interface such as a web
browser (e.g., web-based email). The Customer does not manage or
control the underlying cloud infrastructure including network, servers,
operating systems, storage, or even individual application capabilities,
with the possible exception of limited user-specific application
configuration settings.
r)
"State" means the government of the State of California, its
employees and authorized representatives, including without
limitation any department, agency, or other unit of the government of
the State of California.
s)
“State Data” means all data owned by the State, and submitted to,
processed by, or stored by the Service Provider under this Contract and
includes, but is not limited to, all data that originated with the State or
Users, all data provided by the State or Users, and data generated,
manipulated, produced, reported by or otherwise emanating from or by
applications run by the State or Users on the Services. For clarity, State
Data is synonymous with “Customer Data”, “Customer Content”, or similar
terms, as used in various provisions of the service agreements and
incorporated into the Contract and includes the following:
i.
“Non-Public Data” means data submitted to the Service Provider, other
than Personal Data, that is not subject to distribution to the public as
public information. It is deemed to be sensitive and confidential by the
State because it contains information that may be exempt by statute,
regulation, or policy from access by the general public as public
information.
ii.
“Personal Data” means Personal Information as defined by the California
Information Practices Act (Civil Code sections 1798 et seq.) submitted to
the Service Provider.
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”.
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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.
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
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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).
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e)
To the extent that this Contract falls within the scope of Government Code
section 7405, the Contractor will be responsible to respond to and resolve any
complaint brought to its attention, regarding accessibility of its products or
Services. The State shall designate an authorized representative who will be
responsible for submission to Contractor of complaints received by the State
regarding the accessibility of Contractor’s products and Services. Contractor
shall be responsible to review and respond to all complaints regarding
accessibility brought to the attention of the State. The State and Contractor shall
work together to determine a reasonable response and resolution of all
complaints. The State acknowledges that Contractor can satisfy its duty to
respond to and resolve complaints under this provision by taking action it deems
appropriate under the circumstances, which may in some instances include no
further action beyond responding to the complaint.
8.
CONTRACTOR’S POWER AND AUTHORITY:
The Contractor warrants that it has full power and authority to grant the rights herein
granted and will reimburse the State for any loss, cost, liability, and expense
(including reasonable attorney fees) arising out of any breach of this warranty.
Further, the Contractor avers that it will not enter into any arrangement with any third
party which might abridge any rights of the State under this Contract.
a)
The State will notify the Contractor of any such claim in writing and tender the
defense thereof within a reasonable time; and
b)
The Contractor will have sole control of the defense of any action on such claim
and all negotiations for its settlement or compromise; provided that (i) when
substantial principles of government or public law are involved, when litigation
might create precedent affecting future State operations or liability, or when
involvement of the State is otherwise mandated by law, the State may participate
in such action at its 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
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prohibit the Contractor from freely assigning its right to payment, provided that the
Contractor remains responsible for its obligations hereunder.
10.
WAIVER OF RIGHTS:
Any action or inaction by the State or the failure of the State on any occasion, to
enforce any right or provision of the Contract, shall not be construed to be a waiver
by the State of its rights hereunder and shall not prevent the State from enforcing
such provision or right on any future occasion. Except as specifically set forth in
Section 13 (Warranty) below, the rights and remedies of the State herein are
cumulative and are in addition to any other rights or remedies that the State may
have at law or in equity.
11.
ORDER OF PRECEDENCE:
In the event of any inconsistency between the articles, attachments,
specifications or provisions which constitute this Contract, the following order of
precedence shall apply:
a)
These Cloud Computing - Software as a Service General Provisions (In the
instances provided herein where the paragraph begins: “Unless otherwise
specified in the Statement of Work” provisions specified in the Statement of Work
replacing these paragraphs shall take precedence over the paragraph referenced
in these General Provisions);
b)
Contract form, e.g., Purchase Order STD 65, Standard Agreement STD 213,
FI$Cal generated Purchase Order, etc., and any amendments thereto;
c)
The Cloud Computing Special Provisions – Software as a Service (hereafter
referred to as, the “SaaS Special Provisions”), which are incorporated by
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
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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.
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;
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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,
b.
use of Services in combination with software or services other than as
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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,
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regardless of any delay in determining or adjusting any amounts due under this
clause.
c)
After termination, the Contractor shall submit a final termination settlement
proposal to the State in the form and with the information prescribed by the State
except that in no instance shall the Contractor seek nor will the State pay for
Services not utilized or costs not specified on an order for Services regardless of
Contractors’ liability or costs for materials, equipment, Software, facilities, or sub-
contracts. The Contractor shall submit the proposal promptly, but no later than
thirty (30) days after the effective date of termination, unless a different time is
provided in the Statement of Work or in the Notice of Termination.
d)
The Contractor and the State may agree upon the whole or any part of the
amount to be paid or refunded as requested under subsection (c) above;
e)
Unless otherwise set forth in the Statement of Work, if the Contractor and the
State fail to agree on the amount to be paid because of the termination for
convenience.
i.
The State will pay the Contractor the Contract price for Services
accepted or utilized by the State; provided that in no event will total
payments exceed the amount payable to the Contractor if the Contract
had been 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
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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.
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),
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“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 EXTENT THAT THE
CONTRACTOR’S LIABILITY FOR SUCH DAMAGES ARISES OUT OF
SUBSECTION b) (i), b)(ii), OR b)(iv) ABOVE.
21.
INDEMNIFICATION:
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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:
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a)
the date of acceptance of Deliverables or performance of Services; or
b)
receipt of an undisputed invoice, whichever is later.
24.
TAXES:
Unless otherwise required by law:
a)
the State of California is exempt from Federal excise taxes; and
b)
the State will only pay for any applicable State or local sales or use taxes on the
services rendered or Goods supplied to the State pursuant to this Contract.
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
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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 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
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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
subsection and the rights thereunder may be modified as required for federally
funded SaaS pursuant to federal law or regulations, including, but not limited to,
7 CFR 277.18 and 45 CFR 95.617.
d)
The ideas, concepts, know-how, or techniques relating to data processing,
developed during the course of this Contract by the Contractor or jointly by the
Contractor and the State, may be used by either party without obligation of notice
or accounting.
e)
This Contract shall not preclude the Contractor from developing materials outside
this Contract that are competitive, irrespective of their similarity to materials
which might be delivered to the State pursuant to this Contract.
30.
SOFTWARE LICENSE:
A Service may require the use of Software Products to facilitate use of the Service.
Unless otherwise specified in the Statement of Work, the Contractor hereby grants to
the State and the State accepts from the Contractor, subject to the terms and
conditions of this Contract, a royalty-free, non-exclusive license to use the Software
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Products in this Contract. The State may use the Software Products only in
connection with use of the Service and according to any licensing terms if specified
in a Statement of Work or otherwise in the Contract. Acceptance of Software
(including third party Software) will be governed by the terms and conditions of this
Contract.
31.
PROTECTION OF PROPRIETARY SOFTWARE AND OTHER PROPRIETARY
DATA:
a)
The State agrees that all material appropriately marked or identified in writing as
proprietary and furnished hereunder by the Contractor are provided for the
State’s exclusive use for the purposes of this Contract only. All such proprietary
data shall remain the property of the Contractor. The State agrees to take all
reasonable steps to ensure that such proprietary data are not disclosed to
others, without prior written consent of the Contractor, subject to the California
Public Records Act, or other lawful process (e.g., in response to a subpoena);
b)
The State will ensure, prior to disposing of any media, that any licensed materials
contained thereon have been erased or otherwise destroyed; and
c)
The State agrees that it will take appropriate action by instruction, agreement or
otherwise with its employees or other persons permitted access to proprietary
data to satisfy its obligations in this Contract with respect to use, copying,
modification, protection and security of proprietary materials and data, subject to
the California Public Records Act and other applicable law.
32.
FUTURE RELEASES:
Unless otherwise specifically provided in the Statement of Work, if improved
versions (e.g., patches, bug fixes, updates or releases) or upgrades of any SaaS
versions or Software Product are developed by the Contractor, and are made
available to other customers, they will be made available to the State at no additional
cost only if such are made available to other customers at no additional cost.
33.
ENCRYPTION AND AUTHORIZATION KEYS:
Upon initiation of Service, Contractor will provide all encryption and authorization
keys required by the State to operate or access the Software Products or Services.
34.
PATENT, COPYRIGHT AND TRADE SECRET INDEMNITY:
a)
Contractor will indemnify, defend, and save harmless the State, its officers,
agents, and employees, from any and all third party claims, costs (including
without limitation reasonable attorneys’ fees), and losses for infringement or
violation of any U.S. Intellectual Property Right by any product or service
provided hereunder. With respect to claims arising from Software manufactured
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by a third party and sold by Contractor as a reseller, Contractor will pass through
to the State such indemnity rights as it receives from such third party (“Third
Party Obligation”) and will cooperate in enforcing them; provided that if the third
party manufacturer fails to honor the Third Party Obligation, Contractor will
provide the State with indemnity protection equal to that called for by the Third
Party Obligation, but in no event greater than that called for in the first sentence
of this Section).
Unless a Third Party Obligation provides otherwise, the defense and payment
obligations set forth in this Section will be conditional upon the following:
i.
The State will notify the Contractor of any such claim in writing and
tender the defense thereof within a reasonable time; and
ii.
The Contractor will have sole control of the defense of any action on such
claim and all negotiations for its settlement or compromise; provided that
(a) when substantial principles of government or public law are involved,
when litigation might create precedent affecting future State operations or
liability, or when involvement of the State is otherwise mandated by law,
the State may participate in such action at its own expense with respect
to attorneys’ fees and costs (but not liability); (b) where a settlement
would impose liability on the State, affect principles of California
government or public law, or impact the authority of the State, the
Department of General Services or the Department of Technology, as
applicable, will have the right to approve or disapprove any settlement or
compromise, which approval will not unreasonably be withheld or
delayed; and (c) the State will reasonably cooperate in the defense and
in any related settlement negotiations.
b)
Should the Software Products or Services, or the operation thereof, become, or
in the Contractor's opinion are likely to become, the subject of a claim of
infringement or violation of a U.S. Intellectual Property Right, the State shall,
subject to prior approval, permit the Contractor, at its option and expense, either
to procure for the State the right to continue using the Services, or to replace or
modify the same so that they become non-infringing. If none of these options can
reasonably be taken, or if the use of such Services by the State shall be
prevented by injunction, the State shall then have the option of terminating this
Contract, or applicable portions thereof, without penalty or termination charge
and the Contractor shall refund any sums the State has paid the Contractor less
any reasonable amount for use or damage.
c)
The Contractor shall have no liability to the State under any provision of this
clause with respect to any claim of patent, copyright or trade secret infringement
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which is based upon:
i.
The combination or utilization of Deliverables furnished hereunder with
Goods or Software not made or furnished by the Contractor; or
ii.
The combination or utilization of Software or Services not made or
furnished by the Contractor, and introduced into the States computing
environment; or
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
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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.
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
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Stop Work Order or any extension thereof expires, the Contractor shall resume
work. The State shall make an equitable adjustment in the delivery schedule, the
Contract price, or both, and the Contract shall be modified, in writing,
accordingly, if:
i.
The Stop Work Order results in an increase in the time required for, or in
the Contractor’s cost properly allocable to the performance of any part of
this Contract; and
ii.
The Contractor asserts its right to an equitable adjustment within sixty
(60) days after the end of the period of work stoppage; provided, that if
the State decides the facts justify the action, the State may receive and
act upon a proposal submitted at any time before final payment under
this Contract.
c)
If a Stop Work Order is not canceled and the work covered by the Stop Work
Order is terminated in accordance with the provision entitled Termination for the
Convenience of the State, the State shall allow reasonable costs resulting from
the Stop Work Order in arriving at the termination settlement.
d)
The State shall not be liable to the Contractor for loss of profits because of a
Stop Work Order issued under this clause.
37.
EXAMINATION AND AUDIT:
The Contractor agrees that the State or its designated representative shall have
the right to review and copy any records and supporting documentation directly
pertaining to performance of this Contract. The Contractor agrees to maintain
such records for possible audit for a minimum of three (3) years after final
payment, unless a longer period of records retention is stipulated. The Contractor
agrees to allow the auditor(s) access to such records during normal business
hours and in such a manner so as to not interfere unreasonably with normal
business activities and to allow interviews of any employees or others who might
reasonably have information related to such records. Further, the Contractor
agrees to include a similar right of the State to audit records and interview staff in
any subcontract related to performance of this Contract. The State shall provide
reasonable advance written notice of such 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;
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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
(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, 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
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the event of any inconsistency, such Conflict Laws override the provisions of this
Section, even if enacted after execution of this Contract.
39.
PRIORITY HIRING CONSIDERATIONS:
If this Contract includes services in excess of $200,000, the Contractor shall give
priority consideration in filling vacancies in positions funded by the Contract to
qualified recipients of aid under Welfare and Institutions Code section 11200 in
accordance with PCC section 10353.
40.
COVENANT AGAINST GRATUITIES:
The Contractor warrants that no gratuities (in the form of entertainment, gifts, or
otherwise) were offered or given by the Contractor, or any agent or representative of
the Contractor, to any officer or employee of the State with a view toward securing
the Contract or securing favorable treatment with respect to any determinations
concerning the performance of the Contract. For breach or violation of this warranty,
the State shall have the right to terminate the Contract, either in whole or in part and
any loss or damaged sustained by the State in procuring on the open market any
items which the Contractor agreed to supply shall be borne and paid for by the
Contractor. The rights and remedies of the State provided in this clause shall not be
exclusive and are in addition to any other rights and remedies provided in law or
equity.
41.
NONDISCRIMINATION CLAUSE:
a)
During the performance of this Contract, the Contractor and its subcontractors
shall not unlawfully discriminate, harass or allow harassment, against any
employee or applicant for employment because of sex, sexual orientation, race,
color, ancestry, religious creed, national origin, disability (including HIV and
AIDS), medical condition (cancer), age, marital status, and denial of family care
leave. The Contractor and subcontractors shall ensure that the evaluation and
treatment of their employees and applicants for employment are free from such
discrimination and harassment. 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
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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.
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
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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.
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
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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
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
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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.
54.
SMALL BUSINESS PARTICIPATION AND DVBE
PARTICIPATION REPORTING REQUIREMENTS:
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June 7, 2019
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).).
