it211_web content management system_final.doc
TRANSCRIPT
IT211 WEB CONTENT MANAGEMENT SYSTEM
REQUEST FOR PROPOSALS
SEPTEMBER 14, 2006
Proposal number:IT211
Pre-bid Telephone Conference:9:00AM, September 26, 2006
Proposal due:4:30PM Pacific Time
October 24, 2006
TABLE OF CONTENTS
1. INTRODUCTION................................................................................................................................ 4
1.1 PURPOSE OF THE REQUEST FOR PROPOSALS................................................................................41.2 ACQUISITION PROCESS OVERVIEW..............................................................................................51.3 DESCRIPTION OF CURRENT SYSTEM.......................................................................................51.4 CURRENT SYSTEM ENVIRONMENT................................................................................................5
1.4.1 Campus Network...................................................................................................................... 51.4.2 Applications............................................................................................................................. 6
1.5 ACQUISITION OBJECTIVES AND GOALS........................................................................................6
2. GENERAL ADMINISTRATIVE INSTRUCTIONS...........................................................................7
2.1 INTRODUCTION TO THIS SECTION.................................................................................................72.2 PROJECT COORDINATOR.............................................................................................................. 72.3 SCHEDULE OF EVENTS (SUMMARY OF PROCESS).........................................................................7
2.3.1 Acquisition Schedule/Timetable................................................................................................72.3.2 Implementation Schedule.......................................................................................................... 8
2.4 VENDOR PROPOSAL PREPARATION INSTRUCTIONS......................................................................82.4.1 Proposal Response Date and Location......................................................................................82.4.2 Proposal Contents.................................................................................................................... 82.4.3 Section 1 - Transmittal Letter...................................................................................................92.4.4 Section 2 - Administrative Requirements...................................................................................92.4.5 Appendix C - Software License Contract...................................................................................9
2.5 RFP QUESTIONS, INTERPRETATION, AND MODIFICATIONS........................................................102.5.1 Questions Regarding the RFP.................................................................................................102.5.2 Interpretation of the RFP........................................................................................................ 102.5.3 RFP Modifications.................................................................................................................. 102.5.4 Errors in Proposal.................................................................................................................. 102.5.5 Withdrawals of Proposals.......................................................................................................102.5.6 Waiver of Minor Administrative Irregularities........................................................................112.5.7 Cost of Preparing Proposals...................................................................................................112.5.8 Non-Endorsement................................................................................................................... 11
2.6 EVALUATION PROCESS............................................................................................................... 112.6.1 Evaluation Team..................................................................................................................... 112.6.2 Evaluation Criteria................................................................................................................. 112.6.3 College Rights........................................................................................................................ 122.6.4 Definitions.............................................................................................................................. 122.6.5 Phase I: Screening Process.....................................................................................................122.6.6 Phase II Evaluation: Desired Features, Technical Requirements and Capabilities, Vendor
Considerations, Cost Proposal................................................................................................122.6.7 Acquisition of Hardware......................................................................................................... 132.6.8 Phase III: Final Evaluation...................................................................................................132.6.9 Grounds for Disqualification..................................................................................................13
2.7 CONTRACT AWARD AND EXECUTION.........................................................................................132.7.1 Contingency Provision............................................................................................................132.7.2 RFP Response Verification.....................................................................................................132.7.3 Contract Content.................................................................................................................... 142.7.4 Contract Negotiations and Issues............................................................................................142.7.5 Final Contract........................................................................................................................ 142.7.6 Vendor Debriefing.................................................................................................................. 142.7.7 Public Disclosure................................................................................................................... 14
2.8 VENDOR PROTESTS..................................................................................................................... 142.8.1 Resolution of Complaints and Protests....................................................................................14
3. APPLICATION REQUIREMENTS AND SUPPORT......................................................................18
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3.1 GENERAL INSTRUCTIONS............................................................................................................183.2 REQUIRED FORMAT.................................................................................................................... 183.3 USER MANAGEMENT/PERMISSIONS..........................................................................................183.4 CONTENT CREATION.................................................................................................................193.5 PRESENTATION/TEMPLATING...................................................................................................203.6 WORKFLOW............................................................................................................................... 213.7 VERSIONING............................................................................................................................... 223.8 DEPLOYMENT............................................................................................................................ 223.9 EASE OF USE.............................................................................................................................. 223.10 CONTENT SYNDICATION AND CONSUMPTION..........................................................................223.11 ASSET SUPPORT CAPABILITY....................................................................................................233.12 WEB STANDARDS AND ACCESSIBILITY....................................................................................233.13 INTEGRATION WITH EXISTING SYSTEMS..........................................................................................243.14 REPOSITORY TYPES...............................................................................................................................25
4 SYSTEM TECHNICAL REQUIREMENTS AND CAPABILITIES..................................................26
4.1 GENERAL INSTRUCTIONS............................................................................................................264.2 STATISTICAL INFORMATION FOR SIZING THE SYSTEM -EXISTING SYSTEM STATISTICS.............264.2.1 SYSTEM LOAD ESTIMATES......................................................................................................264.3 REQUIRED FORMAT.................................................................................................................... 264.4 SYSTEM INFRASTRUCTURE TECHNICAL REQUIREMENTS............................................................264.5 SYSTEM SECURITY TECHNICAL REQUIREMENTS........................................................................264.6 APPLICATION INTEGRATIONS.....................................................................................................264.7 HARDWARE CONFIGURATION RECOMMENDATION.............................................................274.8 OPERATING SYSTEM................................................................................................................... 274.9 APPLICATION FLEXIBILITY AND ENHANCEMENT OPTIONS........................................................284.10 APPLICATION PROGRAMMING LANGUAGE AND ENHANCEMENTS..............................................284.11 CMS WORKSTATIONS................................................................................................................. 28
5 VENDOR CONSIDERATIONS......................................................................................................... 28
5.1 INTRODUCTION........................................................................................................................... 285.2 MANDATORY VENDOR REQUIREMENTS......................................................................................285.3 CORPORATE OVERVIEW............................................................................................................. 295.4 CUSTOMER BASE........................................................................................................................ 295.5 CUSTOMER REFERENCES............................................................................................................295.6 TRAINING .................................................................................................................................. 305.7 ONGOING SOFTWARE MAINTENANCE......................................................................................305.8 ELIGIBILITY OF OTHER INSTITUTIONS OF HIGHER EDUCATION TO PURCHASE......................30
6. COST PROPOSAL INSTRUCTIONS...............................................................................................30
6.1 INTRODUCTION........................................................................................................................... 306.2 HARDWARE ACQUISITION..........................................................................................................316.3 PROPOSED SYSTEM FIVE- (5) YEAR COST MATRIX (EXHIBIT 6A).............................................316.4 PROPOSED INITIAL COST (EXHIBIT 6B).....................................................................................326.5 SUPPORTING SYSTEM SOFTWARE (EXHIBIT 6C).........................................................................326.6 OPTIONAL COSTS...................................................................................................................................32
EXHIBIT 6A: PROPOSED SYSTEM 5 YEAR COST MATRIX.............................................................35EXHIBIT 6B: INITIAL SYSTEM COST...................................................................................................36EXHIBIT 6C: SUPPORTING SYSTEM SOFTWARE.............................................................................38
SECTION 7: TERMS AND CONDITIONS...............................................................................................39
APPENDIX C: SAMPLE CONTRACT.....................................................................................................53
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Web Content Management SystemRequest for Proposals IT211
1. INTRODUCTION
1.1 Purpose of the Request for Proposals
The purpose of the Request for Proposals (RFP) is to solicit proposals from qualified vendors for a Web Content Management System (CMS) solution for The Evergreen State College (Evergreen) located in Olympia Washington.
Business Problem or Opportunity
The Web Office staff is responsible for updating web content across the campus official web presence. Site managers, whose job description often doesn’t include web responsibilities, are assigned by individual work areas to maintain their portion of the site. The turnover and the experience level of the site managers make controlling templates and maintaining standards a challenge. It often also creates problems that require expert level knowledge to fix. Some areas don’t have an assigned site manager because of the complexity of updating and maintaining a site, so the site content becomes outdated. There are also areas that don’t have a site because there are no resources currently available to create and maintain one.
In order to maintain an area’s web site, a site manager must have good knowledge of HTML, have experience with Dreamweaver and Dreamweaver templates, understand the Evergreen Cascading Style Sheets and how they relate to their site, have an understanding of the guidelines and standards for site development, and have an understanding of the workflow used to publish content on the official web site. Because it is difficult to find this skill set in a person in a non-IT position, content management on the web site must be made easier.
There are many places where we publish static reports when the data is in a database or is dynamic. Examples are the catalog, phone directory and the faculty directory. There are also places where the same content is repeated in many places.
There are emerging web applications that have instructions that should be user manageable separate from the application itself.
Proposed Solution
Background: The Information Technology Collaboration Hive (ITCH) Core met and agreed that a Content Management System was a priority for the college. A one year project FTE has been assigned to assist in the implementation of a CMS.
Scope
The scope of this project is to purchase a CMS for campus wide use.
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The contract established with the vendor selected as a result of this RFP will provide for the purchase of the CMS software. The proposal may also include options to meet anticipated future requirements. Subsequent contract addendum(s) will cover this additional functionality.
The contract will not preclude Evergreen from acquiring other equipment or software of any sort from any other vendor, or from adding to, enhancing or expanding any of the systems that it currently operates.
The estimated budget for this purchase is $50,000.
1.2 Acquisition Process Overview
Evergreen will issue this RFP to all interested vendor organizations. Proposals will be screened for meeting mandatory requirements. Proposals will then be scored and the highest scored vendors may be invited to a final phase of the selection process. The final phase may, at Evergreen’s sole option, include vendor presentations, site visits, reference checks, and any other techniques Evergreen determines helpful to the decision process. The successful vendor will be identified by the selection team based on scoring of proposals, evaluation of presentations and other information gathered during the second phase of the selection process. See section 2.3 for a proposed schedule.
1.3 Description of Current System
Evergreen currently has no formal Web Content Management System.
1.4 Current System Environment
1.4.1 Campus Network
Evergreen operates across two inter-networked campuses. The primary campus, which houses the data center, is located in Olympia, WA. Evergreen also operates a satellite campus in Tacoma, Washington, hereafter referred to as the "branch" campus.
Evergreen’s networking infrastructure provides fully switched 10/100 Ethernet connections to each desktop within the campus LAN. Gigabit ports are available in the Data Center to facilitate high-speed network backups and client access. TCP/IP and AppleTalk layer 3 protocols are routed. Connection between primary and branch campus is accomplished via a single T1 (1.44Mbps). Internet service is currently provided via 20M fiber optic link
Evergreen’s Network Services staff currently supports the following server operating systems:
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Windows 2003 Server Redhat Linux
Enterprise network backups are facilitated using Commvault’s Galaxy enterprise backup solution over 1000BaseT network located in the data center. A single media server is connected to a four head AIT3 tape library with a forty (40) tape capacity for approximately 2T of backup capacity. This infrastructure must also service backups for the rest of the enterprise.
Evergreen utilizes Microsoft Active Directory as its primary network account database. A RADIUS/TACACS+ server can also be used to provide authentication services for client/server systems.
Most departmental laser printers are networked HP series printers (e.g. 8500, 5000, 1200). Print services are provided via a Microsoft Windows 2003 print server.
Most Evergreen web application services are facilitated with Microsoft's Internet Information Server 5.0 or Apache 2.x running on Linux and we also provide support for Oracle Internet Application Server.
Evergreen also employs a Dell EMC CX500 SAN.
1.4.2 Applications
The successful vendor will provide a CMS that provides the needed functions set out in section 3 of this RFP.
The Evergreen Student and Financial records database is maintained in a SunGard SCT Banner Administrative system. This system is built on an Oracle database.
1.5 Acquisition Objectives and Goals
Non-technical staff can update and maintain their web content easily and efficiently. There is sufficient access to assets that allow creativity and flexibility while
maintaining brand consistency throughout the college. “Look and feel” and visitor usability is centrally managed while decentralized content
authoring is facilitated. Inaccurate, outdated, redundant and unauthorized content is rarely found on the
official college web site. Sharing and reuse of content is facilitated with the appropriate editorial accountability. Content consumed from external applications is properly styled. Compliance with ADA and WC3 standards are easier to achieve and maintain.
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2. GENERAL ADMINISTRATIVE INSTRUCTIONS
2.1 Introduction to this Section
The purpose of this section is to provide vendors with an understanding of the proposal process. This section contains instructions for vendors as they respond to this RFP and describes the various phases of screening, review, evaluation, and selection. It also explains the rights of Evergreen and responding vendors in these procedures.
2.2 Project Coordinator
Upon release of this RFP, all vendor communications concerning this acquisition must be directed to the Purchasing Coordinator listed below.
Marshall RobinsonInformation Technology Buyer L14022700 Evergreen Parkway NWOlympia, WA [email protected]:(360) 867-5068 FAX:(360) 867-6660
All prospective vendors should submit their contact information to the Purchasing Coordinator (preferably via email) if they wish to receive addendums, modifications, or response to questions regarding this RFP. They also MUST submit their contact information in order to receive dial-in information for the pre-bid conference. Unauthorized contact regarding the RFP with other College employees may result in disqualification.
Any oral communications will be considered unofficial and non-binding on Evergreen. Vendors should rely only on written statements issued by the Purchasing Coordinator. Email is the preferred method of communication.
2.3 Schedule of Events (Summary of Process)
2.3.1 Acquisition Schedule/Timetable
Pacific Time is defined as Pacific Time in Olympia, Washington.
RFP Release September 14, 2006Vendor Pre-Bid Telephone Conference – Vendor must email contact information no later than 4:30pm Pacific Time, Monday, September 25,to [email protected] in order to receive the conference dial-in information.
9:00am Pacific Time, Tuesday, September 26, 2006
Written Vendor Questions due 9:00am Pacific Time, October 9, 2006Evergreen’s Written Response to Questions 4:30pm Pacific Time, October 12, 2006RFP Response Due 4:30pm Pacific Time, October 24, 2006
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RFP Scoring October 25 – November 2, 2006Vendor Demonstrations November 13 – 17, 2006Announce Successful Vendor November 28, 2006Contract Negotiations December 4 – 15, 2006Go Live February 28. 2007
Evergreen reserves the right to adjust this schedule as necessary.
2.3.2 Implementation Schedule
The goal is to implement the CMS in early 2007. Evergreen will develop specific implementation plans with the successful vendor.
2.4 Vendor Proposal Preparation Instructions
2.4.1 Proposal Response Date and Location
One (1) Signed Original and four (4) hard copies of the vendor’s proposal and one (1) digital copy on CD or DVD disk, in its entirety, must be received at Evergreen’s Purchasing office by 4:30pm Pacific Time, October 24, 2006. It is the Vendor’s sole responsibility to ensure their Proposal is delivered to the Purchasing office by the date and time specified. Proposals arriving after the deadline will be returned to their senders unopened. All proposals and accompanying documentation will become the property of Evergreen and will not be returned. Proposals must be addressed to:
The Evergreen State CollegeAttn: Kathleen Haskett – Purchasing ManagerRFP IT211 Web Content Management SystemPurchasing Office: Library 1125 2700 Evergreen Parkway NWOlympia, WA 98505
2.4.2 Proposal Contents
To receive consideration, proposals must be legible and shall be formatted in the following sections. All changes and/or erasures shall be initialed in ink.
Section 1:Transmittal LetterSection 2:Administrative RequirementsSection 3:Web Content Management System Requirements, Functions, and FeaturesSection 4:Technical Requirements and CapabilitiesSection 5:Vendor ConsiderationsSection 6:Cost ProposalSection 7:Copy of sample maintenance agreement (including costs) and warranty
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2.4.3 Section 1 - Transmittal Letter
The transmittal letter must be submitted on vendor's letterhead, properly signed, in ink, by a representative of the vendor authorized to make obligations committing the vendor to the proposal.
Each vendor responding to this RFP must, as a part of the transmittal letter, include a positive statement that they understand and accept the contractual terms and conditions as stated in this RFP and the attached sample contract. Any exceptions to these clauses must be noted in the transmittal letter. Vendors must specifically cite each clause with which they have an issue, and suggest alternate language, which is acceptable to them.
Proposals submitted without a transmittal letter or an unsigned transmittal letter will be rejected on opening.
2.4.4 Section 2: Administrative Requirements
This section of the proposal must include the following information:
a. A brief (no more than three pages) executive summary of the vendor’s proposal including:
1. A high-level overview of your product and the distinguishing characteristics of your proposal.
2. Number of colleges using the proposed system.
3. How closely the proposed system meets The Evergreen State College CMS needs as stated in this RFP.
4. What attributes of your proposal will help establish a long-term relationship with The Evergreen State College.
b. A specific statement of compliance with the mandatory requirements of this RFP, as listed in Section 3, 4, 5 and 6.
c. For proposal certification, the vendor must certify in writing:
1. That all vendor proposal terms, including prices, will remain in effect for a minimum of 90 days after the Proposal Due Date.
2. That the proposed system software is currently marketed and sold.
3. That all proposed capabilities can be demonstrated by the vendor.
4. That a version of the proposed system software has been installed in at least three non-vendor owned customer sites.
2.4.5 Appendix C Software License Contract
The attached Software License Contract, Appendix C, will automatically be incorporated into any contract awarded as a result of this solicitation.
Each vendor responding to this RFP must, as a part of the transmittal letter, include a positive statement that they understand and accept the contractual terms and
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conditions. Any exceptions to these clauses must be noted in the transmittal letter. Vendors must specifically cite each clause with which they have an issue, and suggest alternate language acceptable to them.
Vendors may wish to include references to (and copies of) other terms and conditions previously agreed upon between the vendor and the State of Washington. Any clauses not so indicated will be considered as acceptable to the vendor and not open to future negotiations. Clauses mentioned in the vendor’s RFP response will remain negotiable until a final contract is negotiated with the Successful Vendor.
The RFP and all of its specifications and the vendor’s responses to them will automatically be incorporated into any contract resulting from this solicitation. All representations made in the proposal will be binding upon the vendor.
The contract established with the vendor selected as a result of this process will provide for the purchase and on-going maintenance/support of the CMS.
The contract will not preclude Evergreen from acquiring other equipment or software of any sort from any other vendor, or from adding to, enhancing or expanding any of the data processing systems that it currently operates.
2.5 RFP Questions, Interpretation, and Modifications
2.5.1 Questions Regarding the RFP
All questions must be submitted to the Purchasing Coordinator (the Coordinator) in writing (preferably via email), citing the particular RFP section and paragraph number. Copies of the question and response will be distributed via email to all potential vendors who have provided the Coordinator with their contact information. Questions must be received no later than 9:00am Pacific Time, September 26, 2006.
2.5.2 Interpretation of the RFP
Should any discrepancies in or omissions from the specifications be found, or doubt as to their meaning exist, the vendor shall at once notify the Project Coordinator in writing no later than 9:00am. Pacific Time, September 26, 2006. The Project Coordinator will send written instructions or addendum as required to all interested parties. All addendum issued shall be incorporated into the RFP and the contract. Evergreen shall not be responsible for oral interpretations.
2.5.3 RFP Modifications
Evergreen reserves the right to change the acquisition schedule or issue amendments to the RFP at any time. Evergreen also reserves the right to cancel or reissue the RFP.
2.5.4 Errors in Proposal
Vendors will not be allowed to alter or retract proposal documents after the deadline for proposal submission.
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2.5.5 Withdrawal of Proposals
Vendors may withdraw a proposal that has been submitted at any time up to the proposal closing date and time. To accomplish this, a written request signed by an authorized representative of the vendor must be submitted to the Purchasing Coordinator. After withdrawing a previously submitted proposal, the vendor may submit another proposal at any time up to the proposal closing date and time.
All proposals submitted which are not withdrawn before the proposal closing date and time shall remain valid for 90 days following the proposal due date. Proposals that specify expiration in less than 90 days will be considered non-responsive and will be rejected.
2.5.6 Waiver of Minor Administrative Irregularities
Evergreen reserves the right, at its sole discretion, to waive minor administrative irregularities contained in any proposal.
2.5.7 Cost of Preparing Proposals
Evergreen is not liable for any costs incurred by vendors in the preparation and presentation of proposals, demonstrations, or incurred for any other purpose. These costs may not be charged to the Purchaser.
2.5.8 Non-Endorsement
As a result of the selection of a vendor to supply products and/or services to Evergreen, Evergreen is neither endorsing nor suggesting that the vendor’s product is the best or only solution. The vendor agrees to make no reference to Evergreen in any literature, promotional materials, brochures, sales presentation or the like without the express written consent of Evergreen.
2.6 Evaluation Process
2.6.1 Evaluation Team
Evaluation procedures will be performed by the Purchasing Coordinator and the evaluation team consisting of members from the Web team, IT, and other College participants.
2.6.2 Evaluation Criteria
It is the goal of Evergreen to evaluate each vendor proposal thoroughly and fairly. Evaluation criteria are summarized in the following paragraphs.
Maximum Number of Points by Category
a. Mandatory functional, technical, and vendor requirements are listed in Sections 3, 4, and 5, respectively. Vendors failing to meet these minimum requirements will not be considered for further evaluation.
635 b. Functional completeness, suitability, and flexibility of application software, as indicated by vendor’s written responses to Section 3.3 through Section 3.14 of this RFP.
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85 c. Technical suitability of the system, as indicated by vendor’s responses to Section 4.
30 d. Vendor support capabilities, experience, record of successful installations and product enhancements, commitment to the product, as specified in Section 5.
150 e. Total five-year cost of the proposed system, including maintenance, and other costs identified in Section 6.
300 f. Evaluations based on references, vendor demonstrations, and site visits/phone survey.
1200 Total Maximum Number of Points
2.6.3 College Rights
Evergreen reserves the right to accept or reject proposals in whole or in part.
Evergreen shall award the contract based on the best combination of attributes as outlined in the evaluation criteria.
Determination as to clarity or completeness of responses to any of the provisions of the RFP will be made solely by Evergreen. Evergreen reserves the right to request clarification(s) to any and all responses to this RFP.
Evergreen reserves the right to modify, cancel, and/or reissue the RFP.
2.6.4 Definitions
Mandatory Requirement:
A mandatory requirement is a minimum need that must be met by the vendor. Evergreen will eliminate from the evaluation process any vendor not fulfilling all mandatory requirements.
Desired Feature: All other requirements, as stated throughout the RFP, are “desired” and will be evaluated and weighted (as part of the Intermediate Evaluation Phase) according to the terms of this RFP.
2.6.5 Phase I: Screening Process for Mandatory Requirement
The mandatory requirements must be included in the proposed system. Proposals for systems that do not meet these requirements will be rejected and not considered for further participation in this acquisition.
2.6.6 Phase II Evaluation: Mandatory Requirements, Desired Features, Technical Requirements and Capabilities, Vendor Considerations, Cost Proposal
Proposals passing the Screening for mandatory requirements will be evaluated in detail on the ability to meet the mandatory requirements, desirable features, technical requirements, vendor considerations and the cost proposal. Vendors are required to answer each question in all sections as clearly as possible.
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The financial evaluation will be based on total cost of ownership of the system over a period of five years. The costs used will be those provided in the vendor’s response to Section 6 of the RFP. Evergreen may also add any additional hardware/software/implementation costs not included in the Vendor’s proposal that would be required to successfully implement the project to the Vendor’s cost proposal.
Vendors will be ranked by total points. Evergreen will select and announce the finalists after completing the intermediate evaluation.
2.6.7 Acquisition of Hardware
Hardware may be provided by Evergreen.
2.6.8 Phase III: Final Evaluation
This phase of the evaluation may include customer reference telephone calls, vendor demonstrations of their proposed systems, and/or site visits at the sole discretion of Evergreen. Evergreen may request additional information from vendor finalists to clarify technical responses and vendor cost proposals. The purpose of the vendor demonstrations will be to evaluate the proposed CMS and assess the system in terms of the functionality requested by Evergreen. Site visits may, at the sole option of Evergreen, be conducted to evaluate the operation of the proposed system in a comparable college environment.
Members of the evaluation team may contact customer references provided by the vendor, and may also contact other vendor customers. The team will rate vendors based on customer responses.
2.6.9 Grounds for Disqualification
Failure to meet a mandatory requirement (grounds for disqualification) shall be established by any of the following conditions:
a. The vendor fails to meet response deadline.
b. The vendor states that a mandatory requirement cannot be met.
c. The vendor presents the information requested by the RFP in a manner inconsistent with the instructions stated by mandatory requirements in this RFP.
d. The vendor furnishes an incomplete response.
2.7 Contract Award and Execution
2.7.1 Contingency Provision
When the Successful Vendor is identified, contract negotiations will begin. If, for any reason, a contract is not awarded to the Successful Vendor, then the next highest ranked finalist vendor may be considered for contract negotiations.
2.7.2 RFP Response Verification
The general conditions and specifications of the RFP and the successful vendor’s response, as amended by agreements between Evergreen and the vendor, will become part of the contract documents.
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2.7.3 Contract Content
The vendor selected as the Successful Vendor will be expected to enter into an agreement with Evergreen that is substantially the same as the contract included with this RFP as Appendix C.
2.7.4 Contract Negotiations and Issues
The vendor must raise all issues with the contractual terms and conditions in the transmittal letter of their proposal. Issues raised in the letter are negotiable until a firm contract is negotiated.
2.7.5 Final Contract
If the selected vendor fails to sign the contract within five (5) business days of delivery of the final contract, Evergreen may elect to cancel the award and award the contract to the next-highest ranked vendor.
2.7.6 Vendor Debriefing
Vendors of unsuccessful proposals may, within three (3) business days of the announcement of the Apparent Successful Vendor, request a meeting for debriefing and discussion of their proposals. The request must be submitted via email to the Purchasing Coordinator and received within three (3) business days of the announcement.
Comparisons between proposals or evaluations of other vendor’s proposals will not be allowed. Evergreen will attempt to respond to questions and concerns in this debriefing.
2.7.7 Public Disclosure
It is Evergreen’s intent to receive proposals in response to this RFP, at the time and place designated in the Timetable. At that time, only the names of the vendors submitting proposals may be released. All proposals shall remain confidential until the contracts, if any, resulting from this RFP have been signed. After signing of the contracts, all information submitted as part of each vendor’s response shall become part of the public record for this acquisition. Virtually all documents submitted as part of this acquisition process must be considered part of the public record and available for any party upon request.
Any information contained in the proposal that is proprietary must be placed in a separate envelope, and clearly marked proprietary. Marking of the entire proposal as proprietary will be neither accepted nor honored. If a request is made to view a vendor’s proposal, Evergreen will comply according to appropriate Public Disclosure Commission Procedures.
2.8 Vendor Protests
2.8.1 Resolution of Complaints and Protests
ComplaintsA complaint may be made before a vendor responds to a solicitation document if the vendor believes that the document unduly constrains competition or contains
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inadequate or improper criteria. The written complaint must be made to Evergreen before the due date of the solicitation response. Evergreen solicitation process may, however, continue.
Evergreen must immediately forward a copy of the complaint to the policy and planning unit of the Department of Information Services (DIS). Evergreen must also reply to the vendor with a proposed solution and advise DIS of its reply. If the vendor rejects Evergreen’s proposed solution, DIS may direct modification of solicitation requirements or the schedule, direct withdrawal of the solicitation, or may take other steps that it finds appropriate. The DIS decision is final; no further administrative appeal is available.
Protests
Grounds For ProtestProtests may be made after Evergreen announces the successful vendor and after the protesting vendor has had a debriefing conference with Evergreen. Protests may be made on only these grounds:
Arithmetic errors were made in computing the score. Evergreen failed to follow procedures established in the solicitation document,
the IT Investment Policy, the IT Investment Standards, or applicable state or federal laws or regulations.
There was bias, discrimination, or conflict of interest on the part of an evaluator.
Protest ProcessProtests are always initially made to Evergreen. The protest letter must be signed by a person authorized to bind the vendor to a contractual relationship. Evergreen must receive the written protest within five business days after the debriefing conference and must, in turn, immediately notify DIS of receipt of the protest. It must also postpone further steps in the acquisition process until the protest has been resolved.
Protests must be delivered in writing within five (5) business days after the debriefing conference to:
The Evergreen State CollegeAttn: Kathleen HaskettPurchasing Manager L11252700 Evergreen Parkway NWOlympia, WA 98505
Individuals not involved in the protested acquisition will objectively review the written protest material submitted by the vendor and all other relevant facts known to Evergreen. Evergreen must deliver its written decision to the protesting vendor within five business days after receiving the protest, unless more time is needed. The protesting vendor will be notified if additional time is necessary.
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If the protesting vendor is not satisfied with Evergreen’s decision, it may appeal. Appeal is made to DIS unless the acquisition requires Information Services Board (ISB) approval. Appeals in the latter two situations are made to the ISB. The ISB appeal process is discussed below, after discussion of the DIS appeal process.
Written notice of appeal to DIS must be received by DIS within five business days after the vendor receives notification of Evergreen's decision.
In conducting its review, DIS will consider all available relevant facts. DIS will resolve the appeal in one of the following ways:
Find that the protest lacks merit and upholding Evergreen's action. Find only technical or harmless errors in Evergreen's acquisition process,
determining Evergreen to be in substantial compliance, and rejecting the protest; or
Find merit in the protest and provide options to Evergreen, including: Correcting errors and reevaluating all proposals; Reissuing the solicitation document; or Making other findings and determining other courses of action as appropriate.
DIS will issue a written decision within five business days after receipt of the notice of appeal, unless more time is needed. The protesting vendor will be notified if additional time is necessary. DIS’ determination is final; no further administrative appeal is available.
If a protest arises from an acquisition that requires ISB approval, the vendor may appeal to the Chair of the ISB if it is not satisfied with Evergreen’s decision. Written notice of appeal must be received by the Chair of the ISB within five business days after the vendor received notification of Evergreen’s decision. The protesting vendor does not first appeal to DIS. The Chair of the ISB will establish procedures to resolve the appeal. The resulting decision is final; no further administrative appeal is available.
Form and ContentA written protest must contain the facts and arguments upon which the protest is based and must be signed by a person authorized to bind the vendor to a contractual relationship. At a minimum, this must include:
The name of the protesting vendor, its mailing address and phone number, and the name of the individual responsible for submission of the protest.
Information about the acquisition and the acquisition method and name of the issuing agency.
Specific and complete statement of the agency action(s) protested. Specific reference to the grounds for the protest. Description of the relief or corrective action requested.
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A copy of the issuing agency's written decision on the protest, for appeals to the ISB or to DIS.
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3. APPLICATION REQUIREMENTS AND SUPPORT
Evaluation Value: 635 points total
3.1 General Instructions
The vendor is required to respond in the format specified in Section 3.2 to every item in this section.
Items identified with Mandatory in the second column are considered mandatory requirements. All others are desired features. (See Definitions, Section 2.6.4.)
Some multiple requirements are stated within a single numbered item. In these cases, please assume that all items must be present or the answer is No. In other words, when multiple requirements (X, Y, Z) are in the same numbered item, unless otherwise stated, the item is asking for X and Y and Z.
3.2 Required Format
Vendors must respond directly to each item in section 3. The response must be in the following format:
Ref # X DescriptionYes (if your system includes feature) or No (if your system does not include feature)
Explanation (If you answered Yes, provide an explanation of how your system meets this specification)
For example:
3.2.1 Mandatory
Web interface for CMS Access
Yes
Our system includes a fully customizable web interface that slkdf h kl sfdh jbs sjf kfhkjs fhkj hsadkf hshdka fkjfhsd ahfj sdfh sdkjaf hkj sda fkj sdf sadfsdalk flksh flkh sdfl hsdlha fjh sfjhs f sad fhj fhkjs f and will solve all your problems.
3.3 User Management/Permissions
3.3.1 Mandatory Must support a minimum of two (2) hundred content contributors
3.3.2 Mandatory Must allow at least five (5) individuals to create and edit templates.
3.3.3 Mandatory Must allow the provisioning of editing privileges for a specific user to a specific section of the web site. Provide details.
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3.3.4 Desirable Does the CMS support user groups? Provide details and limitations.
3.3.5 Mandatory Must allow each user to be in more than one (1) user group.
3.3.6 Mandatory Must allow administrators to grant editing access for specific users or groups (granular ACLs) to site, section, page, or page components. Provide details and limitations.
3.3.7 Desirable Does the CMS support role-based authorization allowing a system administrator to create roles and delegate particular privileges to each role. Provide details and limitations.
3.4 Content Creation
3.4.1 Mandatory Must allow creation and editing of content using a Web interface.
3.4.2 Mandatory Must support WYSIWYG editing. Provide details and limitations.
3.4.3 Desirable WYSIWYG editor can be restricted to specific functionality. Provide details and limitations.
3.4.4 Mandatory WYSIWYG editor supports CSS style selection
3.4.5 Desirable WYSIWYG editor facilitates placing images in content – describe process
3.4.6 Mandatory WYSIWYG editor facilitates linking to other pages managed in the CMS – describe process
3.4.7 Desirable System provides Spell Checking
3.4.8 Mandatory Web interface works in standards compliant browsers, including at a minimum Mozilla Firefox V1.5 and above on MAC OS X and Windows, and Internet Explorer 6 on Windows.
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3.4.9 Mandatory Does not require non-browser based client for any content editor functionality. (Admin functions may be dependent on client)
3.4.10 Desirable Administrator functions do not require non-browser based client.
3.4.11 Desirable System has capability to import existing Web sites. Provide details and limitations.
3.4.12 Desirable System allows for embedding of PHP within the content managed by the CMS.
3.4.13 Desirable System provides support for native Microsoft Office document conversion to XHTML presentation.
3.4.14 Desirable System provides support of authoring tools such as Dreamweaver, etc. Provide detail of tools supported.
3.4.15 Desirable System allows non-technical users to create web-based (HTML) forms whose output can be emailed to a specific person and/or saved to a database or file. Provide details.
3.5 Presentation/Templating
3.5.1 Mandatory Must support separation of content and look and feel through a templating system. Provide details
3.5.2 Mandatory Supply the source code to a template that features header, body, menu, and footer content sections with content within those sections. Describe how the template can be modified by a template editor and provide a primer to templating within the CMS.
3.5.3 Desirable Does the CMS support multi-level nested templates (e.g. a department specific template, which could be wrapped within an overall college template). Provide details.
3.5.4 Desirable Does the CMS allow Administrators to create custom structured
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content types for specific kinds of content (e.g. news articles, faculty profiles, catalog content)? A sample structure for a news article might be: title, introduction, body, web address, and author information. Provide details.
3.5.5 Desirable Tagging/Categories – Does the CMS support the organization of content within the system in groups regardless of the content’s source, location, or type? Provide details.
3.6 Workflow
3.6.1 Mandatory Does the CMS Support content owner - content contributor workflow model where owner is responsible for approving changes made by contributors? Describe the process for creating the workflow.
3.6.2 Desirable Does the CMS permit scheduled deployment of content? Provide details.
3.6.3 Desirable Does the CMS permit automatic expiration of content? Provide details.
3.6.4 Desirable Does the CMS permit automatic archival of content to secondary pages (e.g.: older news articles pushed to news archive page or section)?
3.6.5 Desirable Does the CMS support content expiration notification to publishers using the asset?
3.6.6 Desirable Does the CMS have the ability to send e-mail notifications based on workflow steps?
3.6.7 Desirable Does the CMS have the ability to periodically send an e-mail summary of workflow actions required rather than an individual e-mail for each action?
3.6.8 Desirable Does the CMS support workflow tracking and reporting? Provide details and sample of reports.
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3.7 Versioning
3.7.1 Desirable Does the CMS support locking of assets to prevent multiple individuals from editing the same object concurrently?
3.7.2 Desirable Does the CMS create a new version each time an object is modified? Provide details.
3.7.3 Mandatory The CMS must provide version tracking and audit trail of stored content and assets. Provide details.
3.7.4 Desirable Does the CMS have the ability to display differences between versions?
3.7.5 Desirable Does the CMS have the ability to promote and rollback pages or page-components?
3.8 Deployment
3.8.1 Mandatory The CMS must support deployment of content managed within the CMS to Test and Production environments. Provide details.
3.9 Ease of Use
3.9.1 Desirable The CMS provides an intuitive process to add, edit, and maintain content. Describe the steps to create a new page, add a header (e.g. <h1>), two paragraphs of text, an image from the user’s desktop and a link to another page managed within the CMS.
3.9.2 Desirable Describe how a user would select a template.
3.9.3 Desirable Describe the steps required for a user to edit a single sentence in a page they have editorial access to.
3.10 Content Syndication and Consumption
3.10.1 Mandatory The CMS can be configured to create RSS feeds. Describe.
3.10.2 Mandatory Consumes external XML data sources. Provide details.
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3.11 Asset Support Capability
(NOTE: Assets as defined as images, documents, and reusable portions of content)
3.11.1 Desirable Does the CMS provide reporting on asset usage? Describe or provide sample report.
3.11.2 Desirable Does the CMS provide notification prior to deletion of an asset in use within the CMS? Provide details.
3.11.3 Desirable Does the CMS support embedding of streaming media in delivered pages (streaming media hosted on separate server)?
3.11.4 Mandatory The CMS must allow users to upload documents (e.g. Word, PDF, Flash).
3.11.5 Desirable Does the CMS allow administrators to define uploadable file types? Provide details.
3.11.6 Desirable Does the CMS provide tracking when new versions of documents are uploaded and by whom? Provide details.
3.12 Web Standards and Accessibility
3.12.1 Mandatory Content produced by CMS must be compliant with the W3C XHTML and W3C CSS markup standards.
3.12.2 Desirable Pages and content produced by CMS is Section 508 compliant (WCAG I & II). Provide details.
3.12.3 Mandatory Does the CMS validate internal links?
3.12.4 Desirable Does the CMS automatically correct links to objects managed within the CMS when objects are moved or renamed? Provide details.
3.12.5 Desirable Does the CMS validate external links?
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3.12.6 Desirable Does the CMS have the ability to enforce naming conventions for files and directories?
3.12.7 Mandatory The CMS must produce persistent and human readable URLs (e.g. www.evergreen.edu/admissions/visit).
3.12.8 Desirable List the metadata fields available on each object hosted within the CMS.
3.12.9 Desirable Describe how administrators configure metadata fields on objects stored within the CMS.
3.12.10 Desirable Describe how content editors add and edit metadata related to a specific page within the CMS.
3.12.11 Desirable Does the CMS have the ability to transform content into multiple formats for a variety of devices and audiences (e.g. XHTML, WML, PDF)?
3.13 Integration with Existing Systems
3.13.1 Mandatory The CMS must support Active Directory for authentication -or- support for Centralized Authentication System (CAS - ja-sig.org/products/cas/).
3.13.2 Desirable Does the CMS support Active Directory groups?
3.13.3 Desirable List the major objects accessible via your application’s API and whether they are writable only, readable only, or readable and writable. Describe or show an example of your API documentation.
3.13.4 Desirable Does the CMS support WebDAV (asset upload and/or content editing)?
3.13.5 Mandatory The CMS must be compatible with 3rd party search tools (e.g.
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Google). Provide details.
3.14 Repository Types
3.14.1 Mandatory The CMS must use an open, standards based repository. A relational database is preferred. Provide details of all supported repositories.
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4 SYSTEM TECHNICAL REQUIREMENTS AND CAPABILITIES
Evaluation Value: 85 Points
4.1 General Instructions
Within this section, vendors are asked to define the technical requirements for hardware/software supporting their system.
4.2 Statistical Information for Sizing the System -Existing System Statistics
This section includes statistics that describe system activity. These are included to assist vendors with appropriate system sizing.
SYSTEM SIZING REQUIREMENTSEvergreen has one (1) web site – www.evergreen.eduThere are approximately 60K pages currently hosted within Evergreen’s siteEvergreen’s web site receives approximately 3000 visits per dayThe web site receives approximately 22, 800 hits per dayThe web site has approximately 200 contributors
4.2.1 System Load Estimates
In recommending equipment for this RFP, vendors are asked to base their proposal on other customers' actual systems, accommodating for size differences needed to accommodate The Evergreen State College.
4.3 Required Format
Vendors must respond directly to each item in section 4.4 – 4.11 in essay format.
4.4 System Infrastructure Technical Requirements
Provide details of infrastructure requirements needed for implementation of the CMS.
4.5 System Security RequirementsDescribe the CMS provisions for protecting information being transmitted to/from authentication service.
4.6 Application IntegrationsVendors are to describe their application integration with currently used standard third party productivity tool applications such as Microsoft Office, etc.
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4.7 Hardware Configuration Recommendation
Vendors must recommend configurations for computer hardware required for a successful implementation. Statistics stated in Section 4.2 above should be considered to determine workload. All hardware components required for the complete installation must be included.
Vendor is responsible for determining the resources needed by The Evergreen State College. The recommended approach is to rely heavily on present installations of the proposed system at comparably sized organizations with comparable functions and features.
4.7.1 Describe the recommended hardware configuration for the server to run the base system and, if necessary, each subsystem. Please be specific as to the quantity and hardware specifications:
a. Memoryb. Processor(s)c. Network Adaptersd. Disk Architecture
4.7.2 Other
Specify any other hardware/software requirements to implement the proposed system.
4.8 Operating System
4.8.1 The Web Content Management System must conform to the following standard:
Server: Windows Server 2003 or Redhat Enterprise Linux ES3 or greater
4.8.2 For all components of the proposed system software, provide the following information for both server and client:
Operating SystemSoftware nameRelease number (version)Release date (date version released)Language written inDatabases supportedFirst availability date
4.8.3 Provide the name and version for all utility software required by the application.
4.8.4 Describe your commitment to keeping versions, releases and service packs up to date.
4.8.5 Describe the ability of Evergreen to modify, enhance software provided with this system. (e.g. is the source code delivered with the product?).
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4.9 Application Flexibility and Enhancement Options
4.9.1 Describe the system architecture of the proposed system (e.g. use of new software technologies) that maximize customization and system maintenance productivity.
4.10 Application Programming Language and Enhancements
4.10.1 State the programming language(s) used in your system.
4.10.2 Are package enhancements and corrections to system bugs automatically distributed to users? Is this service included in the maintenance price?
4.10.3 Describe the tools available to the user for modification of the delivered system. Discuss what can and cannot be modified by the user using these tools. Discuss the expertise and training necessary to use the tools. Describe the vendor support available for these activities.
4.10.6 Describe your procedures for testing, training, and implementing new releases or enhancements while minimizing downtime and interruption of production users.
4.10.7 Are major upgrades included as part of your maintenance/support agreement?
4.11 CMS Workstations
PC and MAC workstations connected to the network will typically be the devices used with the CMS.
4.11.1 Describe the minimum and recommended workstation configurations (CPU, RAM, disk size, etc.) for use with the CMS. Include any additional software required such as data base drivers, browser version, third party software.
5 VENDOR CONSIDERATIONS
Evaluation Value: 30 Points
5.1 Introduction
This section is intended to obtain information regarding the vendor's organization, history, stability, experience, and operating results. This information will be used to evaluate the vendor's ability to support the proposed CMS. Vendor must respond to each of the following in short essay format:
5.2 Mandatory Vendor Requirements
5.2.1 The vendor must assume responsibility for the delivery of all vendor supplied software and services in the proposal.
5.2.2 The vendor must commit to provide access to user and technical documentation for all proposed software. This documentation must be kept updated to reflect the functionality of the current version of the software. The vendor must allow Evergreen unlimited
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reproduction rights for all documentation (for departmental use only). The documentation should include:
General description and flow of programs and data files
Sample reports, source documents, and screen formats
Installation instructions
5.2.3 The vendor must have a system operational in at least three (3) sites.
5.3 Corporate Overview
5.3.1 Give a brief history of your company
5.3.2 How long has your company marketed your CMS?
5.3.3 What other products does your company market and/or produce?
5.3.4 Please describe your current plans and goals for software product enhancements that demonstrate your interest in keeping current with major concepts in the educational industry. Also describe how decisions are made for enhancements which are actually developed.
5.4 Customer Base
5.4.1 How many times have you installed (or are installing) the proposed product(s) to date?
5.4.2 How many of these are still in operation?
5.5 Customer References
5.5.1 Provide at least three (3) specific references for sites with the proposed system. At least one reference should be a site that is comparable in size to Evergreen.
Include the following information for each of the references:
Customer name Customer business address Contact persons (provide titles, telephone numbers, and email addresses)
Example: System AdministratorDepartment ManagerI.S. Manager
Date installed Estimated size of the system in comparison with The Evergreen State College. How long did it take to install the system? How many staff were trained?
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5.6 Training
Training is not included in the initial scope of this purchase. However, in the event that Evergreen sees the need for training in the CMS, please provide the following:
Describe the availability of training system administrators and users. Provide pricing in Section 6 Options for on and off site training.
5.7 Ongoing Software Maintenance
5.7.1 Provide a description of the support organization (for post-installation problems) which indicates the number and skill levels of support staff for the proposed software product.
5.7.2 Provide a description of your software support organization and typical response time for each service option. Include the following capabilities:
a. Hours and days of operation
b. Email support
c. Phone support
d. Remote diagnostic software problem resolution
e. Web based services (online knowledge base, user forums, etc.)
f. Escalation procedures
5.8 Eligibility of Other Institutions of Higher Education to purchase
Discuss your willingness to include other Washington Institutions of Public Higher Education (WIPHE) in this process. Provide information regarding any incentive discounts or additional services that would be offered should a second institution commit to using a contract that results from this RFP within the first year of the contract. Also explain any escalating benefits that may accrue to the WIPHE members as the number of institutions using the resulting contract increases.
Indicate the number of months or years by which a WIPHE institution may exercise an option to obtain these services in accordance with your proposal and any resulting contract. The terms of this opportunity will be made part of any resulting agreement.
6. COST PROPOSAL INSTRUCTIONS
Evaluation Value: 150 Points
6.1 Introduction
The cost proposal must be submitted and appropriately labeled as such, with the identity of the vendor and the specific system proposed. The vendor should note that costs will not be negotiated prior to selection of the apparent successful vendor. The costs included in this proposal must represent the best offer that the vendor can make. Educational, volume or other discounts, if any, must be reflected in the proposed pricing. The cost proposal must be valid for 90 days from the Proposal Due Date.
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The cost proposal should include costs for each of the following:
Application Software
Hardware (optional – this may be acquired separately)
Support/Maintenance Contract
Other elements of cost associated with acquiring and operating the system.
Any inflationary adjustments for annual costs must be described specifically and completely. Estimates for travel expenses should be included in all costs for training and/or support, etc.
The Vendor should describe the proposed term of the contract and payment terms.
6.2 Hardware Acquisition
Evergreen normally purchases all hardware components from sources other than the software vendor based on the vendor's proposed hardware configuration. This allows The Evergreen State College the option of taking advantage of special pricing available to Evergreen. In evaluating vendor proposals, Evergreen may add costs for the recommended hardware to the Vendor’s cost proposal.
6.3 Proposed System Five- (5) Year Cost Matrix (Exhibit 6A)
Exhibit 6A provides the format for submitting an overall Five-Year Cost Matrix for financial analysis.
6.4 Proposed Initial Cost
Exhibit 6B provides the format for submitting the initial system cost
Application Software
Provide cost information for software specified in Section 3.0 of this RFP.
a. Package/module name: Identify the application software by name.
b. Non-recurring cost: Provide any one-time cost associated with the software. Identify as purchase, license fee, etc. All license fees will be assumed to be perpetual unless specified otherwise.
Support/Maintenance Fee
Annual support/maintenance cost: Provide and identify maintenance cost. All maintenance fees will be assumed to begin immediately after module installation, testing, and acceptance unless specified otherwise. Maintenance costs will be assumed to include retrofit of all customizations to future versions of the software unless specified otherwise. If such separate costs are proposed, please list them separately.
Other Costs
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Provide details and costs for any additional application software support categories, or required services, that are not listed, but required for successful implementation of the CMS.
6.5 Supporting System Software (Exhibit 6C)
Provides the format for submitting supporting system software (such as Adobe Acrobat, Crystal Reports, etc) descriptions required for the successful implementation and operation of the System
6.6 Optional Costs
Provide costs for any optional services or product enhancements such as additional modules, product training, etc.
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The Evergreen State College CMS
EXHIBIT 6A: PROPOSED SYSTEM 5 YEAR COST MATRIX
Prices in Effect From: To:(Dates)
YEAR 1 YEAR 2 YEAR 3 YEAR 4 YEAR 5 TOTAL
STANDARD SOFTWARE PACKAGE
SUPPORT/MAINTENANCE FEES
OTHER COSTS
GRAND TOTAL
NOTE: Costs entered here should be consistent with those presented elsewhere in the RFP response.
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The Evergreen State College CMS
EXHIBIT 6B: INITIAL SYSTEM COSTSSOFTWARE PURCHASE COSTS
Module Cost Notes
Expand grid as necessary to respond
HARDWARE PURCHASE COSTS
Component and description Cost Notes
SUPPORT/MAINTENANCE CONTRACT Cost Notes
OTHER Cost Notes
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OPTIONAL COSTS
Training: specify type of training and on-site & off-site cost
Product options:
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The Evergreen State College CMS
EXHIBIT 6C: SUPPORTING SYSTEM SOFTWARESUPPORTING SYSTEM
SOFTWAREDescription/Purpose
Brand and Version
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SECTION 7: SPECIAL TERMS AND CONDITIONS
A. AWARD:Evergreen will make an award to a single Vendor. Award will be based upon the proposal that best meets the specified needs of and offers the most benefit to Evergreen. It is Evergreen’s sole responsibility to award a contract.
B. NON AWARDEvergreen reserves the right to not award if funds become unavailable.
C. PRICING:Pricing must be held firm for 90 calendar days after specified opening date.
D. ESTABLISHED BUSINESS:To be considered responsive, bidder must, at the time of bid opening, be an established business firm with all required licenses, bonding, facilities, equipment, and trained personnel necessary to perform the work as specified in the bid solicitation. Failure to comply with this requirement may be cause for rejection of your bid.
E. OSHA and WISHA: Vendor agrees to comply with conditions of the Federal Occupational Safety and Health Act of 1970 (OSHA) and, if manufactured or stored in the State of Washington, the Washington Industrial Safety and Health Act of 1973 (WISHA) Chapter 19.28 RCW and WAC 296-24 and the standards and regulations issued thereunder and certifies that all items furnished and purchased under this order will conform to and comply with said standards and regulations. Vendor further agrees to indemnify and hold harmless purchaser from all damages assessed against purchaser as a result of Vendor’s failure to comply with the acts and standards there under and for the failure of the items furnished under this RFP to so comply.
F. INDEMNIFICATION: Vendor shall defend, indemnify, and hold Evergreen, its officers, officials, employees, agents, and volunteers harmless from any and all claims, injuries, damages, losses, or suits, including all legal costs and attorney fees, arising out of or in connection with the performance of this agreement, but only to the extent of the Vendor’s negligence.
Evergreen’s inspection or acceptance of any of the Vendor’s work when completed shall not be grounds to avoid any of these covenants of indemnification.
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THIS INDEMNIFICATION CONSTITUTES THE VENDOR’S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW,
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SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER.
The provisions of the section shall survive the expiration or termination of this agreement.
G. PATENT AND COPYRIGHT INDEMNIFICATIONVendor, at its expense, shall defend, indemnify, and save Purchaser harmless from and against any claims against Purchaser that any Product supplied hereunder, or Purchaser’s use of the Product within the terms of this Contract, infringes any patent, copyright, utility model, industrial design, mask work, trade secret, trademark, or other similar proprietary right of a third party worldwide. Vendor shall pay all costs of such defense and settlement and any penalties, costs, damages and attorneys’ fees awarded by a court or incurred by Purchaser provided that Purchaser:
1. Promptly notifies Vendor in writing of the claim, but Purchaser’s failure to provide timely notice shall only relieve Vendor from its indemnification obligations if and to the extent such late notice prejudiced the defense or resulted in increased expense or loss to Vendor; and
2. Cooperates with and agrees to use its best efforts to encourage the Office of the Attorney General of Washington to grant Vendor sole control of the defense and all related settlement negotiations.
If such claim has occurred, or in Vendor’s opinion is likely to occur, Purchaser agrees to permit Vendor, at its option and expense, either to procure for Purchaser the right to continue using the Product or to replace or modify the same so that they become non infringing and functionally equivalent. If use of the Product is enjoined by a court and Vendor determines that none of these alternatives is reasonably available, Vendor, at its risk and expense, will take back the Product and provide Purchaser a refund. In the case of Product, Vendor shall refund to Purchaser its depreciated value. No termination charges will be payable on such returned Product, and Purchaser will pay only those charges that were payable prior to the date of such return. Depreciated value shall be calculated on the basis of a useful life of four (4) years commencing on the date of purchase and shall be an equal amount per year over said useful life. The depreciation for fractional parts of a year shall be prorated on the basis of three hundred sixty-five (365) days per year. In the event the Product has been installed less than one (1) year, all costs associated with the initial installation paid by Purchaser shall be refunded by Vendor.
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Vendor has no liability for any claim of infringement arising solely from:
1. Vendor’s compliance with any designs, specifications or instructions of Purchaser;
2. Modification of the Product by Purchaser or a third party without the prior knowledge and approval of Vendor; or
3. Use of the Product in a way not specified by Vendor;
unless the claim arose against Vendor’s Product independently of any of these specified actions.
H. NO SURREPTITIOUS CODE WARRANTY
Vendor warrants to Purchaser that no licensed copy of the Software provided to Purchaser contains or will contain any Self-Help Code nor any Unauthorized Code as defined below. Vendor further warrants that Vendor will not introduce, via modem or otherwise, any code or mechanism that electronically notifies Vendor of any fact or event, or any key, node, lock, time-out, or other function, implemented by any type of means or under any circumstances, that may restrict Purchaser’s use of or access to any program, data, or equipment based on any type of limiting criteria, including frequency or duration of use for any copy of the Software provided to Purchaser under this Contract. The warranty is referred to in this Contract as the “No Surreptitious Code Warranty.”
As used in this Contract, “Self-Help Code” means any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of a person other than a licensee of the Software. Self-Help Code does not include software routines in a computer program, if any, designed to permit an owner of the computer program (or other person acting by authority of the owner) to obtain access to a licensee’s computer system(s) (e.g., remote access via modem) solely for purposes of maintenance or technical support.
As used in this Contract, “Unauthorized Code” means any virus, Trojan horse, worm or other software routines or equipment components designed to permit unauthorized access, to disable, erase, or otherwise harm Software, equipment, or data; or to perform any other such actions. The term Unauthorized Code does not include Self-Help Code.
Vendor will defend Purchaser against any claim, and indemnify Purchaser against any loss or expense arising out of any breach of the No Surreptitious Code Warranty. No limitation of liability, whether contractual or statutory, shall apply to a breach of this warranty.
I. INSURANCE:
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1. General Requirements: Vendor shall, at their own expense, obtain and keep in force insurance as follows until completion of the contract. Within fifteen (15) calendar days of receipt of notice of award, the Vendor shall furnish evidence in the form of a Certificate of Insurance satisfactory to the state that insurance, in the following kinds and minimum amounts has been secured. Failure to provide proof of insurance, as required, will result in contract cancellation.
Certificate of Insurance shall be sent to the Purchasing Office of Evergreen.
Vendor shall include all subcontractors as insured under all required insurance policies, or shall furnish separate Certificates of Insurance and endorsements for each subcontractor. Subcontractor(s) must comply fully with all insurance requirements stated herein. Failure of subcontractor(s) to comply with insurance requirements does not limit Vendor’s liability or responsibility.
All insurance provided in compliance with this contract shall be primary as to any other insurance or self-insurance programs afforded to or maintained by State.
2. Specific Requirements:
a) Employers Liability (Stop Gap): The Vendor will at all times comply with all applicable workers’ compensation, occupational disease, and occupational health and safety laws, statutes, and regulations to the full extent applicable and will maintain Employers Liability insurance with a limit of no less than $1,000,000.00. Evergreen will not be held responsible in any way for claims filed by the Vendor or their employees for services performed under the terms of this contract.
b) Commercial General Liability Insurance: The Vendor shall at all times during the term of this contract, carry and maintain commercial general liability insurance and if necessary, commercial umbrella insurance for bodily injury and property damage arising out of services provided under this contract. This insurance shall cover such claims as may be caused by any act, omission, or negligence of the Vendor or its officers, agents, representatives, assigns, or servants.
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The insurance shall also cover bodily injury, including disease, illness, and death and property damage arising out of the Vendor’s premises/operations, independent contractors, products/completed operations, personal injury and advertising injury, and contractual liability (including the tort liability of another assumed in a business contract), and contain separation of insureds (cross liability) conditions.
Vendor waives all rights against Evergreen for the recovery of damages to the extent they are covered by general liability or umbrella insurance.
The limits of liability insurance shall not be less than as follows:Each Occurrence $1,000,000General Aggregate Limits(other than products-completed operations)
$2,000,000
Products-Completed Operations Limit $2,000,000Personal and Advertising Injury Limit $1,000,000Fire Damage Limit (any one fire) $ 50,000Medical Expense Limit (any one person) $ 5,000
c) Business Auto Policy (BAP):
In the event that services delivered pursuant to this contract involve the use of vehicles, or the transportation of clients, automobile liability insurance shall be required. The coverage provided shall protect against claims for bodily injury, including illness, disease and death; and property damage caused by an occurrence arising out of or in consequence of the performance of this service by the Vendor, subcontractor, or anyone employed by either.
Vendor shall maintain business auto liability and, if necessary, commercial umbrella liability insurance with a combined single limit not less than $1,000,000 per occurrence. The business auto liability shall include Hired and Non-Owned coverage.
Vendor waives all rights against Evergreen for the recovery of damages to the extent they are covered by business auto liability or commercial umbrella liability insurance.
d) Additional Provisions : Above insurance policies (b through d) shall include the following provisions:(1) Additional Insured:
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The Evergreen State College and all authorized contract users shall be named as an additional insured on all general liability, umbrella, excess, and property insurance policies. All policies shall be primary over any other valid and collectable insurance.
Notice of policy(ies) cancellation/non-renewal: For insurers subject to RCW 48.18 (Admitted and regulated by the Washington State Insurance Commissioner) a written notice shall be given to Evergreen forty-five (45) calendar days prior to cancellation or any material change to the policy(ies) as it relates to this contract.
For insurers subject to RCW 48.15 (Surplus Lines) a written notice shall be given to Evergreen twenty (20) calendar days prior to cancellation or any material change to the policy(ies) as it relates to this contract.
If cancellation on any policy is due to non-payment of premium, Evergreen shall be given a written notice ten (10) calendar days prior to cancellation.
(2) Identification:
Policy(ies) and Certificates of Insurance must reference Evergreen’s bid/contract number.
(3) Insurance Carrier Rating:
The insurance required above shall be issued by an insurance company authorized to do business within the State of Washington. Insurance is to be placed with a carrier that has a rating of A- Class VII or better in the most recently published edition of Best’s Reports. Any exception must be reviewed and approved by Evergreen’s Risk Manager, or the Risk Manager for the State of Washington, by submitting a copy of the contract and evidence of insurance before contract commencement. If an insurer is not admitted, all insurance policies and procedures for issuing the insurance policies must comply with Chapter 48.15 RCW and 284-15 WAC.
(4) Excess Coverage: The limits of all insurance required to be provided by the Vendor shall be no less than the minimum amounts specified. However, coverage in the amounts of these minimum limits shall not be construed to relieve the Vendor from liability in excess of such limits.
J. DEFECTIVE OR UNAUTHORIZED WORK
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Evergreen reserves its right to withhold payment from the Vendor for any defective or unauthorized work. Defective or unauthorized work includes, without limitation: work and materials that do not conform to the requirements of this agreement; and extra work and materials furnished without Evergreen’s written approval. If the Vendor is unable, for any reason, to satisfactorily complete any portion of the work, Evergreen may complete the work by contract or otherwise, and the Vendor shall be liable to Evergreen for any additional costs incurred by Evergreen. “Additional costs” shall mean all reasonable costs, including legal costs and attorney fees, incurred by Evergreen beyond the maximum contract price. Evergreen further reserves its right to deduct the cost to complete the contract work, including any Additional Costs, from any and all amounts due or to become due the Vendor.
K. INDEPENDENT CONTRACTORThe parties intend that an Independent Contractor – Employer Relationship will be created by this agreement, Evergreen being interested only in the results obtained under this agreement.
L. TERMINATIONEvergreen may terminate this agreement for good cause. “Good cause” shall include, without limitation, any one or more of the following events:
1. The Vendor’s refusal or failure to supply a sufficient number of properly skilled workers or proper materials for completion of the contract work.2. The Vendor’s failure to make full and prompt payment to sub-vendors or for material or labor.3. The Vendor’s failure to comply with federal, state, or local laws, rules, or regulations.4. The Vendor’s filing or bankruptcy or becoming adjudged bankrupt.5. The Vendor’s failure to comply with any terms and conditions of this agreement.6. Failure of the Vendor or its product(s) to perform as advertised and/or claimed in the response to this RFP.
If Evergreen terminates this agreement for good cause, the Vendor shall not receive any further monies due under this agreement until the contract work is completed. Evergreen reserves the right, upon termination of this agreement, to pursue negotiations with the Vendor who scored second best in the evaluation of this RFP.
Evergreen reserves the right to terminate the contract for Lack of Funds of Evergreen. Lack of funds shall be construed to mean when Evergreen, in the judgment of its Chief Financial Officer, determines that it cannot continue the funding of its contract services without undue hardship to Evergreen.
Termination of contract services will be rendered if it is construed by Evergreen to be in its best interests for serving its students, faculty, and staff.
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M. CHANGESEvergreen may issue a written change order for any change in the contract work during the performance of this agreement. If the Vendor determines, for any reason, that a change order is necessary, the Vendor must submit a written change order request to an authorized agent of Evergreen within fourteen (14) days of the date the Vendor knew or should have known of the facts and events giving rise to the requested change. If Evergreen determines that the change increases or decreases the Vendor’s costs or time for performance, Evergreen will make an equitable adjustment. Evergreen will attempt, in good faith, to reach agreement with the Vendor on all equitable adjustments. However, if the parties are unable to agree Evergreen will determine the equitable adjustment as it deems appropriate. The Vendor shall proceed with the change order work upon receiving a written change order from Evergreen. If the Vendor fails to require a change order within the time allowed, the Vendor waives its right to make any claim or submit subsequent change order requests for that portion of the contract work.
N. WARRANTYThe Vendor shall correct all defects in workmanship or materials within the warranty period provided by the Vendor. The Vendor shall begin to correct any defects within the time frames promised by the Vendor, beginning from the Vendor’s receipt of notice from Evergreen of the defect. If the Vendor does not promptly accomplish the corrections, Evergreen may complete the corrections and the Vendor shall pay all costs incurred by Evergreen in order to accomplish the correction.
O. MISCELLANEOUS1. Compliance with Laws Vendor shall comply with all federal, state, and local laws, rules, and regulations throughout every aspect in the performance of this agreement.2. Nondiscrimination. In the hiring of employees for the performance of work under this agreement the Vendor, its subcontractors, or any person acting on behalf of the Vendor shall not, by reason of race, religion, sexual orientation, color, sex, national origin, or the presence of any sensory, mental, or physical disability, discriminate against any person who is qualified and available to perform the work to which the employment relates.3. Work Performed at Vendor’s Risk. Vendor shall take all precautions necessary and shall be responsible for the safety of its employees, agents, and subcontractors in the performance of this agreement. All work shall be done at the Vendor’s own risk, and the Vendor shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work.4. Non-waiver of Breach . The failure of Evergreen to insist upon strict performance of any of the terms and rights contained herein, or to exercise any option herein conferred in one or more instances, shall not be construed to
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be a waiver or relinquishment of those terms or rights and they shall remain in full force and effect.5. Governing Law . This agreement shall be governed and construed in accordance with the laws of the State of Washington. If any dispute arises between Evergreen and the Vendor under any of the provisions of this agreement, resolution of that dispute shall be available only through the jurisdiction, venue, and rules of the Thurston County Superior Court, Thurston County, Olympia, Washington.6. Attorney’s Fees . To the extent not consistent with RCW 39.04.240, in any claim or lawsuit for damages arising from the parties’ performance of this agreement, each party shall be responsible for payment of its own legal costs and attorney’s fees incurred in defending or bringing such claim or lawsuit; however, nothing in this subsection shall limit the Evergreen’s right to indemnification under this agreement.7. Modification . No waiver, alteration, or modification of any of the provisions of this agreement shall be binding unless in writing and signed by a duly authorized representative of Evergreen and Vendor.8. Severability. If any one or more sections, sub-sections, or sentences of this agreement are held to be unconstitutional or invalid, that decision shall not affect the validity of the remaining portion of this agreement and the remainder shall remain in full force and effect.
P. VOLUNTARY NUMERICAL MWBE PARTICIPATION GOALS HAVE BEEN ESTABLISHED FOR THIS BID.
Minority Business Enterprises: (MBE’s): 10% and Woman’s Business Enterprises (WBE’s): 8%
These goals are voluntary, but achievement of the goals is encouraged. However, unless required by federal statutes, regulations, grants, or contract terms referenced in the contract documents, no preference will be included in the evaluation of bids/proposals, no minimum level of MWBE participation shall be required as a condition for receiving an award or completion of the contract work, and bids/proposals will not be rejected or considered non-responsive if they do not include MWBE participation. Bidders may contact OMWBE at 360-753-9693 to obtain information on certified firms for potential subcontracting arrangements.
Q. RECORDS, DOCUMENTS, AND REPORTSThe Contractor shall maintain complete financial records relating to this contract and the services rendered including all books, records, documents, magnetic media, receipts, invoices and other evidence relating to this contract and performance of the services described herein, including but not limited to: accounting procedures and practices which sufficiently and properly reflect all direct and indirect costs of any nature expended in the performance of this contract. Contractor shall retain such records for a period of six (6) years following the date of final payment. At no additional cost, these records
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including materials generated under the contract, shall be subject at all reasonable times to inspection, review, or audit by Evergreen, the Office of the State Auditor, and federal and state officials so authorized by law, rule, regulation, or agreement.
If any litigation, claim or audit is started before the expiration of the six (6) year period, the records shall be retained until all litigation, claims, or audit findings involving the records have been resolved.
R. PAYMENT Washington State law prohibits Evergreen from making payment for goods or services that have not been received. Therefore, Evergreen cannot make any advanced payments.
TERMS AND CONDITIONS SPECIFIC TO WIPHE COOPERATIVE PURCHASES
Definitions:WIPHE: Washington Institutions of Public Higher Education who are signatories to the Interlocal Agreement for Cooperative Purchasing.
Lead Institution: The WIPHE member that has volunteered to conduct the solicitation/negotiation process on behalf of the WIPHE members (Evergreen).
Committed Participants: Those WIPHE members who respond affirmatively to the Lead Institution's request for participation, and whose estimated purchase volume will be included in the solicitation/negotiation documents. At this time there are no committed WIPHE participants other than Evergreen.
Potential Participants: All other WIPHE member institutions who are not committed participants. Potential participants may choose to use any contract awarded, provided the contractor will accept their participation.
No Exclusivity Implied: This RFP provides no exclusive arrangements for obtaining software by any WIPHE Institution which has not specifically been identified as a committed participant. Potential Participants may purchase software through their own processes for competitive procurement or via other cooperative purchasing arrangements at their disposal.
Contract Administration:Any resulting contract with another WIPHE institution shall be administered by the lead institution, the committed participants, and the potential participants in the following manner:
The terms and conditions contained in their entirety throughout this solicitation may not be altered unless provided in writing by the lead institution.
WIPHE Institutions may, at their sole option, individually negotiate only operational provisions specific to the needs of their institution. These would include agreed arrangements for such operational provisions as delivery, installation, service, and invoicing processes. Such negotiated changes shall not be binding on any other institution. These changes may, however, bind the
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vendor to providing similar arrangements to the other institutions pursuant to any “Best Customer” provisions of this document.
WIPHE Institutions shall individually be responsible for their obligations to the awarded vendor pursuant to any purchase associated with this agreement. Likewise, the vendor shall be responsible for their obligations to the WIPHE Institutions pursuant to this agreement. All reasonable efforts will be made by the vendor and the WIPHE Institutions to satisfy any breach of these obligations, or, disagreements arising between the individual WIPHE Institution and the vendor. Resolution may take several forms, including cancellation of specific arrangements between the vendor and the institution. Resolutions of any nature shall not have a binding effect on any other institution.
In the event a breach or disagreement cannot be resolved between the institution(s) and the vendor, either party may notify the lead institution and request the lead institution satisfy the dispute in accordance with this agreement, including any dispute resolution process identified within.
The lead institution may at any time act on behalf of any WIPHE Institution in resolving breach of contract or to settling disputes in accordance with this agreement.
Contract Documents: The vendor shall make copies of any contract resulting from this process available in its entirety to any WIPHE Institution expressing an interest in purchasing the software and/or services. The lead institution and the vendor agree that a summary of this agreement, including a phone number by which interested agencies may contact the vendor, may be placed on a public access electronic home page, bulletin board, fax on demand network, or other form of accessible medium.
THE EVERGREEN STATE COLLEGE STANDARD TERMS AND CONDITIONS
The following terms and conditions will be made a part of the Purchase Order contract and Vendor by his acceptance of an order agrees thereto:
II. CHANGES: No alteration in any of the terms, conditions, deliver, price, quality, quantities, or specifications of this order/contract will be effective without prior written consent of the Purchaser’s Purchasing Office.
III. PACKING: No charges will be allowed for special handling, packing, wrapping, bags, containers, reels, etc., unless otherwise specified herein.
IV. DELIVERY: For any exception to the delivery date as specified on this purchase/contract, Vendor shall give prior notification and obtain approval thereto from the Purchaser’s Purchasing Office. With respect to delivery under the contract, time is of the essence and is subject to termination for failure to deliver on time. The acceptance by Purchaser of late performance with or without objection or reservation shall not waive the right to claim damage for such breach nor constitute a waiver of the requirements for the timely performance of any obligation remaining to be performed by Vendor.
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V. PAYMENTS, CASH DISCOUNT, LATE PAYMENT CHARGES: Invoices will not be processed for payment nor will the period of computation for cash discount commence until receipt of a properly completed invoice or invoiced items are received, whichever is later. If an adjustment in payment is necessary due to damage or dispute, the cash discount period shall commence on date final approval for payment is authorized. Under Chapter 68 Laws of 1981, if purchaser fails to make timely payment, vendor may invoice for a minimum of one dollar or one percent per month on the amount overdue. Payment shall not be considered late if a check or warrant is available or mailed within the time specified, or if no terms are specified within thirty days. Normally payments to vendors will be remitted by mail. The Purchaser shall not honor drafts, nor accept goods on a sight draft basis.
VI. SHIPPING INSTRUCTIONS: unless otherwise specified, all goods are to be shipped prepaid, FOB Destination. Where specific authorization is granted to ship goods FOB Shipping Point, Vendor agrees to prepay all shipping charges, route cheapest common carrier, and to bill Purchaser as a separate item on the invoice for said charges, less federal transportation tax. Each invoice for shipping charges shall contain the original or a copy of the bill indicating that the payment for shipping has been made. It is also agreed that Purchaser reserves the right to refuse any COD shipments.
VII. REJECTION: All goods or materials purchased herein are subject to approval by Purchaser. Any rejection of goods or material resulting because of nonconformity to the terms and specifications of the contract, whether held by Purchaser, or returned, will be at Vendor’s risk and expense.
VIII. IDENTIFICATION: All invoices, packing lists, packages, shipping notices, instruction manuals, and other written documents affecting this contract shall contain the applicable contract number. Packing lists shall be enclosed in each and every box or package shipped pursuant to this contract, indicating the content therein. Invoices will not be processed for payment until all items invoiced are received.
IX. INFRINGEMENTS: Vendor agrees to protect and save harmless Purchaser against all claims for patent, trademark, copyright, or franchising infringement arising from the purchased, installation, or use of material ordered on this contract, and to assume all expense and damage arising from such claims.
X. NON-WAIVER BY ACCEPTANCE OF VARIATION: No provision of this contract, or the right to receive seasonable performance of any act called for by the terms shall be deemed waived by a waiver by Purchaser of a breach thereof as to any particular transaction or occurrence.
XI. WARRANTIES: Vendor warrants articles supplied under this contract to conform to specifications herein and are fit for the purpose for which such goods are ordinarily employed; except if stated in a Special Condition, the material must then fit that particular purpose.
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Vendor and Purchaser agree that this contract does not exclude, or in any way limit, other warranties provided for in this agreement or by law.
XII. CASH DISCOUNT: In the event that Purchaser is entitled to a cash discount, the period of computations will commence on the date of delivery, or receipt of a correctly completed invoice, whichever is later. If an adjustment in payment is necessary due to damage, the cash discount period shall commence on the date final approval for payment is authorized. If a discount is made part of the contract, but the invoice does not reflect the existence of a cash discount, Purchaser is entitled to a cash discount with the period commencing on the date it is determined by Purchaser that a cash discount applies.
XIII. TAXES: Unless otherwise indicated, Purchaser agrees to pay all State of Washington sales or use tax. No charge by Vendor shall be made for federal excise taxes, and Purchaser agrees to furnish Vendor, upon acceptance of articles supplied under this contract, with an exemption certificate.
XIV. LIENS, CLAIMS, AND ENCUMBRANCES: Vendor warrants and represents that all the goods and material ordered herein are free and clear of all liens, claims or encumbrances of any kind.
XV. RISK OF LOSS: Regardless of FOB Point, Vendor agrees to bear all risks of loss, injury or destruction of goods and materials ordered herein which occur prior to delivery; and such loss, injury of destruction shall not release Vendor from any obligation hereunder.
XVI. SAVE HARMLESS: Vendor shall protect, indemnify, and save Purchaser harmless from and against any damage, cost or liability for any or all injuries to persons or property arising from acts or omissions of Vendor, his employees, agents, or subcontractors, howsoever caused.
XVII. PRICES: If price is not stated on this order, it is agreed that the goods shall be billed at the price last quoted or paid, or the prevailing market price, whichever is lower.
XVIII. TERMINATION: In the event of a breach by Vendor of any of the provisions of this contract, Purchaser reserves the right to cancel and terminate this contract forthwith upon giving oral or written notice to Vendor. Vendor shall be liable for damages suffered by Purchaser resulting from Vendor’s breach of contract.
XIX. QUALITY STANDARDS: Special brands, when named, are to indicate the standard of quality, performance or use desired. Bids on Vendor’s equal will be considered provided Vendor specifies brand, model, and the necessary descriptive literature. In the event Purchaser elects to contract for an alternate purported to be an equal by the bidder, the acceptance of the item will be conditioned on Purchaser’s inspection and testing after receipt. If, in the sole judgment of Purchaser, the item is determined not to be an equal, the material shall be returned at the Vendor’s expense and the contract terminated
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XX. ACCEPTANCE: This order expressly limits acceptance to the terms and conditions stated herein. All additional or different terms proposed by vendor are objected to and are hereby rejected, unless otherwise provided in writing by purchaser’s purchasing office.
XXI. NONDISCRIMINATION: Vendor agrees not to discriminate against any client, employee or applicant for employment or for services because of race, creed, color, national origin, sex or age with regard to but not limited to the following: Employment upgrading, demotion or transfer, recruitment or recruitment advertising; lay-off or termination; rates of pay or other forms of compensation; selection for training. It is further understood that any Vendor who is in violation of this clause shall be barred forthwith from receiving awards of any purchase order from Purchaser, unless a satisfactory showing is made that discriminatory practices have been terminated and that a recurrence of such acts is unlikely.
XXII. SAFETY AND HEALTH REQUIREMENTS: Vendor agrees to comply with the conditions of the Federal Occupational Safety and Health Act of 1970 (OSHA), the Washington Industrial Safety and Health Act of 1973 (WISHA), and the standards and regulations issued thereunder and certifies that all items furnished and purchased under this order will conform to and comply with said standards and regulations. Vendor further agrees to indemnify and hold harmless Purchaser from all damages assessed against Purchaser as a result of Vendor’s failure to comply with the Acts and the standards issued thereunder and for failure of the items furnished under this order to so comply.
XXIII. LAWS OF THE STATE OF WASHINGTON: The laws of the State of Washington shall govern this order and the venue of any action brought hereunder shall be in the Superior Court, County of Thurston, State of Washington.
XXIV. AFFIRMATIVE ACTION FOR HANDICAPPED: Vendor certifies that he will comply with Section 503 of the Vocational Rehabilitation Act of 1973.
XXV. AFFIRMATIVE ACTION FOR VETERANS: Vendor certifies that he will comply with Section 2012 of the Vietnam era Veterans Readjustment Act of 1974.
XXVI. ANTI-TRUST ASSIGNMENT: Vendor and Purchaser recognize that actual economic practice over-charges resulting from anti-trust violations are, in fact, usually borne by the Purchaser. Therefore, Vendor hereby assigns to Purchaser any and all claims for such over-charges as to goods and materials purchased in connection with this order or contract, except as to over-charges which result from anti-trust violations commencing after the price is established under this order or contract and which are not passed on to the Purchaser under an escalation clause.
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Appendix CSample Contract
Contract Number RFP IT211for
Web Content Management Systembetween the
The Evergreen State Collegeand
{Vendor}
Effective Date: __________________________________
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Table of Contents
1. DEFINITION OF TERMS59
Contract Term
2. TERM (REQUIRED) 62
3. SURVIVORSHIP (REQUIRED) 63
Pricing, Invoice And Payment
4. PRICING (REQUIRED) 63
5. ADVANCE PAYMENT PROHIBITED (REQUIRED) 64
6. TAXES 64
7. INVOICE AND PAYMENT (REQUIRED) 64
8. OVERPAYMENTS TO VENDOR 65
Software License
9. LICENSE GRANT (REQUIRED) 65
10. SOFTWARE OWNERSHIP (REQUIRED) 66
11. OWNERSHIP/RIGHTS IN DATA (REQUIRED) 66
12. SOFTWARE SPECIFICATIONS 67
13. COMPLIANCE WITH STANDARDS 67
14. DATE WARRANTY (REQUIRED)67
15. PHYSICAL MEDIA WARRANTY ERROR! BOOKMARK NOT DEFINED.
16. NO SURREPTITIOUS CODE WARRANTY (REQUIRED) 68
17. REAUTHORIZATION CODE REQUIRED 68
18. SOFTWARE DOCUMENTATION68
Vendor’s Responsibilities
19. SHIPPING AND RISK OF LOSS 69
20. DELIVERY 69
21. SITE SECURITY 69
22. INSTALLATION 69
23. STANDARD OF PERFORMANCE AND ACCEPTANCE ERROR! BOOKMARK NOT DEFINED.
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24. SOFTWARE WARRANTY 69
25. SOFTWARE UPGRADES AND ENHANCEMENTS 70
26. SOFTWARE MAINTENANCE AND SUPPORT SERVICES 70
27. VENDOR COMMITMENTS, WARRANTIES AND REPRESENTATIONS (REQUIRED) 71
28. TRAINING 72
29. MINORITY AND WOMEN’S BUSINESS ENTERPRISE (MWBE) PARTICIPATIONERROR! BOOKMARK NOT DEFINED.
30. PROTECTION OF PURCHASER’S CONFIDENTIAL INFORMATION (REQUIRED) 73
Contract Administration
31. LEGAL NOTICES 73
32. VENDOR ACCOUNT MANAGER74
33. PURCHASER PROJECT MANAGER 74
34. SECTION HEADINGS, INCORPORATED DOCUMENTS AND ORDER OF PRECEDENCE (REQUIRED) 75
35. ENTIRE AGREEMENT (REQUIRED) 75
36. AUTHORITY FOR MODIFICATIONS AND AMENDMENTS 76
37. INDEPENDENT STATUS OF VENDOR (REQUIRED) 76
38. GOVERNING LAW (REQUIRED) 76
39. SUBCONTRACTORS 76
40. ASSIGNMENT 77
41. PUBLICITY (REQUIRED) 77
42. REVIEW OF VENDOR’S RECORDS (REQUIRED) 77
General Provisions
43. PATENT AND COPYRIGHT INDEMNIFICATION (REQUIRED) 78
44. SAVE HARMLESS (REQUIRED) 79
45. INSURANCE 79
46. INDUSTRIAL INSURANCE COVERAGE (REQUIRED) 80
47. LICENSING STANDARDS 80
48. OSHA/WISHA 80
49. UNIFORM COMMERCIAL CODE (UCC) APPLICABILITY 81
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50. ANTITRUST VIOLATIONS 81
51. COMPLIANCE WITH CIVIL RIGHTS LAWS (REQUIRED) 81
52. SEVERABILITY (REQUIRED) 81
53. WAIVER (REQUIRED) 81
54. TREATMENT OF ASSETS 82
55. VENDOR’S PROPRIETARY INFORMATION (REQUIRED) 82
Disputes and Remedies
56. DISPUTES (REQUIRED) 82
57. ATTORNEYS’ FEES AND COSTS 83
58. NON-EXCLUSIVE REMEDIES 84
59. FAILURE TO PERFORM84
60. LIMITATION OF LIABILITY (REQUIRED) 85
Contract Termination
61. TERMINATION FOR DEFAULT (REQUIRED) 85
62. TERMINATION FOR CONVENIENCE (REQUIRED) 86
63. TERMINATION FOR WITHDRAWAL OF AUTHORITY 86
64. TERMINATION FOR NON-ALLOCATION OF FUNDS 86
65. TERMINATION FOR CONFLICT OF INTEREST 86
66. TERMINATION PROCEDURE 87
67. COVENANT AGAINST CONTINGENT FEES 87
Contract Execution
68. AUTHORITY TO BIND 88
69. COUNTERPARTS 88
SchedulesSchedule A: Authorized Product and Price List
ExhibitsExhibit A: Evergreen IT# Request for Proposal for NameExhibit B: Vendor’s Response
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CONTRACT NUMBER RFP IT211for
Web Content Management System
PARTIES
This Contract (“Contract”) is entered into by and between the state of Washington, acting by and through The Evergreen State College (“Evergreen”), an agency of Washington State government located at Olympia, WA, and [Vendor] a [corporation/sole proprietor/or other business form] licensed to conduct business in the state of Washington (“Vendor”) located at [Vendor address] for the purpose of purchasing Software licenses and related products for Web Content Management System (CMS).
RECITALS
The state of Washington, acting by and through Evergreen, issued a Request for Proposal IT# dated February 4, 2003, (Exhibit A) for the purpose of purchasing Software licenses and related products for CMS in accordance with its authority under chapter 43.105 RCW.
[Vendor] submitted a timely Response to Evergreen’s IT211 (Exhibit B).
Evergreen evaluated all properly submitted Responses to the above-referenced IT211 and has identified [Vendor] as the apparently successful Vendor.
Evergreen has determined that entering into a Contract with [Vendor] will meet Purchaser’s needs and will be in Purchaser’s best interest.
NOW THEREFORE, Purchaser awards to [Vendor] this Software License Contract, the terms and conditions of which shall govern Vendor’s furnishing to Evergreen the CMS and Services. This Contract is not for personal use.
IN CONSIDERATION of the mutual promises as hereinafter set forth, the parties agree as follows:
DEFINITION OF TERMS
The following terms as used throughout this Contract shall have the meanings set forth below.
“Acceptance” shall mean that the Software has passed its Acceptance Testing and shall be formalized in a written notice from Purchaser to Vendor; or, if there is no Acceptance Testing, Acceptance shall occur when the Products are delivered.
“Acceptance Date” shall mean the date upon which Purchaser Accepts the Software as provided in the section titled Standard of Performance and Acceptance.
“Acceptance Testing” shall mean the process for ascertaining that the Software meets the standards set forth in the section titled Standard of Performance and Acceptance, prior to Acceptance by the Purchaser.
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“Business Days and Hours” shall mean Monday through Friday, 8:00 a.m. to 5:00 p.m., Pacific Time, except for holidays observed by the state of Washington.
“Confidential Information” shall mean information that is exempt from disclosure to the public or other unauthorized persons under either chapter 42.17 RCW or other state or federal statutes. Confidential Information includes, but is not limited to, names, addresses, Social Security numbers, e-mail addresses, telephone numbers, financial profiles, credit card information, driver’s license numbers, medical data, law enforcement records, agency source code or object code, or agency security data.
“Contract” shall mean this document, all schedules and exhibits, and all amendments hereto.
“Delivery Date” shall mean the date by which the Products ordered hereunder must be delivered.
“The Evergreen State College (Evergreen)” shall mean the same as Purchaser.
“Effective Date” shall mean the first date this Contract is in full force and effect. It may be a specific date agreed to by the parties; or, if not so specified, the date of the last signature of a party to this Contract.
“Exhibit A” shall mean the IT211.
“Exhibit B” shall mean [Vendor]’s Response.
“Help Desk” shall mean a service provided by Vendor for the support of Vendor’s Products. Purchaser shall report warranty or maintenance problems to Vendor’s Help Desk for initial troubleshooting and possible resolution of the problems or for the initiation of repair or replacement services.
“Installation Date” shall mean the date by which all Software ordered hereunder shall be in place, in good working order.
“License” shall mean the rights granted to Purchaser to use the Software that is the subject of this Contract.
“Order” or “Order Document” shall mean any official document and attachments thereto specifying the Software and/or Services to be licensed or purchased from Vendor under this Contract.
“Price” shall mean charges, costs, rates, and/or fees charged for the Products and Services under this Contract and shall be paid in United States dollars.
“Product(s)” shall mean any Vendor-supplied equipment, Software, and documentation.
“Proprietary Information” shall mean information owned by Vendor to which Vendor claims a protectable interest under law. Proprietary Information includes, but is not limited to, information protected by copyright, patent, trademark, or trade secret laws.
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“Purchaser” shall mean the state of Washington, The Evergreen State College, any division, section, office, unit or other entity of Purchaser or any of the officers or other officials lawfully representing Purchaser.
“Purchaser Project Manager” shall mean the person designated by Purchaser who is assigned as the primary contact person whom Vendor’s Account Manager shall work with for the duration of this Contract and as further defined in the section titled Purchaser Project Manager.
“Purchaser Contract Administrator” shall mean that person designated by Purchaser to administer this Contract on behalf of Purchaser.
“Purchaser Contracting Officer” shall mean Kathleen Haskett, or the person to whom signature authority has been delegated in writing. This term includes, except as otherwise provided in this Contract, an authorized representative of the Purchaser Contracting Officer acting within the limits of his/her authority.
“RCW” shall mean the Revised Code of Washington.
“RFP IT211” shall mean the Request for Proposal used as a solicitation document to establish this Contract, including all its amendments and modifications, Exhibit A hereto.
“Response” shall mean Vendor’s Response to Purchaser’s IT211 for CMS, Exhibit B hereto.
“Schedule A: Authorized Product and Price List” shall mean the attachment to this Contract that identifies the authorized Software and Services and Prices available under this contract.
“Services” shall mean those Services provided under this Contract and related to the Software License(s) being purchased that are appropriate to the scope of this Contract and includes such things as installation Services, maintenance, training, etc.
“Software” shall mean the object code version of computer programs licensed pursuant to this Contract. Software also means the source code version, where provided by Vendor. Embedded code, firmware, internal code, microcode, and any other term referring to software residing in the equipment that is necessary for the proper operation of the equipment is not included in this definition of Software. Software includes all prior, current, and future versions of the Software and all maintenance updates and error corrections.
“Specifications” shall mean the technical and other specifications set forth in the IT211, Exhibit A, any additional specifications set forth in Vendor’s Response, Exhibit B, and the specifications set forth in Vendor’s Product documentation, whether or not Vendor produces such documentation before or after this Contract’s Effective Date.
“Standard of Performance” shall mean the criteria that must be met before Software Acceptance, as set forth in the section titled Standard of Performance and Acceptance. The Standard of Performance also applies to all additional, replacement or substitute Software and Software that is modified by or with the written approval of Vendor after having been accepted.
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“Subcontractor” shall mean one not in the employment of Vendor, who is performing all or part of the business activities under this Contract under a separate contract with Vendor. The term “Subcontractor” means Subcontractor(s) of any tier.
“Vendor” shall mean [Vendor], its employees and agents. Vendor also includes any firm, provider, organization, individual, or other entity performing the business activities under this Contract. It shall also include any Subcontractor retained by Vendor as permitted under the terms of this Contract.
“Vendor Account Manager” shall mean a representative of Vendor who is assigned as the primary contact person whom the Purchaser Project Manager shall work with for the duration of this Contract and as further defined in the section titled Vendor Account Manager.
“Vendor Contracting Officer” shall mean Vice President, Sales and Marketing, or the person to whom signature authority has been delegated in writing. This term includes, except as otherwise provided in this Contract, an authorized representative of Vendor Contracting Officer acting within the limits of his/her authority.
“Work Product” shall mean data and products produced under this Contract including but not limited to, discoveries, formulae, ideas, improvements, inventions, methods, models, processes, techniques, findings, conclusions, recommendations, reports, designs, plans, diagrams, drawings, Software, databases, documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes, and/or sound reproductions, to the extent provided by law.
Contract Term TERM
Term of Contract for Licensed Software Purchases
This Contract’s initial term shall be three (3) years, commencing upon the Effective Date.
This Contract’s term shall be automatically extended for three (3) additional one (1) year terms unless Purchaser terminates by giving written notice of its decision not to extend to Vendor not less than thirty (30) calendar days prior to the then-current Contract term’s expiration. No change in terms and conditions shall be permitted during these extensions unless specifically agreed to in writing.
License Term—see License Grant
Term of Contract for Maintenance and Support
This Contract’s initial Software maintenance and support term shall be three (3) years, commencing the day following expiration of Vendor’s warranty for the Software.
This Contract’s Software maintenance and support term shall be automatically extended for additional one (1) year terms unless Purchaser terminates by giving written notice of its decision not to extend to Vendor not less than thirty (30) calendar days prior to the then-
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current Contract term’s expiration. No change in terms and conditions shall be permitted during these extensions unless specifically agreed to in writing. SURVIVORSHIP
All license and purchase transactions executed pursuant to the authority of this Contract shall be bound by all of the terms, conditions, Prices and Price discounts set forth herein, notwithstanding the expiration of the initial term of this Contract or any extension thereof. Further, the terms, conditions and warranties contained in this Contract that by their sense and context are intended to survive the completion of the performance, cancellation or termination of this Contract shall so survive. In addition, the terms of the sections titled Overpayments to Vendor; License Grant; Software Ownership; Ownership/Rights in Data; Date Warranty; No Surreptitious Codes Warranty; Vendor Commitments, Warranties and Representations; Protection of Purchaser’s Confidential Information; Section Headings, Incorporated Documents and Order of Precedence; Publicity; Review of Vendor’s Records; Patent and Copyright Indemnification; Vendor’s Proprietary Information; Disputes; and Limitation of Liability, and shall survive the termination of this Contract.
Pricing, Invoice and Payment PRICING
Vendor agrees to provide the Products and Services at the Prices set forth in schedule A. No other Prices shall be payable to Vendor for implementation of Vendor’s Response.
Upon expiration of Vendor-provided warranty as set forth in the section titled Software Warranty and upon election by Purchaser to receive maintenance and support Services from Vendor, Purchaser shall pay maintenance and support fees to Vendor at the Prices set forth in Schedule A.
Prices not to be increased during the first year of the Contract.
If Vendor reduces its Prices for any of the Software or Services during the term of this Contract, Purchaser shall have the immediate benefit of such lower Prices for new purchases. Vendor shall send notice to the Purchaser Contract Administrator with the reduced Prices upon request. At least sixty (60) calendar days before the end of the then-current term of this Contract, Vendor may propose license fees and Service rate increases by written notice to Purchaser Contract Administrator. Price adjustments will be taken into consideration by Purchaser Contract Administrator when determining whether to extend this Contract.
Purchaser shall reimburse Vendor for travel and other expenses as identified in this Contract, or as authorized in writing, in advance by Purchaser in accordance with the then-current rules and regulations set forth in the Washington State Administrative and Accounting Manual (http://www.ofm.wa.gov/policy/poltoc.htm). Vendor shall provide a detailed itemization of expenses, including description, amounts and dates, and receipts for amounts of fifty dollars ($50) or more when requesting reimbursement.
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ADVANCE PAYMENT PROHIBITED
No advance payment shall be made for the Software and Services furnished by Vendor pursuant to this Contract. Notwithstanding the above, maintenance and support payments, if any, may be made on an annual basis at the beginning of each twelve (12) month period. Reference: Revised Code of Washington Chapter 43.88.160 (5) (e).
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TAXES
Purchaser will pay sales and use taxes, if any, imposed on the Products and Services acquired hereunder. Vendor will pay all other taxes including, but not limited to, Washington Business and Occupation Tax, other taxes based on Vendor’s income or gross receipts, or personal property taxes levied or assessed on Vendor’s personal property. Purchaser, as an agency of Washington State government, is exempt from property tax.
Vendor shall complete registration with the Washington State Department of Revenue and be responsible for payment of all taxes due on payments made under this Contract.
INVOICE AND PAYMENT
Vendor will submit properly itemized invoices to Accounts Payable at Evergreen. Invoices shall provide and itemize, as applicable:
Purchaser Purchase Order number;
Vendor name, address, phone number, and Federal Tax Identification Number;
Description of Software, including quantity ordered;
Date(s) of delivery and/or date(s) of installation and set up;
Price for each item, or Vendor’s list Price for each item and applicable discounts;
Maintenance charges;
Net invoice Price for each item;
Applicable taxes;
Shipping costs;
Other applicable charges;
Total invoice Price; and
Payment terms including any available prompt payment discounts.
If expenses are invoiced, Vendor must provide a detailed itemization of those expenses that are reimbursable, including description, amounts and dates. Any single expense in the amount of fifty dollars ($50) or more must be accompanied by a receipt in order to receive reimbursement. (see subsection above)
Payments shall be due and payable thirty (30) calendar days after receipt of properly prepared invoices.
Purchaser shall pay maintenance and support charges on an annual basis, at the beginning of each one (1) year period, as authorized in RCW 43.88.160 (5) (e). Payment of maintenance service/support of less than one (1) month’s duration shall be prorated at 1/30th of the basic monthly maintenance charges for each calendar day.
Incorrect or incomplete invoices will be returned by Purchaser to Vendor for correction and reissue.
The Purchaser Purchase Order number must appear on all bills of lading, packages, and correspondence relating to this Contract.
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Purchaser shall not honor drafts, nor accept goods on a sight draft basis.
If Purchaser fails to make timely payment, Vendor may invoice Purchaser one percent (1%) per month on the amount overdue or a minimum of one dollar ($1). Payment will not be considered late if payment is deposited electronically in Vendor’s bank account or if a check or warrant is postmarked within thirty (30) calendar days of Acceptance of the Software or receipt of Vendor’s properly prepared invoice, whichever is later.
OVERPAYMENTS TO VENDOR
Vendor shall refund to Purchaser the full amount of any erroneous payment or overpayment under this Contract within thirty (30) days written notice. If Vendor fails to make timely refund, Purchaser may charge Vendor one percent (1%) per month on the amount due, until paid in full.
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Software License LICENSE GRANT
Vendor grants to Purchaser a non-exclusive, perpetual site-wide, irrevocable license to use the Software and related documentation according to the terms and conditions of this Contract.
Purchaser will not decompile or disassemble any Software provided under this Contract or modify Software that bears a copyright notice of any third party without the prior written consent of Vendor or Software owner.
Purchaser may copy each item of Software to multiple hard drives or network.
Purchaser will make and maintain no more than one archival copy of each item of Software, and each copy will contain all legends and notices and will be subject to the same conditions and restrictions as the original. Purchaser may also make copies of the Software in the course of routine backups of hard drive(s) for the purpose of recovery of hard drive contents. Purchaser may use backup or archival copies of the Software, without reinstallation or interruption of production copy(ies), for disaster recovery exercises at its disaster recovery site(s), without additional charge. Purchaser may make these backup or archival copies available to the disaster recovery site(s)’ employees who require use of the Software in order to assist Purchaser with disaster recovery exercises. Purchaser agrees that production use of the Software at the disaster recovery site(s) shall be limited to times when Purchaser’s facilities, or any portion thereof, are inoperable due to emergency situations.
Freedom of Use. Vendor understands that Purchaser may provide information processing services to other users that are agencies of state government and other tax-supported entities. Vendor further understands that Purchaser or other users that are agencies of state government and other tax-supported entities may provide services to the public through Internet applications. Software delivered hereunder may be used in the delivery of these services. Vendor acknowledges and agrees that such use of Software products is acceptable under the licensing agreements contained herein.
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SOFTWARE OWNERSHIP
Vendor shall maintain all title, copyright, and other proprietary rights in the Software. Purchaser does not acquire any rights, express or implied, in the Software, other than those specified in this Contract. Vendor hereby warrants and represents to Purchaser that Vendor is the owner of the Software licensed hereunder or otherwise has the right to grant to Purchaser the licensed rights to the Software provided by Vendor through this Contract without violating any rights of any third party worldwide. Vendor represents and warrants that Vendor has the right to license the Software to Purchaser as provided in this Contract and that Purchaser’s use of the Software and documentation within the terms of this Contract will not infringe upon any copyright, patent, trademark, or other intellectual property right worldwide or violate any third party’s trade secret, contract, or confidentiality rights worldwide. Vendor represents and warrants that: (i) Vendor is not aware of any claim, investigation, litigation, action, suit or administrative or judicial proceeding pending or threatened based on claims that the Software infringes any patents, copyrights, or trade secrets of any third party, and (ii) that Vendor has no actual knowledge that the Software infringes upon any patents, copyrights, or trade secrets of any third party.
OWNERSHIP/RIGHTS IN DATA
Purchaser and Vendor agree that all data and work products (collectively called “Work Product”) produced pursuant to this Contract shall be considered work made for hire under the U.S. Copyright Act, 17 U.S.C. §101 et seq, and shall be owned by Purchaser. Vendor is hereby commissioned to create the Work Product. Work Product includes, but is not limited to, discoveries, formulae, ideas, improvements, inventions, methods, models, processes, techniques, findings, conclusions, recommendations, reports, designs, plans, diagrams, drawings, Software, databases, documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes, and/or sound reproductions, to the extent provided by law. Ownership includes the right to copyright, patent, register and the ability to transfer these rights and all information used to formulate such Work Product.
If for any reason the Work Product would not be considered a work made for hire under applicable law, Vendor assigns and transfers to Purchaser the entire right, title and interest in and to all rights in the Work Product and any registrations and copyright applications relating thereto and any renewals and extensions thereof.
Vendor shall execute all documents and perform such other proper acts as Purchaser may deem necessary to secure for Purchaser the rights pursuant to this section.
Vendor shall not use or in any manner disseminate any Work Product to any third party, or represent in any way Vendor ownership in any Work Product, without the prior written permission of Purchaser. Vendor shall take all reasonable steps necessary to ensure that its agents, employees, or Subcontractors shall not copy or disclose, transmit or perform any Work Product or any portion thereof, in any form, to any third party.
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Material that is delivered under this Contract, but that does not originate therefrom (“Preexisting Material”), shall be transferred to Purchaser with a nonexclusive, royalty-free, irrevocable license to publish, translate, reproduce, deliver, perform, display, and dispose of such Preexisting Material, and to authorize others to do so except that such license shall be limited to the extent to which Vendor has a right to grant such a license. Vendor shall exert all reasonable effort to advise Purchaser at the time of delivery of Preexisting Material furnished under this Contract, of all known or potential infringements of publicity, privacy or of intellectual property contained therein and of any portion of such document which was not produced in the performance of this Contract. Vendor agrees to obtain, at its own expense, express written consent of the copyright holder for the inclusion of Preexisting Material. Purchaser shall receive prompt written notice of each notice or claim of copyright infringement or infringement of other intellectual property right worldwide received by Vendor with respect to any Preexisting Material delivered under this Contract. Purchaser shall have the right to modify or remove any restrictive markings placed upon the Preexisting Material by Vendor.
SOFTWARE SPECIFICATIONS
All Software will conform to its Specifications. Vendor warrants that the Products delivered hereunder shall perform in conformance with the Specifications.
COMPLIANCE WITH STANDARDS
Vendor represents that all Software and elements thereof, including but not limited to, documentation and source code, shall meet and be maintained by Vendor to conform to applicable industry standardsDATE WARRANTY
Vendor warrants that all Software provided under this Contract: (i) does not have a life expectancy limited by date or time format; (ii) will correctly record, store, process, and present calendar dates; (iii) will lose no functionality, data integrity, or performance with respect to any date; and (iv) will be interoperable with other software used by Purchaser that may deliver date records from the Software, or interact with date records of the Software (“Date Warranty”). In the event a Date Warranty problem is reported to Vendor by Purchaser and such problem remains unresolved after three (3) calendar days, at Purchaser’s discretion, Vendor shall send, at Vendor’s sole expense, at least one (1) qualified and knowledgeable representative to Purchaser’s premises. This representative will continue to address and work to remedy the failure, malfunction, defect, or nonconformity on Purchaser’s premises. This Date Warranty shall last perpetually. In the event of a breach of any of these representations and warranties, Vendor shall indemnify and hold harmless Purchaser from and against any and all harm, injury, damages, costs, and expenses incurred by Purchaser arising out of said breach.
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NO SURREPTITIOUS CODE WARRANTY
Vendor warrants to Purchaser that no licensed copy of the Software provided to Purchaser contains or will contain any Self-Help Code nor any Unauthorized Code as defined below. Vendor further warrants that Vendor will not introduce, via modem or otherwise, any code or mechanism that electronically notifies Vendor of any fact or event, or any key, node, lock, time-out, or other function, implemented by any type of means or under any circumstances, that may restrict Purchaser’s use of or access to any program, data, or equipment based on any type of limiting criteria, including frequency or duration of use for any copy of the Software provided to Purchaser under this Contract. The warranty is referred to in this Contract as the “No Surreptitious Code Warranty.”
As used in this Contract, “Self-Help Code” means any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of a person other than a licensee of the Software. Self-Help Code does not include software routines in a computer program, if any, designed to permit an owner of the computer program (or other person acting by authority of the owner) to obtain access to a licensee’s computer system(s) (e.g., remote access via modem) solely for purposes of maintenance or technical support.
As used in this Contract, “Unauthorized Code” means any virus, Trojan horse, worm or other software routines or equipment components designed to permit unauthorized access, to disable, erase, or otherwise harm Software, equipment, or data; or to perform any other such actions. The term Unauthorized Code does not include Self-Help Code.
Vendor will defend Purchaser against any claim, and indemnify Purchaser against any loss or expense arising out of any breach of the No Surreptitious Code Warranty.
REAUTHORIZATION CODE REQUIRED
Vendor’s Software shall not require a reauthorization code in order for the Software to remain functional upon Purchaser’s movement of the Software to another computer system.
SOFTWARE DOCUMENTATION
Vendor will provide access to user and technical documentation for each Software order, including technical, maintenance, and installation information. Vendor shall also provide access to user and technical documentation for each updated version of Software that Vendor provides pursuant to the Software Upgrades and Enhancements section. Vendor shall provide access to the documentation on or before the date Vendor delivers its respective Software. There shall be no additional charge for this documentation or the updates, in whatever form provided. Vendor’s Software documentation shall be comprehensive, well structured, and indexed for easy reference. If Vendor maintains its technical, maintenance and installation documentation on a web site, Vendor may fulfill the obligations set forth in this section by providing Purchaser access to its web-based documentation information. Vendor may also provide such information on CD-ROM. Vendor grants Purchaser the right
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to make derivative works, update, modify, copy, or otherwise reproduce the documentation furnished pursuant to this section at no additional charge.
Vendor’s Responsibilities SHIPPING AND RISK OF LOSS
Vendor shall ship all Products purchased pursuant to this Contract, freight prepaid, FOB Purchaser’s destination. The method of shipment shall be consistent with the nature of the Products and hazards of transportation. Regardless of FOB point, Vendor agrees to bear all risks of loss, damage, or destruction of the Products ordered hereunder that occurs prior to Acceptance, except loss or damage attributable to Purchaser’s fault or negligence; and such loss, damage, or destruction shall not release Vendor from any obligation hereunder. After Acceptance, the risk of loss or damage shall be borne by Purchaser, except loss or damage attributable to Vendor’s fault or negligence.
DELIVERY
Vendor shall deliver the Products ordered pursuant to this Contract per mutually agreed delivery schedule. For any exception to this Delivery Date, Vendor must notify Purchaser and obtain prior approval in writing. Time is of the essence with respect to delivery and Vendor may be subject to liquidated damages and/or termination of an order or of this Contract and/or other damages available under law for failure to deliver on time.
Vendor shall maintain a web site from which Purchaser may download the Software. Time is of the essence with respect to delivery and Vendor may be subject to termination of this Contract and/or other damages available under law for failure to maintain an operable web site.
SITE SECURITY
While on Purchaser’s premises, Vendor, its agents, employees, or Subcontractors shall conform in all respects with physical, fire, or other security regulations.
INSTALLATION
Evergreen shall be responsible for installation and configuration of the CMS.
SOFTWARE WARRANTY
Vendor warrants that the Software shall be in good operating condition and shall conform to the Specifications for a period of [as specified in Vendor’s response], the Warranty Period. This warranty period begins the first day following the Acceptance Date. Vendor shall replace all Software that is defective or not performing in accordance with the Specifications, at Vendor’s sole expense.
SOFTWARE UPGRADES AND ENHANCEMENTS
Vendor shall, provided Evergreen maintains a support/maintenance agreement with Vendor:
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Supply at no additional cost updated versions of the Software to operate on upgraded versions of operating systems, upgraded versions of firmware, or upgraded versions of hardware; and
Supply at no additional cost updated versions of the Software that encompass improvements, extensions, maintenance updates, error corrections, or other changes that are logical improvements or extensions of the original Software supplied to Purchaser.
SOFTWARE MAINTENANCE AND SUPPORT SERVICES
Vendor shall provide a replacement copy or correction service at no additional cost to Purchaser for any error, malfunction, or defect in Software that, when used as delivered, fails to perform in accordance with the Specifications and that Purchaser shall bring to Vendor’s attention. Vendor shall undertake such correction service as set forth below and shall use its best efforts to make corrections in a manner that is mutually beneficial. Vendor shall disclose all known defects and their detours or workarounds to Purchaser.
In addition, Vendor shall provide the following Services, provided Evergreen executes and maintains a support/maintenance agreement with Vendor:
Help Desk Services. Vendor shall provide Help Desk Services for reporting errors and malfunctions and trouble shooting problems. Vendor’s Help Desk Services shall be web-based and/or by toll-free telephone lines and/or via e-mail. Vendor’s Help Desk Services shall include but are not limited to the following Services:
Assistance related to questions on the use of the subject Software;
Assistance in identifying and determining the causes of suspected errors or malfunctions in the Software;
Advice on detours or workarounds for identified errors or malfunctions, where reasonably available;
Information on errors previously identified by Purchaser and reported to Vendor and detours to these where available; and
Advice on the completion and authorization for submission of the required form(s) reporting identified problems in the Software to Vendor.
On-line Support. Vendor may execute on-line diagnostics from a remote Vendor location solely to assist in the identification and isolation of suspected Software errors or malfunctions.
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Error and Malfunction Service. Within two (2) Business Days of receiving oral or written notification by Purchaser of identified errors or malfunctions in the Software, Vendor will either:
Provide Purchaser with detour or code correction to the Software error or malfunctions. Each detour or code correction will be made available in the form of either a written correction notice or machine-readable media and will be accompanied by a level of documentation adequate to inform Purchaser of the problem resolved and any significant operational differences resulting from the correction that is known by Vendor, or
Provide Purchaser with a written response describing Vendor’s then-existing diagnosis of the error or malfunction and generally outlining Vendor’s then-existing plan and timetable for correcting or working around the error or malfunction.
On-Call Support. If a problem occurs that significantly impacts Purchaser’s usage of the Software and remains unidentified or unresolved after Purchaser has utilized the detour or code correction prescribed by Vendor pursuant to subsection 26.1 or 26.3 above, Vendor will dispatch a qualified representative to the system location during Business Days and Hours. The representative must arrive within five (5) Business Days. This representative shall have the qualifications necessary to provide:
Advice and assistance in diagnosis and identification of Software errors or malfunctions.
On-site consultation on correction or detour of identified errors or malfunctions.
When Vendor performs Services pursuant to this Contract that require the use of Purchaser’s equipment, Purchaser agrees to make the equipment available at reasonable times and in reasonable time increments, and in no event will Purchaser charge Vendor for such use.
Maintenance Release Services. Vendor will provide error corrections and maintenance releases to the Software that have been developed by Vendor at no additional cost to Purchaser. Such releases shall be licensed to Purchaser pursuant to the terms and conditions of this Contract. Each maintenance release will consist of a set of programs and files made available in the form of machine-readable media and will be accompanied by a level of documentation adequate to inform Purchaser of the problems resolved including any significant differences resulting from the release that are known by Vendor. Vendor agrees that each maintenance release of Software will be compatible with the then-current unaltered release of Software applicable to the computer system.
VENDOR COMMITMENTS, WARRANTIES AND REPRESENTATIONS
Any written commitment by Vendor within the scope of this Contract shall be binding upon Vendor. Failure of Vendor to fulfill such a commitment may constitute breach and shall render Vendor liable for damages under the terms of this Contract. For purposes of this section, a commitment by Vendor includes: (i) Prices, discounts, and options committed to remain in force over a specified period of time; and (ii) any warranty or representation made by Vendor in its Response or contained in any Vendor or manufacturer publications, written materials, schedules, charts, diagrams, tables, descriptions, other written representations, and
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any other communication medium accompanying or referred to in its Response or used to effect the sale to Purchaser.
TRAINING
Training costs shall be as set forth in Schedule A.
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PROTECTION OF PURCHASER’S CONFIDENTIAL INFORMATION
Vendor acknowledges that some of the material and information that may come into its possession or knowledge in connection with this Contract or its performance may consist of information that is exempt from disclosure to the public or other unauthorized persons under either chapter 42.17 RCW or other state or federal statutes (“Confidential Information”). Confidential Information includes, but is not limited to, names, addresses, Social Security numbers, e-mail addresses, telephone numbers, financial profiles, credit card information, driver’s license numbers, medical data, law enforcement records, agency source code or object code, agency security data, or information identifiable to an individual that relates to any of these types of information. Vendor agrees to hold Confidential Information in strictest confidence and not to make use of Confidential Information for any purpose other than the performance of this Contract, to release it only to authorized employees or Subcontractors requiring such information for the purposes of carrying out this Contract, and not to release, divulge, publish, transfer, sell, disclose, or otherwise make the information known to any other party without Purchaser’s express written consent or as provided by law. Vendor agrees to include these provisions in any agreement entered into with Subcontractors or any other third party. Vendor agrees to implement physical, electronic, and managerial safeguards to prevent unauthorized access to Confidential Information.
Immediately upon expiration or termination of this Contract, Vendor shall, at Purchaser’s option: (i) certify to Purchaser that Vendor has destroyed all Confidential Information; or (ii) return all Confidential Information to Purchaser; or (iii) take whatever other steps Purchaser requires of Vendor to protect Purchaser’s Confidential Information.
Vendor shall maintain a log documenting the following: the Confidential Information received in the performance of this Contract; the purpose(s) for which the Confidential Information was received; who received, maintained and used the Confidential Information; and the final disposition of the Confidential Information. Vendor’s records shall be subject to inspection, review or audit in accordance with Review of Vendor’s Records.
Purchaser reserves the right to monitor, audit, or investigate the use of Confidential Information collected, used, or acquired by Vendor through this Contract. The monitoring, auditing, or investigating may include, but is not limited to, salting databases.
Violation of this section by Vendor or its Subcontractors may result in termination of this Contract and demand for return of all Confidential Information, monetary damages, or penalties.
Contract Administration LEGAL NOTICES
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Any notice or demand or other communication required or permitted to be given under this Contract or applicable law shall be effective only if it is in writing and signed by the applicable party, properly addressed, and either delivered in person, or by a recognized courier service, or deposited with the United States Postal Service as first-class mail, postage prepaid, via facsimile, or by electronic mail to the parties at the addresses provided in this section. For purposes of complying with any provision in this Contract or applicable law that requires a “writing,” such communication, when digitally signed with a Washington State Licensed Certificate, shall be considered to be “in writing” or “written” to an extent no less than if it were in paper form.
To Vendor at: To Purchaser at:
[Vendor] The Evergreen State CollegeAttn: Attn: Kathleen Haskett
Purchasing Department2700 Evergreen Parkway NWOlympia, WA 98505:
Phone: Phone: 360-867-6356 Fax: Fax: 360-867-6831E-mail: E-mail: [email protected]
Notices shall be effective upon receipt or four (4) Business Days after mailing, whichever is earlier. The notice address as provided herein may be changed by written notice given as provided above.
In the event that a subpoena or other legal process commenced by a third party in any way concerning the Software or Services provided pursuant to this Contract is served upon Vendor or Purchaser, such party agrees to notify the other party in the most expeditious fashion possible following receipt of such subpoena or other legal process. Vendor and Purchaser further agree to cooperate with the other party in any lawful effort by the other party to contest the legal validity of such subpoena or other legal process commenced by a third party.
VENDOR ACCOUNT MANAGER
Vendor shall appoint an Account Manager for Purchaser’s account under this Contract who will provide oversight of Vendor activities conducted hereunder. Vendor’s Account Manager will be the principal point of contact for Purchaser concerning Vendor’s performance under this Contract. Vendor shall notify Purchaser Contract Administrator and Purchaser Project Manager, in writing, when there is a new Vendor Account Manager assigned to this Contract. The Vendor Account Manager information is:
Vendor Account Manager: Address: Phone: Fax: E-mail:
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PURCHASER PROJECT MANAGER
Purchaser shall appoint Luke Bowerman who will be the Purchaser Project Manager for this Contract and will provide oversight of the activities conducted hereunder. Purchaser Project Manager will be the principal contact for Vendor concerning business activities under this Contract. Purchaser shall notify Vendor, in writing, when there is a new Purchaser Project Manager assigned to this Contract.
SECTION HEADINGS, INCORPORATED DOCUMENTS AND ORDER OF PRECEDENCE
The headings used herein are inserted for convenience only and shall not control or affect the meaning or construction of any of the sections.
Each of the documents listed below is, by this reference, incorporated into this Contract as though fully set forth herein.
Schedules A;
Evergreen RFP IT211 dated July 22, 2003;
Vendor’s Response to Evergreen IT211 dated September 14, 2006;
The terms and conditions contained on Purchaser’s purchase documents, if used; and
All Vendor or manufacturer publications, written materials and schedules, charts, diagrams, tables, descriptions, other written representations and any other supporting materials Vendor made available to Purchaser and used to effect the sale of Software to Purchaser.
In the event of any inconsistency in this Contract, the inconsistency shall be resolved in the following order of precedence:
Applicable federal and state statutes, laws, and regulations;
Sections of this Contract;
Schedule A;
Evergreen RFP IT211 dated September 14, 2006;
Vendor’s Response to Evergreen IT211 dated [date], 2006;
The terms and conditions contained on Purchaser’s order documents, if used; and
All Vendor or manufacturer publications, written materials and schedules, charts, diagrams, tables, descriptions, other written representations and any other supporting materials Vendor made available to Purchaser and used to effect the sale of Software to Purchaser.
ENTIRE AGREEMENT
This Contract sets forth the entire agreement between the parties with respect to the subject matter hereof and except as provided in the section titled Vendor Commitments, Warranties and Representations, understandings, agreements, representations, or warranties not contained in this Contract or a written amendment hereto shall not be binding on either party. Except as provided herein, no alteration of any of the terms, conditions, delivery, Price, quality, or Specifications of this Contract will be effective without the written consent of both parties.
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AUTHORITY FOR MODIFICATIONS AND AMENDMENTS
No modification, amendment, alteration, addition, or waiver of any section or condition of this Contract shall be effective or binding unless it is in writing and signed by Purchaser and Vendor Contracting Officers. Only Purchaser Contracting Officer shall have the express, implied, or apparent authority to alter, amend, modify, add, or waive any section or condition of this Contract on behalf of Purchaser.
INDEPENDENT STATUS OF VENDOR
In the performance of this Contract, the parties will be acting in their individual, corporate or governmental capacities and not as agents, employees, partners, joint venturers, or associates of one another. The parties intend that an independent contractor relationship will be created by this Contract. The employees or agents of one party shall not be deemed or construed to be the employees or agents of the other party for any purpose whatsoever. Vendor shall not make any claim of right, privilege or benefit which would accrue to an employee under chapter 41.06 RCW or Title 51 RCW.
GOVERNING LAW
This Contract shall be governed in all respects by the law and statutes of the state of Washington, without reference to conflict of law principles. However, if the Uniform Computer Information Transactions Act (UCITA) or any substantially similar law is enacted as part of the law of the state of Washington, said statute will not govern any aspect of this Contract or any license granted hereunder, and instead the law as it existed prior to such enactment will govern. The jurisdiction for any action hereunder shall be exclusively in the Superior Court for the state of Washington. The venue of any action hereunder shall be in the Superior Court for Thurston County, Washington.
SUBCONTRACTORS
Vendor may enter into subcontracts with third parties for its performance of any part of Vendor’s duties and obligations. In no event shall the existence of a subcontract operate to release or reduce the liability of Vendor to Purchaser for any breach in the performance of Vendor’s duties. For purposes of this Contract, Vendor agrees that all Subcontractors shall be held to be agents of Vendor. Vendor shall be liable for any loss or damage to Purchaser, including but not limited to personal injury, physical loss, harassment of Purchaser employee, or violations of the Patent and Copyright Indemnification, Protection of Purchaser’s Confidential Information, Ownerhip/Rights in Data, and Software Ownership sections of this Contract occasioned by the acts or omissions of Vendor’s Subcontractors, their agents or employees. The Patent and Copyright Indemnification, Protection of Purchaser’s Confidential Information, Ownership/Rights in Data, Software Ownership, Publicity and Review of Vendor’s Records sections of this Contract shall apply to all Subcontractors.
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ASSIGNMENT
With the prior written consent of Purchaser Contracting Officer, which consent shall be at Purchaser’s sole option and not unreasonably withheld, Vendor may assign this Contract including the proceeds hereof, provided that such assignment shall not operate to relieve Vendor of any of its duties and obligations hereunder, nor shall such assignment affect any remedies available to Purchaser that may arise from any breach of the sections of this Contract, or warranties made herein including but not limited to, rights of setoff.
Purchaser may assign this Contract to any public agency, commission, board, or the like, within the political boundaries of the state of Washington, provided that such assignment shall not operate to relieve Purchaser of any of its duties and obligations hereunder.
PUBLICITY
The award of this Contract to Vendor is not in any way an endorsement of Vendor or Vendor’s products by Purchaser and shall not be so construed by Vendor in any advertising or other publicity materials.
Vendor agrees to submit to Purchaser, all advertising, sales promotion, and other publicity materials relating to this Contract or any Product furnished by Vendor wherein Purchaser’s name is mentioned, language is used, or Internet links are provided from which the connection of Purchaser’s name therewith may, in Purchaser’s judgment, be inferred or implied. Vendor further agrees not to publish or use such advertising, sales promotion materials, publicity or the like through print, voice, the World Wide Web, and other communication media in existence or hereinafter developed without the express written consent of Purchaser prior to such use.
REVIEW OF VENDOR’S RECORDS
Vendor and its Subcontractors shall maintain books, records, documents and other evidence relating to this Contract, including but not limited to Minority and Women’s Business Enterprise participation, protection and use of Purchaser’s Confidential Information, and accounting procedures and practices which sufficiently and properly reflect all direct and indirect costs of any nature invoiced in the performance of this Contract. Vendor shall retain all such records for six (6) years after the expiration or termination of this Contract. Records involving matters in litigation related to this Contract shall be kept for either one (1) year following the termination of litigation, including all appeals, or six (6) years from the date of expiration or termination of this Contract, whichever is later.
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All such records shall be subject at reasonable times and upon prior notice to examination, inspection, copying, or audit by personnel so authorized by the Purchaser’s Contract Administrator and/or the Office of the State Auditor and federal officials so authorized by law, rule, regulation or contract, when applicable, at no additional cost to the State. During this Contract’s term, Vendor shall provide access to these items within Thurston County. Vendor shall be responsible for any audit exceptions or disallowed costs incurred by Vendor or any of its Subcontractors.
Vendor shall incorporate in its subcontracts this section’s records retention and review requirements.
It is agreed that books, records, documents, and other evidence of accounting procedures and practices related to Vendor’s cost structure, including overhead, general and administrative expenses, and profit factors shall be excluded from Purchaser’s review unless the cost or any other material issue under this Contract is calculated or derived from these factors.
General Provisions PATENT AND COPYRIGHT INDEMNIFICATION
Vendor, at its expense, shall defend, indemnify, and save Purchaser harmless from and against any claims against Purchaser that any Product and/or Work Product supplied hereunder, or Purchaser’s use of the Product and/or Work Product within the terms of this Contract, infringes any patent, copyright, utility model, industrial design, mask work, trade secret, trademark, or other similar proprietary right of a third party worldwide. Vendor shall pay all costs of such defense and settlement and any penalties, costs, damages and attorneys’ fees awarded by a court or incurred by Purchaser provided that Purchaser:
Promptly notifies Vendor in writing of the claim, but Purchaser’s failure to provide timely notice shall only relieve Vendor from its indemnification obligations if and to the extent such late notice prejudiced the defense or resulted in increased expense or loss to Vendor; and
Cooperates with and agrees to use its best efforts to encourage the Office of the Attorney General of Washington to grant Vendor sole control of the defense and all related settlement negotiations.
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If such claim has occurred, or in Vendor’s opinion is likely to occur, Purchaser agrees to permit Vendor, at its option and expense, either to procure for Purchaser the right to continue using the Product and/or Work Product or to replace or modify the same so that they become noninfringing and functionally equivalent. If use of the Product and/or Work Product is enjoined by a court and Vendor determines that none of these alternatives is reasonably available, Vendor, at its risk and expense, will take back the Product and/or Work Product and provide Purchaser a refund. In the case of Work Product, Vendor shall refund to Purchaser the entire amount Purchaser paid to Vendor for Vendor’s provision of the Work Product. In the case of Product, Vendor shall refund to Purchaser its depreciated value. No termination charges will be payable on such returned Product, and Purchaser will pay only those charges that were payable prior to the date of such return. Depreciated value shall be calculated on the basis of a useful life of four (4) years commencing on the date of purchase and shall be an equal amount per year over said useful life. The depreciation for fractional parts of a year shall be prorated on the basis of three hundred sixty-five (365) days per year. In the event the Product has been installed less than one (1) year, all costs associated with the initial installation paid by Purchaser shall be refunded by Vendor.
Vendor has no liability for any claim of infringement arising solely from:
Vendor’s compliance with any designs, specifications or instructions of Purchaser;
Modification of the Product and/or Work Product by Purchaser or a third party without the prior knowledge and approval of Vendor; or
Use of the Product and/or Work Product in a way not specified by Vendor;
unless the claim arose against Vendor’s Product and/or Work Product independently of any of these specified actions.SAVE HARMLESS
Vendor shall defend, indemnify, and save Purchaser harmless from and against any claims, including reasonable attorneys’ fees resulting from such claims, by third parties for any or all injuries to persons or damage to property of such third parties arising from intentional, willful or negligent acts or omissions of Vendor, its officers, employees, or agents, or Subcontractors, their officers, employees, or agents. Vendor’s obligation to defend, indemnify, and save Purchaser harmless shall not be eliminated or reduced by any alleged concurrent Purchaser negligence.
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INSURANCE
Vendor shall, during the term of this Contract, maintain in full force and effect, the insurance described in this section. Vendor shall acquire such insurance from an insurance carrier or carriers licensed to conduct business in the state of Washington having a rating of A-, Class VII or better, in the most recently published edition of Best’s Reports. In the event of cancellation, non-renewal, revocation, or other termination of any insurance coverage required by this Contract, Vendor shall provide written notice of such to Purchaser within one (1) Business Day of Vendor’s receipt of such notice. Failure to buy and maintain the required insurance may, at Purchaser’s sole option, result in this Contract’s termination.
The minimum acceptable limits shall be as indicated below, with no deductible for each of the following categories:
Commercial General Liability covering the risks of bodily injury (including death), property damage and personal injury, including coverage for contractual liability, with a limit of not less than $1 million per occurrence/$2 million general aggregate;
Business Automobile Liability (owned, hired, or non-owned) covering the risks of bodily injury (including death) and property damage, including coverage for contractual liability, with a limit of not less than $1 million per accident;
Employers Liability insurance covering the risks of Vendor’s employees’ bodily injury by accident or disease with limits of not less than $1 million per accident for bodily injury by accident and $1 million per employee for bodily injury by disease;
Umbrella policy providing excess limits over the primary policies in an amount not less than $3 million;
Vendor shall pay premiums on all insurance policies. Such insurance policies shall name Purchaser as an additional insured on all general liability, automobile liability, and umbrella policies. Such policies shall also reference this Contract number RFP IT211 and shall have a condition that they not be revoked by the insurer until forty-five (45) calendar days after notice of intended revocation thereof shall have been given to Purchaser by the insurer.
All insurance provided by Vendor shall be primary as to any other insurance or self-insurance programs afforded to or maintained by the State and shall include a severability of interests (cross-liability) provision.
Vendor shall include all Subcontractors as insured under all required insurance policies, or shall furnish separate certificates of insurance and endorsements for each Subcontractor. Subcontractor(s) shall comply fully with all insurance requirements stated herein. Failure of Subcontractor(s) to comply with insurance requirements does not limit Vendor’s liability or responsibility.
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Vendor shall furnish to Purchaser copies of certificates of all required insurance within fifteen (15) calendar days of this Contract’s Effective Date and copies of renewal certificates of all required insurance within thirty (30) days after the renewal date. These certificates of insurance must expressly indicate compliance with each and every insurance requirement specified in this section. Failure to provide evidence of coverage may, at Purchaser’s sole option, result in this Contract’s termination.
By requiring insurance herein, Purchaser does not represent that coverage and limits will be adequate to protect Vendor. Such coverage and limits shall not limit Vendor’s liability under the indemnities and reimbursements granted to Purchaser in this Contract.
INDUSTRIAL INSURANCE COVERAGE
Prior to performing work under this Contract, Vendor shall provide or purchase industrial insurance coverage for its employees, as may be required of an “employer” as defined in Title 51 RCW, and shall maintain full compliance with Title 51 RCW during the course of this Contract. Purchaser will not be responsible for payment of industrial insurance premiums or for any other claim or benefit for Vendor, or any Subcontractor or employee of Vendor, which might arise under the industrial insurance laws during the performance of duties and services under this Contract.
LICENSING STANDARDS
Vendor shall comply with all applicable local, state, and federal licensing, accreditation and registration requirements and standards necessary in the performance of this Contract. (See, for example, chapter 19.02 RCW for state licensing requirements and definitions.)
OSHA/WISHA
Vendor represents and warrants that its Products, when shipped, are designed and manufactured to meet then current federal and state safety and health regulations. Vendor agrees to indemnify and hold Purchaser harmless from all damages assessed against Purchaser as a result of the failure of the Products furnished under this Contract to so comply.
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UNIFORM COMMERCIAL CODE (UCC) APPLICABILITY
Except to the extent the sections of this Contract are clearly inconsistent, this Contract shall be governed by any applicable sections of the Uniform Commercial Code (UCC) as set forth in Title 62A RCW.
To the extent this Contract entails delivery or performance of services, such services shall be deemed “goods” within the meaning of the UCC, except when to do so would result in an absurdity.
In the event of any clear inconsistency or contradiction between this Contract and the UCC, the terms and conditions of this Contract take precedence and shall prevail unless otherwise provided by law.
ANTITRUST VIOLATIONS
Vendor and Purchaser recognize that, in actual economic practice, overcharges resulting from antitrust violations are usually borne by Purchaser. Therefore, Vendor hereby assigns to Purchaser any and all claims for such overcharges as to goods and services purchased in connection with this Contract, except as to overcharges not passed on to Purchaser resulting from antitrust violations commencing after the date of the bid, quotation, or other event establishing the Price under this Contract.
COMPLIANCE WITH CIVIL RIGHTS LAWS
During the performance of this Contract, Vendor shall comply with all federal and applicable state nondiscrimination laws, including but not limited to: Title VII of the Civil Rights Act, 42 U.S.C. §12101 et seq.; the Americans with Disabilities Act (ADA); and Title 49.60 RCW, Washington Law Against Discrimination. In the event of Vendor’s noncompliance or refusal to comply with any nondiscrimination law, regulation or policy, this Contract may be rescinded, canceled, or terminated in whole or in part under the Termination for Default sections, and Vendor may be declared ineligible for further contracts with Purchaser.
SEVERABILITY
If any term or condition of this Contract or the application thereof is held invalid, such invalidity shall not affect other terms, conditions, or applications which can be given effect without the invalid term, condition, or application; to this end the terms and conditions of this Contract are declared severable.
WAIVER
Waiver of any breach of any term or condition of this Contract shall not be deemed a waiver of any prior or subsequent breach. No term or condition of this Contract shall be held to be waived, modified, or deleted except by a written instrument signed by the parties.
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TREATMENT OF ASSETS
Title to all property furnished by Purchaser shall remain in Purchaser. Title to all property furnished by Vendor, for which Vendor is entitled to reimbursement, other than rental payments, under this Contract, shall pass to and vest in Purchaser pursuant to the Ownership/Rights in Data section. As used in this section Treatment of Assets, if the “property” is Vendor’s proprietary, copyrighted, patented, or trademarked works, only the applicable license, not title, is passed to and vested in Purchaser.
Any Purchaser property furnished to Vendor shall, unless otherwise provided herein or approved by Purchaser, be used only for the performance of this Contract.
Vendor shall be responsible for any loss of or damage to property of Purchaser that results from Vendor’s negligence or that results from Vendor’s failure to maintain and administer that property in accordance with sound management practices.
Upon loss or destruction of, or damage to any Purchaser property, Vendor shall notify Purchaser thereof and shall take all reasonable steps to protect that property from further damage.
Vendor shall surrender to Purchaser all Purchaser property prior to completion, termination, or cancellation of this Contract.
All reference to Vendor under this section shall also include Vendor’s employees, agents, or Subcontractors.
55. Vendor’s Proprietary Information
Vendor acknowledges that Purchaser is subject to chapter 42.17 RCW and that this Contract shall be a public record as defined in chapter 42.17 RCW. Any specific information that is claimed by Vendor to be Proprietary Information must be clearly identified as such by Vendor. To the extent consistent with chapter 42.17 RCW, Purchaser shall maintain the confidentiality of all such information marked Proprietary Information. If a public disclosure request is made to view Vendor’s Proprietary Information, Purchaser will notify Vendor of the request and of the date that such records will be released to the requester unless Vendor obtains a court order from a court of competent jurisdiction enjoining that disclosure. If Vendor fails to obtain the court order enjoining disclosure, Purchaser will release the requested information on the date specified.
Disputes and Remedies 56. DISPUTES
In the event a dispute arises under this Contract, it shall be handled by a Dispute Resolution Panel in the following manner. Each party to this Contract shall appoint one member to the Panel. These two appointed members shall jointly appoint an additional member. The Dispute Resolution Panel shall review the facts, Contract terms and applicable statutes and
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rules and make a determination of the dispute as quickly as reasonably possible. The determination of the Dispute Resolution Panel shall be final and binding on the parties hereto. Purchaser and Vendor agree that, the existence of a dispute notwithstanding, they will continue without delay to carry out all their respective responsibilities under this Contract that are not affected by the dispute.
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In the event a bona fide dispute concerning a question of fact arises between Purchaser and Vendor and it cannot be resolved between the parties, either party may initiate the dispute resolution procedure provided herein.
The initiating party shall reduce its description of the dispute to writing and deliver it to the responding party. The responding party shall respond in writing within three (3) Business Days. The initiating party shall have three (3) Business Days to review the response. If after this review resolution cannot be reached, both parties shall have three (3) Business Days to negotiate in good faith to resolve the dispute.
If the dispute cannot be resolved after three (3) Business Days, a Dispute Resolution Panel may be requested in writing by either party who shall also identify the first panel member. Within three (3) Business Days of receipt of the request, the other party will designate a panel member. Those two panel members will appoint a third individual to the dispute resolution panel within the next three (3) Business Days.
The Dispute Resolution Panel will review the written descriptions of the dispute, gather additional information as needed, and render a decision on the dispute in the shortest practical time.
Each party shall bear the cost for its panel member and share equally the cost of the third panel member.
Both parties agree to be bound by the determination of the Dispute Resolution Panel.
Both parties agree to exercise good faith in dispute resolution and to settle disputes prior to using a Dispute Resolution Panel whenever possible.
Purchaser and Vendor agree that, the existence of a dispute notwithstanding, they will continue without delay to carry out all their respective responsibilities under this Contract that are not affected by the dispute.
If the subject of the dispute is the amount due and payable by Purchaser for Services being provided by Vendor, Vendor shall continue providing Services pending resolution of the dispute provided Purchaser pays Vendor the amount Purchaser, in good faith, believes is due and payable, and places in escrow the difference between such amount and the amount Vendor, in good faith, believes is due and payable.
ATTORNEYS’ FEES AND COSTS
If any litigation is brought to enforce any term, condition, or section of this Contract, or as a result of this Contract in any way, the prevailing party shall be awarded its reasonable attorneys’ fees together with expenses and costs incurred with such litigation, including necessary fees, costs, and expenses for services rendered at both trial and appellate levels, as well as subsequent to judgment in obtaining execution thereof.
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In the event that the parties engage in arbitration, mediation or any other alternative dispute resolution forum to resolve a dispute in lieu of litigation, both parties shall share equally in the cost of the alternative dispute resolution method, including cost of mediator or arbitrator. In addition, each party shall be responsible for its own attorneys’ fees incurred as a result of the alternative dispute resolution method.
NON-EXCLUSIVE REMEDIES
The remedies provided for in this Contract shall not be exclusive but are in addition to all other remedies available under law.
FAILURE TO PERFORM
If Vendor fails to perform any substantial obligation under this Contract, Purchaser shall give Vendor written notice of such Failure to Perform. If after thirty (30) calendar days from the date of the written notice Vendor still has not performed, then Purchaser may withhold all monies due and payable to Vendor, without penalty to Purchaser, until such Failure to Perform is cured or otherwise resolved.
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LIMITATION OF LIABILITY
The parties agree that neither Vendor nor Purchaser shall be liable to each other, regardless of the form of action, for consequential, incidental, indirect, or special damages except a claim related to bodily injury or death, or a claim or demand based on a Date Warranty or No Surreptitious Code Warranty issue or patent, copyright, or other intellectual property right infringement, in which case liability shall be as set forth elsewhere in this Contract. This section does not modify any sections regarding liquidated damages or any other conditions as are elsewhere agreed to herein between the parties. The damages specified in the sections titled OSHA/WISHA, Termination for Default, and Review of Vendor’s Records are not consequential, incidental, indirect, or special damages as that term is used in this section.
Neither Vendor nor Purchaser shall be liable for damages arising from causes beyond the reasonable control and without the fault or negligence of either Vendor or Purchaser. Such causes may include, but are not restricted to, acts of God or of the public enemy, acts of a governmental body other than Purchaser acting in either its sovereign or contractual capacity, war, explosions, fires, floods, earthquakes, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather; but in every case the delays must be beyond the reasonable control and without fault or negligence of Vendor, Purchaser, or their respective Subcontractors.
If delays are caused by a Subcontractor without its fault or negligence, Vendor shall not be liable for damages for such delays, unless the Services to be performed were obtainable on comparable terms from other sources in sufficient time to permit Vendor to meet its required performance schedule.
Neither party shall be liable for personal injury to the other party or damage to the other party’s property except personal injury or damage to property proximately caused by such party’s respective fault or negligence.
Contract Termination TERMINATION FOR DEFAULT
If either Purchaser or Vendor violates any material term or condition of this Contract or fails to fulfill in a timely and proper manner its obligations under this Contract, then the aggrieved party shall give the other party written notice of such failure or violation. The responsible party will correct the violation or failure within thirty (30) calendar days or as otherwise mutually agreed in writing. If the failure or violation is not corrected, this Contract may be terminated immediately by written notice from the aggrieved party to the other party. The option to terminate shall be at the sole discretion of the aggrieved party. Purchaser reserves the right to suspend all or part of the Contract, withhold further payments, or prohibit Vendor from incurring additional obligations of funds during investigation of any alleged Vendor compliance breach and pending corrective action by Vendor or a decision by Purchaser to terminate the Contract.
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If the Failure to Perform is without the defaulting party’s control, fault, or negligence, the termination shall be deemed to be a Termination for Convenience.
This section shall not apply to any failure(s) to perform that results from the willful or negligent acts or omissions of the aggrieved party.
TERMINATION FOR CONVENIENCE
When, at the sole discretion of Purchaser, it is in the best interest of Evergreen, Purchaser Contracting Officer may terminate this Contract, in whole or in part, by fourteen (14) calendar days written notice to Vendor. If this Contract is so terminated, Purchaser is liable only for payments required by the terms of this Contract for Software and Services received and Accepted by Purchaser prior to the effective date of termination.
TERMINATION FOR WITHDRAWAL OF AUTHORITY
In the event that Purchaser’s authority to perform any of its duties is withdrawn, reduced, or limited in any way after the commencement of this Contract and prior to normal completion, Purchaser may terminate this Contract by seven (7) calendar days written notice to Vendor. No penalty shall accrue to Purchaser in the event this section shall be exercised. This section shall not be construed to permit Purchaser to terminate this Contract in order to acquire similar Services from a third party.
TERMINATION FOR NON-ALLOCATION OF FUNDS
If funds are not allocated to Purchaser to continue this Contract in any future period, Purchaser may terminate this Contract by seven (7) calendar days written notice to Vendor or work with Vendor to arrive at a mutually acceptable resolution of the situation. Purchaser will not be obligated to pay any further charges for Services including the net remainder of agreed to consecutive periodic payments remaining unpaid beyond the end of the then-current period. Purchaser agrees to notify Vendor in writing of such non-allocation at the earliest possible time. No penalty shall accrue to Purchaser in the event this section shall be exercised. This section shall not be construed to permit Purchaser to terminate this Contract in order to acquire similar Services from a third party.
TERMINATION FOR CONFLICT OF INTEREST
Purchaser may terminate this Contract by written notice to Vendor if Purchaser determines, after due notice and examination, that any party has violated chapter 42.52 RCW, Ethics in Public Service or any other laws regarding ethics in public acquisitions and procurement and performance of contracts. In the event this Contract is so terminated, Purchaser shall be entitled to pursue the same remedies against Vendor as it could pursue in the event Vendor breaches this Contract.
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TERMINATION PROCEDURE
In addition to the procedures set forth below, if Purchaser terminates this Contract, Vendor shall follow any procedures Purchaser specifies in Purchaser’s Notice of Termination.
Upon termination of this Contract, Purchaser, in addition to any other rights provided in this Contract, may require Vendor to deliver to Purchaser any property, Products, or Work Products specifically produced or acquired for the performance of such part of this Contract as has been terminated. The section titled Treatment of Assets shall apply in such property transfer.
Unless otherwise provided herein, Purchaser shall pay to Vendor the agreed-upon price, if separately stated, for the Products or Services received and Accepted by Purchaser, provided that in no event shall Purchaser pay to Vendor an amount greater than Vendor would have been entitled to if this Contract had not been terminated. Failure to agree with such determination shall be a dispute within the meaning of the Disputes section of this Contract
Vendor shall pay amounts due Purchaser as the result of termination within thirty (30) calendar days of notice of amounts due. If Vendor fails to make timely payment, Purchaser may charge interest on the amounts due at one percent (1%) per month until paid in full.
COVENANT AGAINST CONTINGENT FEES
Vendor warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon any agreement or understanding for a commission, percentage, brokerage, or contingent fee, except bona fide employees or a bona fide established commercial or selling agency of Vendor.
In the event Vendor breaches this section, Purchaser shall have the right to either annul this Contract without liability to Purchaser, or, in Purchaser’s discretion, deduct from payments due to Vendor, or otherwise recover from Vendor, the full amount of such commission, percentage, brokerage, or contingent fee.
ELIGIBILITY OF OTHER INSTITUTIONS TO PURCHASE
TERM & t&c
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Contract Execution AUTHORITY TO BIND
The signatories to this Contract represent that they have the authority to bind their respective organizations to this Contract.
69. Counterparts
This Contract may be executed in counterparts or in duplicate originals. Each counterpart or each duplicate shall be deemed an original copy of this Contract signed by each party, for all purposes.
In Witness Whereof, the parties hereto, having read this Contract in its entirety, including all attachments, do agree in each and every particular and have thus set their hands hereunto.
This Contract is effective this _____day of ______________, 2___.
Approved ApprovedThe Evergreen State College [Vendor]
Signature Signature
John HurleyPrint or Type Name Date
Vice President for Finance and Administration
Print or Type Name Date
Title Title
Approved as to Form Vendor Information
State of Washington Vendor’s UBI Number:Office of the Attorney General
Minority or Woman Owned Business Signature
Yes No XPrint or Type Name (Certification Number)Assistant Attorney GeneralTitle Date
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Schedule AAuthorized Product and Price List
as of [date]
forContract Number RFP IT211
with[Vendor]
[Vendor] is authorized to sell only the Products identified in this Schedule A at the Prices set forth in this Schedule A under this Contract.
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