IT211 WEB CONTENT MANAGEMENT SYSTEM

  REQUEST FOR PROPOSALS
         SEPTEMBER 14, 2006



             Proposal number:
...
TABLE OF CONTENTS
   1.1 PURPOSE OF THE REQUEST FOR PROPOSALS ...............................................................
4.6APPLICATION INTEGRATIONS..................................................................................................
LEVIED OR ASSESSED ON             VENDOR ’S PERSONAL            PROPERTY .        PURCHASER, AS AN AGENCY OF WASHINGTON ST...
DELIVERED HEREUNDER MAY BE USED IN THE DELIVERY OF THESE SERVICES .                            VENDOR ACKNOWLEDGES AND AGR...
CONTRACT. THE WARRANTY IS REFERRED TO IN THIS CONTRACT AS THE “NO SURREPTITIOUS CODE WARRANTY.” 70
AS USED IN THIS CONTRAC...
EXEMPT FROM DISCLOSURE TO THE PUBLIC OR OTHER UNAUTHORIZED PERSONS UNDER EITHER CHAPTER                                   ...
Sections of this Contract; ..................................................................................................
Promptly notifies Vendor in writing of the claim, but Purchaser’s failure to provide timely notice shall
   only relieve V...
VENDOR SHALL          FURNISH TO      PURCHASER COPIES OF CERTIFICATES OF ALL REQUIRED INSURANCE WITHIN FIFTEEN (15)
CALEN...
IF THE SUBJECT OF THE DISPUTE IS THE AMOUNT DUE AND PAYABLE BY PURCHASER FOR SERVICES BEING PROVIDED BY
VENDOR , VENDOR SH...
UNLESS OTHERWISE PROVIDED HEREIN, PURCHASER SHALL PAY TO VENDOR THE AGREED -UPON PRICE, IF SEPARATELY
STATED , FOR THE PRO...
Web Content Management System
                             Request for Proposals IT211

1.    INTRODUCTION
1.1   Purpose o...
meet anticipated future requirements. Subsequent contract addendum(s) will cover
       this additional functionality.

  ...
Enterprise network backups are facilitated using Commvault’s Galaxy enterprise
          backup solution over 1000BaseT ne...
2.     GENERAL ADMINISTRATIVE INSTRUCTIONS
2.1    Introduction to this Section
       The purpose of this section is to pr...
Announce Successful Vendor                       November 28, 2006
        Contract Negotiations                          ...
conditions as stated in this RFP and the attached sample contract. Any exceptions to
       these clauses must be noted in...
The RFP and all of its specifications and the vendor’s responses to them will
        automatically be incorporated into a...
2.5.6   Waiver of Minor Administrative Irregularities
        Evergreen reserves the right, at its sole discretion, to wai...
1200         Total Maximum Number of Points

2.6.3   College Rights
        Evergreen reserves the right to accept or reje...
Evergreen. Evergreen may request additional information from vendor finalists to
        clarify technical responses and v...
2.7.6 Vendor Debriefing
      Vendors of unsuccessful proposals may, within three (3) business days of the
      announcem...
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IT211_Web Content Management System_Final.doc

  1. 1. 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
  2. 2. TABLE OF CONTENTS 1.1 PURPOSE OF THE REQUEST FOR PROPOSALS ..............................................................................................12 Scope............................................................................................................................................................12 1.2 ACQUISITION PROCESS OVERVIEW...........................................................................................................13 1.3 DESCRIPTION OF CURRENT SYSTEM..........................................................................................................13 1.4 CURRENT SYSTEM ENVIRONMENT ...........................................................................................................13 1.4.1Campus Network.................................................................................................................................13 1.4.2 Applications........................................................................................................................................14 1.5ACQUISITION OBJECTIVES AND GOALS .....................................................................................................14 2.1 INTRODUCTION TO THIS SECTION.............................................................................................................15 2.2 PROJECT COORDINATOR ........................................................................................................................15 2.3 SCHEDULE OF EVENTS (SUMMARY OF PROCESS ) .......................................................................................15 2.3.1Acquisition Schedule/Timetable..........................................................................................................15 2.3.2 Implementation Schedule...................................................................................................................16 2.4 VENDOR PROPOSAL PREPARATION INSTRUCTIONS......................................................................................16 2.4.1 Proposal Response Date and Location..............................................................................................16 2.4.2Proposal Contents...............................................................................................................................16 2.4.3Section 1 - Transmittal Letter.............................................................................................................16 2.4.4Section 2: Administrative Requirements.............................................................................................17 2.4.5Appendix C Software License Contract..............................................................................................17 2.5 RFP QUESTIONS , INTERPRETATION , AND MODIFICATIONS..........................................................................18 2.5.1 Questions Regarding the RFP...........................................................................................................18 2.5.2 Interpretation of the RFP...................................................................................................................18 2.5.3 RFP Modifications.............................................................................................................................18 2.5.4 Errors in Proposal..............................................................................................................................18 2.5.5 Withdrawal of Proposals....................................................................................................................18 2.5.6 Waiver of Minor Administrative Irregularities.................................................................................19 2.5.7 Cost of Preparing Proposals..............................................................................................................19 2.5.8Non-Endorsement................................................................................................................................19 2.6 EVALUATION PROCESS............................................................................................................................19 2.6.1 Evaluation Team................................................................................................................................19 2.6.2 Evaluation Criteria............................................................................................................................19 2.6.3 College Rights....................................................................................................................................20 2.6.4 Definitions..........................................................................................................................................20 2.6.5 Phase I: Screening Process for Mandatory Requirement.................................................................20 2.6.6 Phase II Evaluation: Mandatory Requirements, Desired Features, Technical Requirements and Capabilities, Vendor Considerations, Cost Proposal.................................................................................20 2.6.7 Acquisition of Hardware....................................................................................................................20 2.6.8 Phase III: Final Evaluation...............................................................................................................20 2.6.9 Grounds for Disqualification.............................................................................................................21 2.7 CONTRACT AWARD AND EXECUTION........................................................................................................21 2.7.1 Contingency Provision.......................................................................................................................21 2.7.2RFP Response Verification.................................................................................................................21 2.7.3 Contract Content................................................................................................................................21 2.7.4 Contract Negotiations and Issues......................................................................................................21 2.7.5 Final Contract....................................................................................................................................21 2.7.6 Vendor Debriefing..............................................................................................................................22 2.7.7 Public Disclosure...............................................................................................................................22 2.8 VENDOR PROTESTS ................................................................................................................................22 2.8.1 RESOLUTION OF COMPLAINTS AND PROTESTS.........................................................................22 3.1 GENERAL INSTRUCTIONS.........................................................................................................................25 3.2 REQUIRED FORMAT................................................................................................................................25 4.1 GENERAL INSTRUCTIONS.........................................................................................................................32 4.2 STATISTICAL INFORMATION FOR SIZING THE SYSTEM -EXISTING SYSTEM STATISTICS.....................................32 4.2.1 System Load Estimates.......................................................................................................................32 4.4 SYSTEM INFRASTRUCTURE TECHNICAL REQUIREMENTS ...............................................................................32 Page 1 of 95
  3. 3. 4.6APPLICATION INTEGRATIONS....................................................................................................................32 4.7 HARDWARE CONFIGURATION RECOMMENDATION.......................................................................................32 4.8 OPERATING SYSTEM...............................................................................................................................33 4.9 APPLICATION FLEXIBILITY AND ENHANCEMENT OPTIONS............................................................................33 4.10 APPLICATION PROGRAMMING LANGUAGE AND ENHANCEMENTS..................................................................34 4.11 CMS WORKSTATIONS .........................................................................................................................34 5.1 INTRODUCTION......................................................................................................................................34 5.2 MANDATORY VENDOR REQUIREMENTS .....................................................................................................34 5.3 CORPORATE OVERVIEW..........................................................................................................................35 5.4 CUSTOMER BASE...................................................................................................................................35 5.5 CUSTOMER REFERENCES .........................................................................................................................35 5.6 TRAINING ............................................................................................................................................35 5.7 ONGOING SOFTWARE MAINTENANCE........................................................................................................36 6.1 INTRODUCTION .....................................................................................................................................36 6.2 HARDWARE ACQUISITION .......................................................................................................................37 6.3 PROPOSED SYSTEM FIVE- (5) YEAR COST MATRIX (EXHIBIT 6A)..............................................................37 APPLICATION SOFTWARE ............................................................................................................................37 SUPPORT /MAINTENANCE FEE........................................................................................................................37 6.5 SUPPORTING SYSTEM SOFTWARE (EXHIBIT 6C).........................................................................................38 VENDOR HAS NO LIABILITY FOR ANY CLAIM OF INFRINGEMENT ARISING SOLELY FROM:..........................................46 1.Vendor’s compliance with any designs, specifications or instructions of Purchaser;...........................46 2.Modification of the Product by Purchaser or a third party without the prior knowledge and approval of Vendor; or...............................................................................................................................................46 3.Use of the Product in a way not specified by Vendor; ..........................................................................46 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 .....................................................................................................................................................46 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............................................................................46 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 . ..................................................46 TERM OF CONTRACT FOR LICENSED SOFTWARE PURCHASES.............................................................................63 This Contract’s initial term shall be three (3) years, commencing upon the Effective Date....................63 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...............63 LICENSE TERM—SEE LICENSE GRANT...........................................................................................................63 TERM OF CONTRACT FOR MAINTENANCE AND SUPPORT ...................................................................................63 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..............................................................63 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 .......................................64 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....................64 PRICES NOT TO BE INCREASED DURING THE FIRST YEAR OF THE CONTRACT ..........................................................64 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 Page 2 of 95
  4. 4. LEVIED OR ASSESSED ON VENDOR ’S PERSONAL PROPERTY . PURCHASER, AS AN AGENCY OF WASHINGTON STATE GOVERNMENT , IS EXEMPT FROM PROPERTY TAX. ..............................................................................................65 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 ..................................65 VENDOR WILL SUBMIT PROPERLY ITEMIZED INVOICES TO ACCOUNTS PAYABLE AT EVERGREEN . INVOICES SHALL PROVIDE AND ITEMIZE , AS APPLICABLE :...........................................................................................................65 Purchaser Purchase Order number;...........................................................................................................65 Vendor name, address, phone number, and Federal Tax Identification Number; ...................................65 Description of Software, including quantity ordered;................................................................................65 Date(s) of delivery and/or date(s) of installation and set up;....................................................................65 Price for each item, or Vendor’s list Price for each item and applicable discounts;...............................65 Maintenance charges;.................................................................................................................................65 Net invoice Price for each item;.................................................................................................................65 Applicable taxes;.........................................................................................................................................66 Shipping costs;.............................................................................................................................................66 Other applicable charges;...........................................................................................................................66 Total invoice Price; and..............................................................................................................................66 Payment terms including any available prompt payment discounts..........................................................66 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 ).....................................................................................................................................66 PAYMENTS SHALL BE DUE AND PAYABLE THIRTY (30) CALENDAR DAYS AFTER RECEIPT OF PROPERLY PREPARED INVOICES ....................................................................................................................................................66 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................................................................................................................66 INCORRECT OR INCOMPLETE INVOICES WILL BE RETURNED BY PURCHASER TO VENDOR FOR CORRECTION AND REISSUE . .................................................................................................................................................................66 THE PURCHASER PURCHASE ORDER NUMBER MUST APPEAR ON ALL BILLS OF LADING, PACKAGES , AND CORRESPONDENCE RELATING TO THIS CONTRACT . ...........................................................................................66 PURCHASER SHALL NOT HONOR DRAFTS , NOR ACCEPT GOODS ON A SIGHT DRAFT BASIS ..........................................66 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 . .....................................................................................................66 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............67 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 .....................................................................................................................67 PURCHASER MAY COPY EACH ITEM OF SOFTWARE TO MULTIPLE HARD DRIVES OR NETWORK ...................................67 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 PURCHASER WITH DISASTER RECOVERY EXERCISES . PURCHASER IN ORDER TO ASSIST AGREES THAT PRODUCTION USE OF THE SOFTWARE AT THE DISASTER RECOVERY SITE (S) SHALL BE LIMITED TO TIMES WHEN P URCHASER ’S FACILITIES , OR ANY PORTION THEREOF , ARE INOPERABLE DUE TO EMERGENCY SITUATIONS ........67 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 P URCHASER OR OTHER USERS THAT ARE AGENCIES OF STATE GOVERNMENT AND OTHER TAX - SUPPORTED ENTITIES MAY PROVIDE SERVICES TO THE PUBLIC THROUGH INTERNET APPLICATIONS . SOFTWARE Page 3 of 95
  5. 5. 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....67 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 P URCHASER AS PROVIDED IN THIS CONTRACT AND THAT P URCHASER ’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 .........................................................68 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 P RODUCT . 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.........................................................................................................................................68 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 .............................................................................................................68 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 .................................................68 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 P URCHASER . 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.................................................................................................68 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 P REEXISTING 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 P REEXISTING 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.............................................................................................................69 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 Page 4 of 95
  6. 6. CONTRACT. THE WARRANTY IS REFERRED TO IN THIS CONTRACT AS THE “NO SURREPTITIOUS CODE WARRANTY.” 70 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 .....................................................................................................................................................70 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............................................................................70 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 .......................................................70 VENDOR SHALL DELIVER THE PRODUCTS ORDERED PURSUANT TO THIS CONTRACT PER MUTUALLY AGREED DELIVERY SCHEDULE . F OR ANY EXCEPTION TO THIS DELIVERY DATE , VENDOR MUST NOTIFY P URCHASER 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 . ..............................................................................................71 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 . ...............................71 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..................72 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 ..............................................................72 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 : 73 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...................................................................................................................................73 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...................................................................................................73 ON-CALL SUPPORT . IF A PROBLEM OCCURS THAT SIGNIFICANTLY IMPACTS PURCHASER’S USAGE OF THE SOFTWARE AND REMAINS UNIDENTIFIED OR UNRESOLVED AFTER P URCHASER 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 : .................................................................................................................................................................73 Advice and assistance in diagnosis and identification of Software errors or malfunctions......................73 On-site consultation on correction or detour of identified errors or malfunctions. .................................73 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 .......................................73 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 P URCHASER . 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 P URCHASER 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 ..................................73 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 Page 5 of 95
  7. 7. 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 . ......................................................................................................75 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 .....................................................................75 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 ........................................................................................75 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 ........................................................75 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 ....................75 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.......................................................................................76 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 .........76 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....................................................................................76 THE HEADINGS USED HEREIN ARE INSERTED FOR CONVENIENCE ONLY AND SHALL NOT CONTROL OR AFFECT THE MEANING OR CONSTRUCTION OF ANY OF THE SECTIONS ......................................................................................77 EACH OF THE DOCUMENTS LISTED BELOW IS, BY THIS REFERENCE , INCORPORATED INTO THIS CONTRACT AS THOUGH FULLY SET FORTH HEREIN . ...........................................................................................................................77 Schedules A;................................................................................................................................................77 Evergreen RFP IT211 dated July 22, 2003; ..............................................................................................77 Vendor’s Response to Evergreen IT211 dated September 14, 2006; ........................................................77 The terms and conditions contained on Purchaser’s purchase documents, if used; and..........................77 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...........................................................77 IN THE EVENT OF ANY INCONSISTENCY IN THIS CONTRACT, THE INCONSISTENCY SHALL BE RESOLVED IN THE FOLLOWING ORDER OF PRECEDENCE :..............................................................................................................77 Applicable federal and state statutes, laws, and regulations; ..................................................................77 Page 6 of 95
  8. 8. Sections of this Contract; ...........................................................................................................................77 Schedule A; .................................................................................................................................................77 Evergreen RFP IT211 dated September 14, 2006;.....................................................................................77 Vendor’s Response to Evergreen IT211 dated [date], 2006; ....................................................................77 The terms and conditions contained on Purchaser’s order documents, if used; and................................77 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...........................................................77 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 .........................................................................................79 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 ..........................................................79 THE AWARD OF THIS CONTRACT TO VENDOR IS NOT IN ANY WAY AN ENDORSEMENT OF VENDOR OR VENDOR’S PRODUCTS BY P URCHASER AND SHALL NOT BE SO CONSTRUED BY VENDOR IN ANY ADVERTISING OR OTHER PUBLICITY MATERIALS . ................................................................................................................................................79 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 .........................................................................79 ................................................................................................................................................................79 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 P URCHASER ’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 ...................................................................................................................................79 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 P URCHASER ’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 ................................79 VENDOR SHALL INCORPORATE IN ITS SUBCONTRACTS THIS SECTION ’S RECORDS RETENTION AND REVIEW REQUIREMENTS . ..........................................................................................................................................80 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 ..................................80 VENDOR , AT ITS EXPENSE , SHALL DEFEND, INDEMNIFY, AND SAVE PURCHASER HARMLESS FROM AND AGAINST ANY CLAIMS AGAINST P URCHASER THAT ANY P RODUCT AND/OR WORK PRODUCT SUPPLIED HEREUNDER , OR P URCHASER ’S USE OF THE P RODUCT 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:.......................................................................................................80 Page 7 of 95
  9. 9. 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........................................................80 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............80 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 P RODUCT 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 P RODUCT AND PROVIDE P URCHASER A REFUND. IN THE CASE OF WORK P RODUCT , VENDOR SHALL REFUND TO P URCHASER 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 .......................................................80 VENDOR HAS NO LIABILITY FOR ANY CLAIM OF INFRINGEMENT ARISING SOLELY FROM:..........................................80 Vendor’s compliance with any designs, specifications or instructions of Purchaser;..............................80 Modification of the Product and/or Work Product by Purchaser or a third party without the prior knowledge and approval of Vendor; or......................................................................................................80 Use of the Product and/or Work Product in a way not specified by Vendor; .........................................80 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 ....................................................................................................................82 THE MINIMUM ACCEPTABLE LIMITS SHALL BE AS INDICATED BELOW , WITH NO DEDUCTIBLE FOR EACH OF THE FOLLOWING CATEGORIES :.............................................................................................................................82 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; ..........................................................................................82 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; ..............................................................................................................82 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; ................................................................................................82 Umbrella policy providing excess limits over the primary policies in an amount not less than $3 million; ......................................................................................................................................................................82 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 ...................................................................82 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 ...................................................................................................................................82 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 .......................82 Page 8 of 95
  10. 10. 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 ..............................................................................................................................................82 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 ...................................................................83 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. ......................................................................................................................................................83 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 .. .83 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 ...........................................................................................................................................................83 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 P URCHASER 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 .................................................................................................................................85 ANY PURCHASER PROPERTY FURNISHED TO VENDOR SHALL , UNLESS OTHERWISE PROVIDED HEREIN OR APPROVED BY PURCHASER , BE USED ONLY FOR THE PERFORMANCE OF THIS CONTRACT.............................................................85 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 .........................................................................................85 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 ...............85 VENDOR SHALL SURRENDER TO PURCHASER ALL PURCHASER PROPERTY PRIOR TO COMPLETION , TERMINATION , OR CANCELLATION OF THIS CONTRACT ................................................................................................................85 ALL REFERENCE TO VENDOR UNDER THIS SECTION SHALL ALSO INCLUDE VENDOR’S EMPLOYEES , AGENTS , OR SUBCONTRACTORS ........................................................................................................................................85 55. VENDOR’S PROPRIETARY INFORMATION....................................................................................................85 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 .......................................................................................................................87 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 ....................................................................................................................87 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..............................................................................................................................................87 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....................87 Each party shall bear the cost for its panel member and share equally the cost of the third panel member........................................................................................................................................................87 BOTH PARTIES AGREE TO BE BOUND BY THE DETERMINATION OF THE DISPUTE RESOLUTION PANEL . ......................87 BOTH PARTIES AGREE TO EXERCISE GOOD FAITH IN DISPUTE RESOLUTION AND TO SETTLE DISPUTES PRIOR TO USING A DISPUTE RESOLUTION PANEL WHENEVER POSSIBLE . ........................................................................................87 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 ............................................................................................................................87 Page 9 of 95
  11. 11. 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 .....................................................................................................................................................87 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 ....................................................................................................................87 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 ....................................................................................................87 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 .......................................................................................................................89 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 .................................................89 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 .. . .89 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 .................................................................................................................................89 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..............................................................89 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 ........................................................89 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.................................................................................................90 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 ................................91 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 .................91 Page 10 of 95
  12. 12. 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 P URCHASER 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............................................................................91 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 .........................................................91 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 .....................................................................................................................................................91 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 ..................................................................................................................91 ELIGIBILITY OF OTHER INSTITUTIONS TO PURCHASE...........................................................91 TERM & T&C..........................................................................................................................................91 Page 11 of 95
  13. 13. Web Content Management System Request 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. 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 Page 12 of 95
  14. 14. 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: •Windows 2003 Server •Redhat Linux Page 13 of 95
  15. 15. 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. Page 14 of 95
  16. 16. 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 Robinson Information Technology Buyer L1402 2700 Evergreen Parkway NW Olympia, WA 98505 robinsgm@evergreen.edu Phone:(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, 2006 Vendor Pre-Bid Telephone Conference – 9:00am Pacific Time, Tuesday, Vendor must email contact information no September 26, 2006 later than 4:30pm Pacific Time, Monday, September 25,to robinsgm@evergreen.edu in order to receive the conference dial-in information. Written Vendor Questions due 9:00am Pacific Time, October 9, 2006 Evergreen’s Written Response to Questions 4:30pm Pacific Time, October 12, 2006 RFP Response Due 4:30pm Pacific Time, October 24, 2006 RFP Scoring October 25 – November 2, 2006 Vendor Demonstrations November 13 – 17, 2006 Page 15 of 95
  17. 17. Announce Successful Vendor November 28, 2006 Contract Negotiations December 4 – 15, 2006 Go 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 College Attn: Kathleen Haskett – Purchasing Manager RFP IT211 Web Content Management System Purchasing Office: Library 1125 2700 Evergreen Parkway NW Olympia, 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 Letter Section 2: Administrative Requirements Section 3: Web Content Management System Requirements, Functions, and Features Section 4: Technical Requirements and Capabilities Section 5: Vendor Considerations Section 6: Cost Proposal Section 7: Copy of sample maintenance agreement (including costs) and warranty 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 Page 16 of 95
  18. 18. 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 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. Page 17 of 95
  19. 19. 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. 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. Page 18 of 95
  20. 20. 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. 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. Page 19 of 95
  21. 21. 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 A mandatory requirement is a minimum need that must be met by the Requirement: 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. 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 Page 20 of 95
  22. 22. 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. 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. Page 21 of 95
  23. 23. 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 Complaints A complaint may be made before a vendor responds to a solicitation document if the vendor believes that the document unduly constrains competition or contains 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 Protest Page 22 of 95

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