Request for Quotes USAC-IT FireEye Anti-Malware Appliance and Support

Transcription

1 Request for Quotes USAC-IT FireEye Anti-Malware Appliance and Support This is a request for quotes (RFQ). The purpose of this procurement is to purchase FireEye Anti- Malware appliance and support services. See Attachment 1. This announcement constitutes the only solicitation; no separate written solicitation will be issued. The solicitation number is USAC-IT Contractor shall provide the hardware and software support services at the fixed prices set forth in Attachment 1. The Contractor shall provide the support services for the period stated in Attachment 1, Quote Form. Contractor must be an authorized FireEye Partner/Reseller capable of ordering, delivering and providing the hardware and support services at the time of award selection. Contractor shall provide USAC with the complete (not partial) version specifications and quantities of the required products and services identified on Attachment 1. Most recent commercially available versions and releases must be supplied. New, not re-furbished or previously used, items must be supplied. Contracting Office Address: 2000 L Street, NW, Suite 200 Washington, DC Place(s) of Performance/Location of Delivery: 2000 L Street, NW, Suite 200 Washington, DC Primary Point of Contact: Jim Cosson Manager of Purchasing Universal Service Administrative Company 2000 L Street, NW, Suite 200 Washington, DC USAC is not a Federal agency, a government corporation, a government controlled corporation or other establishment in the Executive Branch of the United States Government. USAC is not a contractor to the Federal Government. The contract awarded as a result of this RFQ will not be a subcontract under a Federal prime contract. However, USAC conducts its procurements in accordance with the terms of a Memorandum of Understanding with the FCC, which requires USAC to adhere to the following provisions from the Code of Federal Regulations, 2 C.F.R , , and App. II to C.F.R. Part 200 (collectively procurement regulations). Contractor shall comply with the procurement regulations and all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this Agreement, including USAC s Standard Terms and Conditions. See Attachment 3. 1

2 Offeror shall complete and submit the representations set forth and included in Attachment 2. Offeror s quotes should include the following: 1. Solicitation number. 2. A completed and signed copy of the Quote Form included as Attachment A description of goods and/or services being offered in sufficient detail to evaluate compliance with the requirements in the solicitation. 4. Statement(s)/evidence establishing that Offeror is an authorized partner or reseller of FireEye products and services. 5. Name, address and telephone number of the Offeror. 6. A complete copy of the representations and certifications in Attachment Company TIN and Duns number. Although the quote form breaks out different items, this is a firm-fixed-price contract and, ultimately, the total firm-fixed-price amount is the amount taken into consideration when reviewing the quotes. The quote form provides for the following: 1. A breakdown of the components of the quote on a line item basis, if applicable. 2. All applicable federal, state, and local sales, use, and excise taxes. 3. All shipping costs, if applicable. 4. All costs for configuration of equipment, if applicable. 5. All other costs (i.e. labeling, packaging, packing, loading, storage, insurance, etc.). 6. All blanks shall be filled in accordingly. Any alteration or erasure must be initialed by the signer of the quote. Please quotes to rfp@usac.org. Proposals must be received by USAC no later than Friday, March 27, 2015 at 9:00 AM EDT. USAC will evaluate all Quotes that are submitted in compliance with the requirements of this RFQ. USAC will issue a purchaser order to the responsible Offeror submitting the lowest priced technically acceptable Quote. A responsible offeror will be deemed technically acceptable if: (1) it is an authorized FireEye partner or reseller at the time of submission of its quote and at time of award; and (2) it proposes to provide, and has the apparent capability to provide, all the items identified in Attachment 1 within the timeframes and in accordance with the terms of this RFQ, including all attachments hereto. 2

3 Attachment 1 USAC Quote Form Solicitation No. USAC-IT This Quote is submitted by an authorized representative of the undersigned company ( Company ) and is valid for 90 days from the date set forth below. Company agrees to provide the items at the prices set forth in this Quote in accordance with the terms and conditions of Contract No. USAC-IT Submitted By: Company Legal Name: By Authorized Representative: Signature: Print Name: Title: DUNS #: Date: Item ID Description UOM Qty. Unit Price Extended Price HW-3400 EX EX 3400 appliance EA 1 Support 3400 EX GovUS 1Y EX 3400 Support Government US 1 Year *Period of performance shall be 1 year from delivery date EX 3400 Dynamic Threat EA 1 DTI 3400 EX 2- EA 1 way 1Y sub Intelligence cloud 2-way 1 Year Attach/URL EX Attachment/URL engine 1 Year EA 400 engine EX 1Y HW-4000HX HX 4000 appliance EA 1 HX Endpoint HX Endpoint Agent Software EA 400 Agent nodes nodes Support HX nodes GovUS 1Y HX nodes Support Government US 1 Year *Period of performance shall be 1 year from delivery date EA 400 *Note: In addition to completed Quote Form, please include formal quote with company letterhead. Sub-Total: Applicable Taxes (e.g. sales tax-usac is required to pay 5.75% Washington, DC sales tax): Shipping (if applicable): Lead time from date of purchase: Other (describe): Accepted by USAC: Total Firm-Fixed Price:

4 Signature: Print Name: Title: Contract Effective Date:, 2015 Total Firm-Fixed Price:

5 ATTACHMENT 2 Offeror Representations and Certifications Offeror shall complete the representations and certifications set forth below and return with its proposal. (a) Certification Regarding Responsibility Matters. The Offeror certifies, to the best of its knowledge and belief, that the Offeror and/or any of its principals, and any proposed subcontractors: (1) Are, are not presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any Federal agency; (2) Have, have not, within a three-year period preceding this offer, been convicted of or had a civil judgment rendered against them for: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a Federal, state or local government contract or subcontract; violation of Federal or state antitrust statutes relating to the submission of offers; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, violating Federal criminal tax laws, or receiving stolen property; (3) Are, are not presently indicted for, or otherwise criminally or civilly charged by a Government entity with, commission of any of these offenses enumerated in paragraph (a)(2) of this clause; and (4) Have, have not, within a three-year period preceding this offer, been notified of any delinquent Federal taxes in an amount that exceeds $3,000 for which the liability remains unsatisfied. i. Taxes are considered delinquent if both of the following criteria apply: (A) The tax liability is finally determined. The liability is finally determined if it has been assessed. A liability is not finally determined if there is a pending administrative or judicial challenge. In the case of a judicial challenge to the liability, the liability is not finally determined until all judicial appeal rights have been exhausted. (B) The taxpayer is delinquent in making payment. A taxpayer is delinquent if the taxpayer has failed to pay the tax liability when full payment was due and required. A taxpayer is not delinquent in cases where enforced collection action is precluded. ii. Examples. 1

6 (A) The taxpayer has received a statutory notice of deficiency, under I.R.C. 6212, which entitles the taxpayer to seek Tax Court review of a proposed tax deficiency. This is not a delinquent tax because it is not a final tax liability. Should the taxpayer seek Tax Court review, this will not be a final tax liability until the taxpayer has exercised all judicial appeal rights. (B) The IRS has filed a notice of Federal tax lien with respect to an assessed tax liability, and the taxpayer has been issued a notice under I.R.C entitling the taxpayer to request a hearing with the IRS Office of Appeals contesting the lien filing, and to further appeal to the Tax Court if the IRS determines to sustain the lien filing. In the course of the hearing, the taxpayer is entitled to contest the underlying tax liability because the taxpayer has had no prior opportunity to contest the liability. This is not a delinquent tax because it is not a final tax liability. Should the taxpayer seek tax court review, this will not be a final tax liability until the taxpayer has exercised all judicial appeal rights. (C) The taxpayer has entered into an installment agreement pursuant to I.R.C The taxpayer is making timely payments and is in full compliance with the agreement terms. The taxpayer is not delinquent because the taxpayer is not currently required to make full payment. (D) The taxpayer has filed for bankruptcy protection. The taxpayer is not delinquent because enforced collection action is stayed under 11 U.S.C. 362 (the (b) Taxpayer Identification Number (TIN). (Not applicable if the Offeror is required to provide this information to the SAM database to be eligible for award.) (1) All Offerors must submit the information required in paragraphs (b)(2) through (b)(4) of this provision. (2) Taxpayer Identification Number (TIN). TIN:. TIN has been applied for. TIN is not required because: Offeror is a nonresident alien, foreign corporation, or foreign partnership that does not have income effectively connected with the conduct of a trade or business in the United States and does not have an office or place of business or a fiscal paying agent in the United States; Offeror is an agency or instrumentality of a foreign government; Offeror is an agency or instrumentality of the Federal Government. (3) Type of organization. Sole proprietorship; Partnership; Corporate entity (not tax-exempt); Corporate entity (tax-exempt); 2

7 Government entity (Federal, State, or local); Foreign government; International organization per 26 CFR ; Other. (4) Common parent. Offeror is not owned or controlled by a common parent; Name of common parent:. (c) Prohibition Against Obtaining Source Selection Information or Contractor Bid or Proposal Information (1) Definitions. As used in this provision: Contractor bid or proposal information means any of the following information submitted to USAC as part of or in connection with a bid or proposal to enter into a USAC procurement contract, if that information has not been previously made available to the public or disclosed publicly: (A) Cost or pricing data (as defined in FAR 2.101). (B) Indirect costs and direct labor rates. (C) Proprietary information about manufacturing processes, operations, or techniques marked by the contractor in accordance with applicable law or regulation. (D) Information marked by the contractor as contractor bid or proposal information in accordance with applicable law or regulation. (E) Information marked by the contractor as confidential, provided such information meets the definition of Confidential Information in Attachment 3, section 26(a). Source selection information means any of the following information that is prepared for use by USAC for the purpose of evaluating a bid or proposal to enter into a USAC procurement contract, if that information has not been previously made available to the public or disclosed publicly: (A) Bid prices submitted in response to a USAC invitation for bids, or lists of those bid prices before bid opening. (B) Proposed costs or prices submitted in response to a USAC solicitation, or lists of those proposed costs or prices. (C) Source selection plans. (D) Technical evaluation plans. 3

8 (E) Technical evaluations of proposals. (F) Cost or price evaluations of proposals. (G) Competitive range determinations. (H) Rankings of bids, proposals, or competitors. (I) Reports and evaluations of source selection panels, boards, or advisory councils. (J) Other information marked as Source Selection Information (2) Representation. The Offeror represents, by submission of this offer, that it has not knowingly obtained, and will not knowingly obtain, contractor bid or proposal information or source selection information before the award of a USAC procurement to which the information relates. (d) Prohibition Against Contractor Gratuities to USAC Personnel The Offeror represents, by submission of this offer that it has not: i. Offered or given a gratuity (e.g., an entertainment or gift) to an officer, official, or employee of USAC; and ii. Intended, by the gratuity, to obtain a contract or favorable treatment under a contract. (e) Payments to Influence USAC Transactions By submission of its quote, the Offeror certifies to the best of its knowledge and belief that no Federal appropriated funds (including USF funds) have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of USAC or the Federal Communications Commission, a Member of Congress, an officer or employee of Congress or an employee of a Member of Congress on his or her behalf in connection with the award of any resultant contract. (f) Certificate of Independent Price Determination By submitting its quote, the Offeror certifies in connection with this solicitation: i. The prices proposed have been arrived at independently, without consultation, communication, or agreement, for the purpose of restricting competition, as to any matter relating to the prices with any other Offeror or with any competitor; 4

9 ii. iii. Unless otherwise required by law, the prices proposed have not been and will not be knowingly disclosed by the Offeror before award of a contract, directly or indirectly to any other Offeror or to any competitor; and No attempt has been made or will be made by the Offeror to induce any other person or firm to submit or not submit a proposal for the purpose of restricting competition. (g) Anti-Kickback Certification The Offeror by signing this proposal hereby certifies that Offeror has not: solicited, accepted, or attempted to accept any kickback from any subcontractor(s) included in its proposal; or included, directly or indirectly, the amount of any kickback in any prices stated in its pricing proposal. For purposes of this representation, kickback means any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind which is provided, directly or indirectly, to Offeror, or any Offeror employee, subcontractor, or subcontractor employee, for the purpose of improperly obtaining or rewarding favorable treatment in connection with a contract awarded by USAC or in connection with a Subcontract relating to a contract awarded by USAC. 5

10 ATTACHMENT 3 CONTRACT TERMS AND CONDITIONS 1. Inspection/Acceptance. Contractor shall only tender for acceptance those items that conform to the requirements of this Contract. USAC reserves the right to inspect or test any supplies or services that have been tendered for acceptance. USAC may require repair or replacement of nonconforming supplies or re-performance of nonconforming services at no increase in contract price. If repair/replacement or re-performance will not correct the defects or is not possible, USAC may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. USAC must exercise its post-acceptance right: (a) Within a reasonable time after the defect was discovered or should have been discovered; and (b) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item. 2. Assignment. With the exception of the assignment of rights to receive payment, neither this Contract, nor any right or interest hereunder, shall be assigned or delegated by Contractor without the prior written agreement of USAC. Any purported assignment or delegation that violates this section is void. Contractor or its assignee may assign its rights to receive payment due as a result of performance of this Contract to a bank, trust company, or other financing institution, including any Federal lending agency upon submitting a notice of assignment in a form acceptable to USAC signed by an authorized officer of Contractor and accompanied by a true copy of the instrument of assignment executed by Contractor and the assignee. In the event USAC s participation in administering the USF support mechanisms should end, USAC may, at no additional cost, assign this Contract to the FCC or other entity that assumes responsibility for administration of the Fund. 3. Changes. Changes in the terms and conditions of this Contract may be made only by written agreement of the parties. 4. Applicable Laws. Contractor shall comply with the Procurement Regulations to the extent applicable to this Contract, and with all applicable Federal, State and local laws, executive orders, rules and regulations. 5. Definitions (a) Unless otherwise defined herein or in any attachment hereto, terms capitalized for other than grammatical purposes and used herein or in any attachment hereto shall have the meanings set forth below. (b) Contract means the legally binding, written agreement between USAC and Contractor that shall consist of the Synopsis, the signed Quote Form (Attachment 1), Offeror Certifications and Representations (Attachment 2), the Contract Terms 1

11 and Conditions (Attachment 3), and, if provided, Contractor quote of company letterhead. (c) Contracting Officer means the authorized USAC representative designated to serve as the Contracting Officer for this procurement: Jim Cosson. USAC may change its designated Contracting Officer by written notice to Contractor. (d) Contractor Software means Software used by Contractor for which Contractor has previously acquired all ownership rights. Contractor Software does not include Third-party Software or USAC Software. (e) Data means recorded information, regardless of form or the media on which it may be recorded. The term includes, but is not limited to, technical data and computer software. (f) Disabling Code means Software code that is included in software to permit the owner of the software to disable the operations performed by the software at the remote command of such owner, or at a predetermined time or upon predetermined circumstances. (g) Effective Date means the date identified as the Contract Effective Date, in Attachment 1, which is the date upon which USAC accepts Contractor s Quote. (h) Electronic Format means deliverables and data created, by means other than scanning, using an industry standard, commercially available software program. (i) Including shall mean including without limitation. This term is as defined, whether or not capitalized in this Contract (j) Malicious Code means Software code such as computer viruses, worms, trojan horses that is inserted into software and that is deliberately designed to damage data, provide unauthorized access to USAC Information, or produce an unexpected and unwanted result or computer operation. (k) Offeror means the entity submitting a proposal in response to the Solicitation. (l) Schedule means Synopsis/Solicitation and the signed Attachment 1. (m) Services means the services, functions and responsibilities described in this Contract as they may be supplemented, enhanced, modified or replaced. (n) Software means computer programs that allow or cause a computer to perform a specific operation or series of operations, together with all modifications to, or enhancements (derivative works) thereof. (o) Subcontractor means any partner, joint venture, subcontractor, teaming member or partner, or any affiliated or unaffiliated company that has an agreement of any 2

12 kind with Contractor and that will perform any services or provide any Supplies required by the Contract. (p) Supplies means the deliverables and end items to be provided by Contractor to USAC under the terms of this Contract. (q) Third-party Software means Software that is provided under license or lease by a third party to Contractor or USAC. Third-party Software includes any Subcontractor Software that is not USAC Software. (r) USAC Confidential Information has the meaning set forth in section 26, below. (s) USAC Information means all written, electronically, magnetically or optically stored, or printed material, provided to Contractor by USAC for use in the performance of this Contract, including without limitation, business and company personnel information (not including information relating only to Contractor s or any subcontractor s business or operations) that is created, modified, reproduced or maintained by USAC. USAC Information also includes information concerning USAC s business, employees or operations that is collected, developed or recorded by Contractor in the performance of the Contract, including without limitation, program procedures and program specific information that is provided to Contractor by USAC or a Stakeholder in the course of performance of the Contract or that is created or derived from such information. (t) USAC Software means (1) Software developed by USAC or title to which was acquired by USAC from a third party, or (2) Software first produced in the performance of this Contract. (u) Work Made for Hire has the meaning set forth in 17 U.S.C Excusable delays. Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of Contractor and without its fault or negligence such as, acts of God or the public enemy, acts of USAC, acts of the United States Government in its sovereign capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. Contractor shall notify USAC in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to USAC of the cessation of such occurrence. 7. Invoice (a) Contractor shall submit an original invoice and three copies (or electronic invoice, if authorized) to the address designated in the contract to receive invoices. An invoice must include: 3

13 (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) Name and address of Contractor; Invoice date; Contract number, contract line item number and, if applicable, the order number; Description of the services and/or deliverables for which payment is sought; Terms of any discount for prompt payment offered; Name and address of official to whom payment is to be sent; Name, title, and phone number of person to notify in event of defective invoice; and Taxpayer Identification Number (TIN). Contractor shall include its TIN on the invoice only if required elsewhere in this contract. Electronic funds transfer (EFT) banking information. Contractor shall include EFT banking information on the first invoice. USAC shall not be liable for uncompleted or erroneous transfers which occur as a result of Contractor s providing incorrect or out of date EFT information. (b) Contractor may submit invoices for payment after USAC accepts delivery of the items identified in Attachment 1 in accordance with the terms of the Contract. 8. Payment. (a) Items and services accepted. Payment shall be made for items and services required by the Contract and accepted by USAC that have been delivered to the delivery destination(s) set forth in this Contract, provided that the Contractor has submitted an invoice that complies with the Invoices clause (section 7). (b) Discount. In connection with any discount offered for early payment, time shall be computed from the date of the invoice. For the purpose of computing the discount earned, payment shall be considered to have been made on the date which appears on the payment check or the specified payment date if an electronic funds transfer payment is made with prompt payment. USAC will pay for accepted items and services within 30 calendar days of receipt of Contractor s invoice provided such invoice is proper and submitted in accordance with terms set forth herein. (c) Other Costs. Unless specified in this section 8, any other direct or indirect costs incurred by Contractor in the performance of this Contract will not be paid by USAC. 4

14 9. Termination for USAC s convenience. USAC reserves the right to terminate this Contract, or any part hereof for its sole convenience. Subject to the terms of this Contract, the Contractor shall be paid a percentage of the Contract price, as applicable, reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges Contractor can demonstrate to the satisfaction of USAC using its standard record keeping system, have resulted from the termination. Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided. In the event of a partial termination for cause or for convenience, Contractor shall continue the work not terminated. 10. Stop Work. Upon receipt of a notice of termination (for cause or convenience), unless otherwise directed by USAC, Contractor shall: (A) stop work, and cause its, subcontractors, consultants or agents to stop work, to the extent specified in said notice; and (B) subject to the prior written approval of USAC, transfer title to USAC and deliver to USAC, or as directed by USAC, all materials, Data, work in process, completed work and other USAC Information or material produced in connection with, or acquired for, the work terminated. 11. Termination for cause. Either party may terminate this Contract, or any part hereof for cause in the event of any default by the defaulting party, or if the defaulting party fails to comply with any Contract terms and conditions, or if Contractor fails to provide USAC, upon request, with adequate assurances of future performance. In the event of termination for cause, USAC shall not be liable to Contractor for any amount for supplies or services not accepted. The terminating party shall have any and all rights and remedies provided by law and the defaulting party shall be liable to the non-defaulting party for damages arising out of the default. If it is determined that USAC improperly terminated this Contract for cause, such termination shall be deemed a termination for convenience. (a) If USAC terminates this Contract for cause in whole or in part, it may acquire, under commercially reasonable terms and conditions, the terminated supplies and/or services from another source and Contractor will be liable to USAC for any reasonable excess costs incurred by USAC together with any other damages incurred because of the termination. (b) To the extent requested in writing by USAC on partial or complete termination for cause, Contractor will, to the extent permitted by the terms of the subcontract, assist with transition and assignment to USAC of any subcontract between Contractor and any subcontractor that is dedicated to providing the terminated Supplies/Services to USAC. 12. Limitation of liability. Except as otherwise stated in this Contract and except in cases of gross negligence or willful misconduct, in no event: (1) shall either party be liable for special, indirect, incidental, or consequential damages, including, without limitation, lost profits, even if it has been advised of the possibility of such damages; and (2) shall either party s liability to the other party for all matters arising out of the Contract exceeds two times the total fixed price of the Contract. 5

15 13. Record Retention. Contractor shall make available at its offices at all reasonable times the records, materials, and other evidence for examination, audit, or reproduction, until three years after final payment under this Contract. 14. Proprietary Rights and Software (a) Data First Produced in Performance of this Contract. USAC shall have exclusive ownership of all Data first produced in the performance of this Contract and, with regard to such Data, USAC shall have the rights to use, disclose, reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, in any manner and for any purpose, and to have or permit others to do so. Notwithstanding any provision in this Contract that states otherwise, Contractor hereby assigns to USAC the copyrights in all Data first produced by Contractor in the performance of this Contract, including, but not limited to, any Stakeholder information, including but not limited to reports, notes, or other deliverables. Contractor agrees to execute any additional documents which may be necessary to vest ownership of all such copyrights in USAC. USAC s rights in Data first produced in performance of this Contract are transferrable to any future USF administrator or the FCC at no cost in the event USAC s participation in administering the USF ends. Except as otherwise specifically provided for in this Contract, the Contractor shall not use, release, reproduce, distribute, or publish any Data first produced in the performance of this Contract, nor authorize others to do so, without prior written permission of USAC. (b) Software Not First Produced in the Performance of this Contract. Contractor represents and warrants that all Software that is not first produced in the performance of this Contract and that is acquired or delivered by Contractor under this Contract, or incorporated in any USAC Software, USAC web sites, USAC databases shall be licensed directly to USAC and such license shall allow the Software to be: (i) (ii) (iii) (iv) Used or copied for use by USAC with the computer(s) for which it was acquired, including use at any USAC installation to which the computer(s) may be transferred; Used or copied by USAC for use with a backup computer if any computer for which it was acquired is inoperative; Reproduced by USAC for safekeeping (archives) or backup purposes; Modified, adapted, or combined with other computer software, provided that the modified, adapted, or combined portions of the derivative software incorporating any of the delivered, commercial computer software shall be subject to same restrictions set forth in this Contract; 6

16 (v) (vi) (vii) Disclosed to and reproduced for use by support service contractors or their subcontractors, subject to the same restrictions set forth in this contract; Used or copied for use with a replacement computer, and Transferred to any future USF administrator or the FCC at no cost in the event USAC s participation in administering the USF ends. (c) Data Not First Produced in the Performance of this Contract. The Contractor shall not, without the prior written permission of the Contracting Officer, incorporate in Data delivered under this Contract any Data not first produced in the performance of this Contract unless the Contractor: (i) Identifies the Data; and (ii) Grants to USAC, or acquires on USAC behalf, a license of the same scope as set forth in paragraph (a) of this section. (d) Third-party Software supplied by USAC. USAC grants to Contractor or, at Contractor s request, to one of its subcontractors, to the extent authorized by the Third-party Software license, the same rights of access and use during the term of the Third-party Software held by USAC, for the sole purpose of performing the Contract. (e) Software Developed by Contractor. All software developed by Contractor under this Contract, whether developed solely by the Contractor or its Subcontractors, or jointly by the Contractor, its Subcontractors or other third parties, shall be considered Works Made for Hire under 17 U.S.C. 101 and shall include: (i) all modifications to, or enhancements (derivative works) of, Software first developed during performance of this Contract by Contractor or its Subcontractors; and (ii) any customization and configuration of Third-Party Software. To the extent any of the software developed by Contractor or its Subcontractors is not deemed a Work Made for Hire by operation of law, Contractor hereby irrevocably assigns, transfers and conveys to USAC without further consideration all of its rights, title and interest in such software, including all rights of patent, copyright, trade secret or other proprietary rights in such materials. Contractor acknowledges that USAC and the assigns of USAC shall have the right to obtain and hold in their own name any intellectual property rights in and to such work product. Contractor shall reasonably and diligently assist USAC, at no additional cost to USAC, in perfecting such ownership rights. Except as otherwise specifically provided for in this Contract, the Contractor shall not use, release, reproduce, distribute, or publish any Software first developed in the performance of this contract, nor authorize others to do so, without written permission of the Contracting Office (f) Malicious Code. Contractor represents and warrants that it shall prevent the introduction and proliferation of any Malicious Code into USAC s computer environment. In the event any Malicious Code is found in USAC s computer environment and such Malicious Code originated in equipment, Software, or services provided by Contractor or originated from any person for whom Contractor is responsible, Contractor shall at its own expense take all necessary 7

17 efforts to: (a) promptly remove such Malicious Code and restore or recover lost or damaged USAC Information to the extent possible, caused by such Malicious Code using generally accepted data restoration techniques including the use of the most recently available backup unaffected by the Malicious Code and (b) eliminate, and reduce the effects of, the Malicious Code. (g) Disabling Code. Contractor shall not introduce into any Software operating in USAC s computer environment, or permit to be invoked, any Disabling Code. (h) Contractor shall obtain from its subcontractors all Software and Data, and all rights therein, necessary to fulfill Contractor s obligations to USAC under this Contract. (i) Residual Knowledge. Nothing contained in this Contract shall restrict either party from the use of any ideas, concepts, know-how, or techniques relating to the services which either party, individually or jointly, develops or discloses under this Contract, provided that in doing so such party does not breach its obligations confidentiality or security or infringe the intellectual property rights of the other party or third parties who have licensed or provided materials to the other party. However, neither this Contract nor any disclosure made hereunder grants any license to either party under any patents or copyrights of the other party 15. Insurance. If any part of this Agreement involves Consultant's performance at any place where USAC conducts operations, or with material or equipment furnished to Consultant by USAC, Consultant shall take all necessary precautions to prevent injury to persons or property. Consultant shall maintain public liability, personal injury, and property damage insurance and employer's liability and compensation insurance, in an amount required by law or appropriate for the industry, whichever is greater, to protect USAC from said risks and from any statutory liabilities whatsoever arising therefrom. Consultant shall produce evidence of such insurance upon request by USAC. 16. Notices (a) Except as otherwise specified in this Contract, any notice, demand for information, consent, approval or documents required or authorized by this Contract to be given to a party shall be given in writing and shall be: (i) personally delivered, (ii) mailed by registered or certified mail (return receipt requested) postage prepaid, (iii) sent by overnight delivery service (with a receipt for delivery), (iv) sent by facsimile with a signed acknowledgement of receipt by return facsimile, or (v) sent by electronic mail with a confirmation of receipt returned by recipient s electronic mail server to such party at the following address. For USAC Jim Cosson Manager of Purchasing Universal Service Administrative Company 8 For Contractor See Attachment 1 Quote Form

18 2000 L Street, NW Suite 200 Washington, DC (202) jcosson@usac.org With a copy to: With a copy to: David A. Capozzi General Counsel Universal Service Administrative Company 2000 L Street, NW Suite 200 Washington, DC Telefax: Telephone: dcapozzi@usac.org (b) Each party s designation of such person and/or address may be changed at any time by such party upon written notice given pursuant to the requirements of this section. A notice served by mail shall be effective upon receipt. 17. Patent indemnity. Contractor shall indemnify and defend USAC and its officers, employees and agents against any and all claims and liability, including attorney s fees and other costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of the performance of this Contract, provided USAC notifies Contractor of such claims and proceedings. 18. Gratuities. USAC may terminate the Contractor s right to proceed, and pursue any remedy available in equity or law, if the USAC Contracting Officer determines that Contractor, its agent, or another representative offered or gave a gratuity (e.g., an entertainment or gift) to an officer, official, or employee of USAC; and intended, by the gratuity, to obtain a contract or favorable treatment under a contract. 19. Extension of Contract Term. USAC may require continued performance of any Contract services within the limits and at the rates specified in the Contract. USAC may extend the services more than once, but the total extension of performance hereunder shall not exceed six months. The Contracting Officer may exercise the option by written notice to the Contractor within 10 days prior to expiration of the then current term. 20. Subcontracting with Debarred or Suspended Companies. The Federal Government suspends or debars companies to protect the Government s interests. Contractor shall not enter into any subcontract with a company or entity that is debarred, suspended, or proposed for debarment or suspension by any Federal executive agency unless there is a compelling reason to do so. Contractor shall review the System for Award Management (SAM) for suspension or debarment status of proposed subcontractors. See 9

19 21. Choice of Law/Consent to Jurisdiction (a) This Contract shall be governed by and construed in accordance with the laws of the District of Columbia without regard to any otherwise applicable principle of conflicts of laws. Contractor agrees that all actions or proceedings arising in connection with this Contract shall be litigated exclusively in the State and Federal courts located in the District of Columbia. The choice of venue is intended by the parties to be mandatory, thereby precluding the possibility of litigation between the parties with respect to or arising out of this Contract in any jurisdiction other than that specified in this paragraph. Each party hereby waives any right to assert the doctrine of forum non conveniens or similar doctrine or to object to venue and agrees that the courts in the District of Columbia shall have in personam jurisdiction over each of them for the purpose of disputes relating to this Contract. (b) Contractor shall submit all requests for equitable adjustment, claims or other disputes to the Contracting Officer for informal resolution prior to initiating any action in a court of appropriate jurisdiction. The parties shall use good faith efforts to resolve all disputes informally without the need for litigation. Failure of the parties to this Contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this Contract shall be resolved in the courts of appropriate jurisdiction sitting in the District of Columbia. Contractor shall proceed diligently with performance of this Contract, pending final resolution of any dispute arising under the Contract. 22. Invalidity of any Provision. It is the intent of the parties that the provisions of this Contract will be enforced to the fullest extent permissible, but that the unenforceability of any provision will not render unenforceable or impair the remainder of this Contract, which will be deemed amended to delete or modify, as necessary, the invalid or unenforceable provisions. The parties further agree to negotiate replacement provisions for any unenforceable term that are as close as possible to the original term and to change such original term only to the extent necessary to render the same valid and enforceable. 23. Waiver. The waiver by either party hereto of a breach of any provision of this Contract shall not operate or be construed as a waiver of any subsequent breach by either party. 24. Public Statements. Neither Contractor nor its subcontractors shall issue any public statement relating to or in any way disclosing any aspect of this Contract without the prior written consent of USAC. Both Contractor and any subcontractors must refrain from advocating policy positions with respect to federal universal service matters. 25. Shipment/Delivery. Terms of shipping are F.O.B. at USAC's delivery location unless otherwise noted in this Contract. If, in order to comply with the required delivery date, Contractor must ship by a more expensive means than that specified in this Contract, Contractor shall bear the increased transportation costs resulting therefrom 10

20 unless the necessity for such shipment change has been caused by USAC. If any Supplies are not delivered by the date specified herein, USAC reserves the right, without liability, to charge Contractor for any loss incurred. Contractor shall notify USAC in writing promptly of any actual or potential delays (however caused) which may delay the timely performance of this Contract. The risk of loss or damage to the Supplies provided under this Contract shall remain with Contractor until, and shall pass to USAC upon delivery of the supplies to USAC at the destination specified in the Contract. 26. Confidential Information (a) Confidential Information. Confidential Information includes information, Data, material, or communications in any form or format, whether tangible or intangible (collectively referred to hereafter as "Information"), that contains, reflects, or is derived from or based upon, or is related to: (1) Personally Identifiable Information (PII), as defined by NIST Special Publication ; (2) Management, business or financial Information of USAC or a USF stakeholder, including proprietary Information, trade secrets or commercial Information, that has not previously been disclosed; (3) Source Selection Information as defined by FAR 2.101, including Information related to the development of statements of work or evaluation criteria for USAC or FCC procurements; (4) Information prohibited by any law or regulation from disclosure, including any copyrighted or trademarked information; (5) Information concerning USAC relationships with financial institutions; (6) Information regarding or submitted in connection with an audit or investigation of a USF stakeholder, USAC, a USAC employee or contractor; (7) Information to which USAC, the FCC, or any other government agency might assert a claim of privilege or confidentiality, including but not limited to attorney-client communications and work product; (8) Information marked to indicate disclosure limitations such as Confidential Information, proprietary," "privileged," "not for public disclosure," etc.; and (9) Information received from, or submitted to, the FCC in connection with the performance of the Contract. (b) Non-Disclosure/Use/Irreparable Harm. During performance of this Contract and at all times thereafter, one the parties may disclose Confidential Information to the other party ( Recipient ). The Recipient shall maintain the confidentiality of all Confidential Information and prevent its unauthorized disclosure, publication, dissemination, destruction, loss, or alteration. Recipient shall only use Confidential Information for a legitimate business purpose of USAC and in the performance of this Contract. Recipient acknowledges that the misappropriation, unauthorized use, or disclosure of Confidential Information would cause irreparable harm to party disclosing the Confidential Information and the entities affiliated with USAC programs. (c) Employee Access to Confidential Information. Recipient agrees that it will disclose Confidential Information to employees and subcontractors only as necessary for the performance of this Contract, and only to the extent necessary to discharge their duties as required by this Contract. As a pre-condition to access to 11

21 Confidential Information, Recipient shall require each of its employees and subcontractors, and the employees of any subcontractor, to sign a non-disclosure or confidentiality agreement containing terms no less restrictive than those set forth herein. The disclosing party may enforce such agreements, if necessary, as a third-party beneficiary. Upon the termination of any employee, Recipient, and any subcontractor(s), shall remind their employees in writing of their continuing confidentiality obligations to USAC. (d) Contractor Enforcement of Confidentiality Requirements. Contractors agrees that any breach or violation of the confidentiality requirements set forth herein (by Contractor or its employees) shall be reported to the USAC General Counsel, or the USAC General Counsel s designee, immediately upon becoming aware of the breach or violation. Any report in connection with a breach or violation of the terms of the Confidential Information provisions set forth herein, must contain a complete account of the nature and extent of the violation, the identity and positions of the individuals participating in the violation, the steps taken to recover any improperly disclosed USAC Confidential Information, the extent to which such recovery was accomplished, and the steps being taken to prevent future occurrences of a similar nature. (e) Exclusions. Contractor shall not be considered to have breached its obligations for disclosing USAC Confidential Information as required to satisfy any legal requirement of a competent government body, provided that, promptly upon receiving any such request and to the extent that it may legally do so, Contractor advises USAC of the USAC Confidential Information to be disclosed and the third party requiring such disclosure, in order that USAC may interpose an objection to such disclosure, take action to assure confidential handling of the USAC Confidential Information, or take such other action as it deems appropriate to protect the USAC Confidential Information. Notwithstanding anything in the Contract to the contrary, USAC may provide this Contract, including Contractor s proposal information to the FCC or other governmental or judicial body, and to publicly disclose basic information regarding this Contract, e.g., name of Contractor, price, basis for selection and description of services/deliverables. 27. Information Security. In addition to the specific system and data security requirements of this Contract, Contractor shall establish and maintain safeguards to protect the confidentiality, integrity, and restricted availability of USAC Confidential Information, including PII, in its possession according to industry best practice standards. This includes all information that is sent to and received from USAC and USAC Stakeholders. Contractor and its subcontractors shall ensure that their respective local area networks, servers, and personal computers are secure from unauthorized access from within or outside their respective organizations. 28. USAC Information. USAC Information is provided to Contractor solely for the purpose of performing this Contract, and USAC Information or any part thereof shall not be sold, assigned, leased, or otherwise transferred to any third party by Contractor (except as required to perform the Contract services or as otherwise authorized in this Contract), 12

22 commingled with non-usac Information, or commercially exploited by or on behalf of Contractor, or its employees or agents. Promptly upon the expiration of the term of this Contract, or such earlier time as USAC may direct, Contractor shall, at the direction of USAC, and at no additional cost to USAC, return or destroy all copies of USAC Information in the possession or under the control of Contractor or its employees or any subcontractors or their employees. Contractor shall not withhold any USAC Information as a means of resolving any dispute. To the extent that there is a dispute between Contractor and USAC, Contractor may make a copy of such USAC Information as is necessary and relevant to resolution of the dispute. Any such copies shall promptly be destroyed upon resolution of the dispute. 29. Conflict of Interest (a) USAC is the appointed neutral administrator of the USF and the Universal Support Mechanisms. USAC is governed by a Board of Directors comprised of various stakeholders in the universal service programs, and is forbidden from advocating positions on universal service policy matters. 1 Because of USAC s unique role as neutral administrator, it is essential that any Contractor providing assistance to USAC in administering the universal service programs and the USF maintain the same neutrality, both in fact and in appearance. Moreover, because the USF constitutes public funds, it is essential that Contractor avoid strictly any conflict of interest or even the appearance of a conflict of interest relating to the performance of this Contract. For example, to the extent that Contractor or any Subcontractor has clients, membership, financial and/or any other material affiliation with entities that participate in the federal USF in any respect (including but not limited to receiving universal service support, contributing to the universal service programs, advocating policy positions on matters related to the programs), there may be actual, potential and/or apparent conflict(s) of interest associated with providing services related to the administration of the USF. An actual or potential conflict of interest, or the appearance of a conflict of interest, may also arise from any planned future or current employment or consultation arrangement involving the Contractor or any subcontractor and USAC or the FCC employees, or from the existence of any planned future or current ownership or control of the Contractor or any subcontractor by an FCC or USAC employee. (b) During the term of this Contract, Contractor shall take all necessary actions to ensure that Contractor employees and Subcontractor employees providing services under the Contract do not participate in the federal universal service programs in any respect (including but not limited to receiving universal service support, contributing to the universal service programs, advocating policy positions on matters related to the programs or providing services to entities participating in the universal service programs or the USF). A failure of Contractor employees or Subcontractor employees to comply with the aforesaid requirements shall be deemed a conflict of interest on the part of Contractor. 1 See 47 C.F.R , (d). 13