CANCER PREVENTION AND RESEARCH INSTITUTE OF TEXAS REQUEST FOR PROPOSAL RFP Number: 542-16-004 Conference Planning and Coordination Services NIGP Class Item: 915-23 Proposal Due Date: April 4, 2016 Proposal Due Time: 4:00 pm (Central Time in Austin, Texas) Posting Date: March 4, 2016 NOTE: This RFP is composed of two parts: Part A: RFP Special Instructions, and Part B: General Instructions and Contract Terms and Conditions. In the event an instruction or term in Part A conflicts with an instruction or term in Part B, the instruction or term in Part A prevails, and any addenda or amendments to either Part A or Part B control over the original versions. The RFP controls over any attachments or exhibits to the RFP, including any technical specifications. Page 1
PART A: TABLE OF CONTENTS 1.0 OVERVIEW AND BACKGROUND... 3 1.1 Background... 3 1.2 Agency Purpose... 3 2.0 SCOPE OF SERVICES... 3 3.0 TERM OF CONTRACT... 5 4.0 RFP AND PROPOSAL INFORMATION... 6 4.1 Schedule of Events... 6 4.2 Revisions to Schedule... 6 4.3 Point of Contact... 6 4.4 Proposal Requirements for Submission... 7 4.5 HUB Statement... 8 5.0 EVALUATION OF PROPOSALS... 8 5.1 Evaluation Criteria... 9 6.0 SUBMITTING THE PROPOSAL TO CPRIT... 9 6.1 Reservation of Rights... 10 7.0 AWARD AND PAYMENT PROCESS... 10 7.1 Adding New Services to the Contract after Award... 11 7.2 Payment Terms... 11 7.3 Responsibility of Respondents... 11 8.0 TERMS AND CONDITIONS... 11 8.1 Termination of Contract... 11 8.2 Default Notification... 11 8.3 Conflict Between Terms and Conditions... 11 8.4 Changes in Services... 12 8.5 Independent Contractor... 12 8.6 Proprietary or Confidential Information... 12 8.7 Public Disclosure... 12 8.8 Vendor Performance... 12 8.9 Non-Performance, Abandonment or Default... 12 8.10 Infringements... 13 8.11 Smoking Policy... 13 Page 2
1.0 OVERVIEW AND BACKGROUND 1.1 Background In November 2007, Texas voters approved a constitutional amendment which created the Cancer Prevention and Research Institute of Texas (CPRIT) and allows the Institute to issue $3 billion in general obligation bonds at amounts not to exceed $300 million per year. 1.2 Agency Purpose CPRIT is mandated to (1) create and expedite innovation in the area of cancer research, thereby enhancing the potential for a medical or scientific breakthrough in the prevention of cancer and cures for cancer; (2) attract, create, or expand research capabilities of public or private institutions of higher education and other public or private entities that will promote a substantial increase in cancer research and in the creation of high-quality new jobs in this state; and (3) continue to develop and implement the Texas Cancer Plan. CPRIT will maintain the highest integrity and dedication to the mission of finding a cure for cancer. CPRIT s objective is to position Texas as a world-class leader in research and prevention through collaboration with a variety of entities, including public and private institutions of higher education, academic health institutions, universities, governmental organizations, nongovernmental organizations, public and private companies and others involved in the fight against cancer. CPRIT supports innovation in the selection of research projects emphasizing immediate or long-term medical breakthroughs; commercialization opportunities for research, and prevention services and health education for citizens with culturally appropriate information about ways in which their risks of developing and dying from cancer can be reduced. CPRIT is governed by an Oversight Committee consisting of nine members who are appointed by the Governor, Lieutenant Governor and Speaker of the House. Additional information regarding CPRIT can be found on the agency's web site at www.cprit.texas.gov. 2.0 SCOPE OF SERVICES CPRIT is seeking sealed proposals in order to establish a contract for Conference Planning and Coordination Services. The conference is held every other year and the tentative timeframe for holding the next conference is early November 2017, depending on venue availability. The conference format is to be determined but will likely include 14-16 hours of programming spread over two (2) or two and a half (2.5) days. The program will likely include both general sessions and concurrent breakout sessions. Austin is the preferred location, but venue availability may dictate holding the conference in Dallas, Houston or San Antonio. The vendor must be prepared to meet with CPRIT regularly throughout all phases outlined in this scope of services. Additional information about CPRIT s most recent conference held in 2015 can be found at www.cprit2015.org. Page 3
A. CONFERENCE PLANNING RESPONSIBILITES In the planning phase, the vendor will be expected to: 1. Assist CPRIT with planning the scope of the event, including programming and estimating costs. 2. Develop a conference planning timeline and run of show 3. Assist with the development of a Request for Proposal (RFP) for a conference venue in or around April 2016 and with the negotiation of a final contract with CPRIT s selected vendor for the conference venue. 4. Develop a detailed conference planning timeline by July 2016. 5. Begin assisting client with program planning and speaker selection in July 2016. 6. Inspect the conference venue to evaluate space and set-up requirements, assisting with the selection and reservation of meeting space and the number and type of rooms early in the planning process. 7. Develop plan for conference signage and décor needs and make provision to provide these services based on the plan for the conference. 8. Arrange preparation time and/or conference calls with speakers, moderators and panelists to coordinate session topics/titles, content, order of speakers and audio visual equipment needs; coordinate preparation and collection of presentations and ensure these materials are ready for each session. 9. Make hotel reservations for invited conference speakers and brief them about state travel guidelines for reimbursement of travel costs. 10. Coordinate the collections of biographies and photos of speakers and panelists to be used in the conference website and program book. 11. Confirm VIP pre-conference registration and customer service. 12. Arrange and coordinate event services with the conference venue such as room block monitoring, audio visual requirements for each meeting room, Wi-Fi availability and food and beverage menu selection. 13. Work with the conference venue or a third party vendor on possible audio or video recording of sessions. 14. Work with the Convention and Visitors Bureau to identify available hotels for overflow rooms as needed. Page 4
15. Coordinate onsite registration logistics, including training of volunteers or staff needed for registration and preparing registration materials, including conference attendee badges. B. CONFERENCE RESPONSIBILITES 1. Staff the conference and manage onsite registration, speaker transportation needs, and housekeeping of rooms used for conference sessions by staff and speakers. 2. Set up signage and décor for the conference. The décor specifications and requirements from CPRIT s 2015 conference are detailed in Appendix A. CPRIT anticipates signage and décor needs to be similar in 2017. 3. Ensure all audio visual and computer equipment is set up at the meeting site on time and working properly. 4. Verify conference meals and break refreshments are set on time and as ordered. 5. Manage preparation and distribution of attendee materials, including name badges C. POST CONFERENCE RESPONSIBILITIES 1. Review event invoices with CPRIT to ensure accuracy of services delivered. 2. Distribute and summarize conference evaluation surveys. 3.0 TERM OF CONTRACT The Contract shall commence upon the issuance of a Notice of Award by CPRIT and will automatically expire on December 31, 2017. The Contract may be extended as needed, not to exceed a total of ninety (90) days. Extension terms apply to renewal periods as well. The initial term of the contract will expire on December 31, 2017. At the sole option of CPRIT, the contract may be renewed for the next conference to be held in 2019. The renewal period, if exercised, will be: January 1, 2018 December 31, 2019 Under a contract renewal, the Vendor would be expected to begin working on the planning phase in March 2018. Price adjustments, other than for additional services requested by CPRIT, may only be requested at time of renewal. CPRIT reserves the right to accept, deny or negotiate all requested price adjustments. Price increases may not exceed 10% of the previous term total amount. Page 5
The Vendor shall have no authority to act for or on behalf of CPRIT or the State of Texas except as expressly provided for in the awarded contract; no other power or use is granted or implied. The Vendor may not incur any debts, obligations, expenses or liabilities of any kind on behalf of CPRIT or the State of Texas. The complete contract governing the procurement, will consist of the provisions in this RFP, including any attachments and supplements, the respondent s proposal, and the notice of award, including any addenda issued by CPRIT. The provisions of this RFP and those of the notice of award shall control in the case of any conflict with any of the provisions in the respondent s proposal, except as otherwise noted in the notice of award. Respondents shall provide, with their proposal, any proposed agreements the respondent intends to be part of the contract award. CPRIT may agree to, amend, or reject all or any part of such agreements if doing so would be in the State s and CPRIT s best interest. CPRIT WILL NOT SIGN FORM CONTRACTS. CPRIT WILL NOT BE BOUND BY ANY VENDOR LIMITATION OF LIABILITY. 4.0 RFP AND PROPOSAL INFORMATION 4.1 Schedule of Events: The following is the time table for the procurement process: Event Date ESBD Posting Date March 4, 2016 Deadline for Submitting Questions March 10, 2016 Official Response to Questions March 14, 2016 or as soon thereafter as possible Official response to questions will be provided through an Addendum, posted on the ESBD. Proposal Response Due Date/Time April 4, 2016 4:00 pm 4.2 Revisions to the Schedule: CPRIT reserves the right to revise this schedule or any portion of this RFP through a published addendum on the Electronic State Business Daily (ESBD). It is the responsibility of interested parties to periodically check the ESBD for updates prior to submitting a proposal. The respondent s failure to periodically check the ESBD will in no way release the selected vendor from the requirements of addenda or additional information nor will any resulting additional costs to meet requirements be allowed after award. 4.3 Point of Contact: Respondents shall direct all inquiries and communications regarding this RFP to the CPRIT Purchaser listed below: Donald Brandy, CPPB Phone (512) 305-8498 Email: dbrandy@cprit.texas.gov Respondents shall make no contact with other CPRIT personnel regarding this RFP, except as permitted by the CPRIT Purchaser listed as Point of Contact. Failure to comply with this requirement may result in disqualification of respondent s proposal. Page 6
4.4 Proposal Requirements for Submission: Listed below is a summary of all information to be included in a proposal submitted in response to this RFP. CPRIT reserves the right, in its sole judgment and discretion, to waive minor technicalities and errors in the best interest of the state: A. Transmittal Letter and Execution of Proposal Attachment A Respondent s signature is required to acknowledge that they can meet all requirements as stated. Failure to sign and submit this form with proposal may disqualify the proposal. The transmittal letter should contain a brief summary of key qualifications and the approach to achieving the required services. It should contain the company and point of contact information. It should state if any exceptions are being taken and that the proposal will remain in effect for 120 days after the response deadline. B. HUB Subcontracting Plan Attachment C Respondents, including Texas Certified HUBs, must fill out and submit the HUB Subcontracting Plan (HSP) with the Proposal to be considered responsive. Proposals received without the HSP, may be disqualified as a material failure to comply with the requirements of this RFP. C. Pricing Respondents must follow these pricing guidelines: 1. Provide a minimum - maximum range for the total contract amount 2. Include estimated out-of-pocket expenses listed as Other Direct Costs (if no costs are indicated, this will be assumed to be $0) 3. Provide a separate total comprehensive price for both conference planning and décor services, then combine the two totals for the total contract amount 4. Respondents may submit their pricing in the format of their choice, but it must include all listed guidelines 5. Invoicing will commence on an agreed upon date after vendor has started to provide services. Invoices will be submitted monthly and must include the contract number CPRIT reserves the right to negotiate all pricing prior to the initial award and each renewal option exercised. D. Proprietary Information If any material in the proposal is marked to be considered as proprietary information, include a separate page that indicates the proposal section(s) and page(s) so marked. E. Assumptions and Exceptions The Respondent shall clearly state any assumptions it made in its proposal. The Respondent shall also identify any exceptions it takes to specific provisions of this RFP, noting the specific RFP section number. If there are no exceptions, the respondent shall explicitly state that the respondent takes no exception to any part of this RFP. Any exception may result in the contract not being awarded to the respondent. On company letterhead, the respondent shall identify exceptions using the following format: Section Section Title Exception Proposed Language Page 7
The RFP consist of the following Attachments. Attachment A and C must be returned for the proposal to be considered responsive. Execution of Proposal (Attachment A) General Instructions & Terms and Conditions (Attachment B) HUB Subcontracting Plan (Attachment C) Décor Requirements (Appendix A) 4.5 HUB Statement: It is the Policy of CPRIT to promote and encourage contracting and subcontracting opportunities for State of Texas certified Historically Underutilized Businesses (HUBs) in all contracts in compliance with Texas Government Code, Statute 2161.001-253. Respondents are encouraged to become HUB certified. State of Texas HUB applications may be found at: http://www.cpa.state.tx.us/procurement/prog/hub/hub-forms/ Definitions for State of Texas HUB certifiable businesses can be found in Texas Administrative Code Title 34 Part 1, Subchapter B, Chapter 20.12 under the Comptroller of Pubic Accounts Procurement and Support Services (TPASS) program and HUB Rules. A. The Good Faith Effort involves sending written notification of subcontracting opportunities to at least three (3) active HUB-certified vendors per subcontracting area and one (1) Minority or Women s Trade Organization. Unless otherwise specified, the prime contractor must allow the HUBs no less than five (5) working days from their receipt of notice to respond, and provide notice of your subcontracting opportunity to a minority or women trade organization or development center no less than five (5) working days prior to the submission of your response to the contracting agency. B. HUB Subcontracting Plan (HSP) The Historically Underutilized Business (HUB) Subcontracting Plan (HSP) required by Chapter 2161 of the Texas Government Code (TGC) and by Title 34, Chapter 20, Subchapter B, 20.11-20.28 of the Texas Administrative Code (TAC). The HSP may be found at: http://comptroller.texas.gov/procurement/prog/hub/hubsubcontracting-plan/. CPRIT has determined that subcontracting opportunities may exist under this RFP and the total value may exceed $100,000. Respondents must submit a HSP and indicate if they intend or do not intend to subcontract any portion of the services with a HUB vendor. C. Historically Underutilized Business (HUB) A business who certified with the Comptroller of Public Accounts by meeting the following requirements: 51% owned by an Asian Pacific American, Black American, Hispanic American, Native American, American woman, or Disabled Veteran; is an entity with its principal place of business in Texas; and has an owner residing in Texas with a proportionate interest that actively participates in the control, operations and management of the entity s affairs. 5.0 EVALUATION OF PROPOSALS CPRIT reserves the right to award contract(s) without any negotiations and reserves the right to not make awards. Respondents are encouraged to provide their best response to the specifications, scope of services and terms and conditions contained in the solicitation. Based upon CPRIT's evaluation of the responses to this RFP, CPRIT shall determine if there is a need to request a Best and Final Offer (BAFO). A request for a BAFO shall be at the sole discretion of CPRIT and shall be requested in writing from the respondents determined to be within the competitive range. Page 8
5.1 Evaluation Criteria: The award will be made to the respondent whose offer provides the best value for the state and is in the state s best interest as defined in 2155.074, Gov't Code. In determining the best value, CPRIT will consider the following best value factors: 1. The qualifications, conference planning capabilities and experience of the respondent and the staff who will have responsibility for managing most aspects of the conference planning and coordination services in accordance with the Scope of Services. 2. The submitted pricing to provide the services. 3. Indicators of probable performance under the contract to include respondent s experience and demonstrated capability based on three case studies of the respondent providing conference planning and coordination services. 4. The quality of references from past customers of the respondent. The respondent must have a demonstrated track record of timely performance, quality and integrity, as evidenced by a list of client references that correspond to the three case studies presented. Client references should include contact information, including email addresses. 1 Qualifications, Conference Planning Capabilities and Experience 30% 2 The Submitted Pricing to Provide the Services 40% 3 Indicators of Probable performance 20% 4 References, Past History and other Relevant Factors as Determined by CPRIT 10% Total 100% CPRIT reserves the right to conduct studies and other investigations as necessary to evaluate any proposal. CPRIT reserves the right to waive any minor or immaterial response requirements noted in the submission process. Submission of proposals confers no legal rights upon any respondent. Preference may be given to, or relevant factors may be considered for the respondent s economic impact to the state or a subdivision of the state, including potential tax revenue and employment, the effect of a purchase on agency productivity and the cost of any employee training associated with the purchase. CPRIT will determine whether negotiations or BAFOs are necessary and may invite selected respondents to provide oral presentations of their proposals. Respondents should be aware that sealed proposals and information regarding sealed proposals cannot and will not be disclosed to respondents or the general public prior to award of the contract(s). All respondents will be notified by email when an award has been made. 6.0 SUBMITTING THE PROPOSAL TO CPRIT: Proposals must include all required information described in this RFP. Failure to provide the required information with the proposal may disqualify the proposal from consideration for award. Proposals may be submitted by hard copy or email. Page 9
By Hard Copy Submission: The Proposal shall be labeled and titled RFP 542-16-004 Conference Planning and Coordination Services. Respondents must submit one (1) original and two (2) hard copies of proposal. The Proposal may be hand carried and delivered by respondent or delivered by a courier delivery company. Please do not use USPS for the delivery of proposals. Physical Address Cancer Prevention & Research Institute of Texas Attn: Bid Services 1701 North Congress Ave, Suite 6-127 Austin, Texas 78701 By Electronic Submission (email): The email subject line should contain the RFP number and title. The Respondent is solely responsible for ensuring their electronic bid is sent to and received by CPRIT by the due date and time. Email Address: ebids@cprit.texas.gov It is recommended to begin the process well in advance of 4:00 pm and to limit attachment size to 10 MB. This may result in sending multiple emails for submission of all proposal requirements. All documents should be submitted in Microsoft Office and Adobe Acrobat formats. Respondents will receive an auto-reply confirming receipt of proposal. A request to withdraw any proposal must be done so in writing. The email receipt date and time stamp is final. CPRIT is not liable for any technical difficulties encountered with electronic submission. 6.1 Reservations of Rights: The rights of the CPRIT include, but are not limited to: 1. Rejection of any and all proposals received. 2. Cancellation of the RFP at its sole discretion. 3. Suspension of the procurement process. 4. Request respondents to clarify their proposal and/or submit additional information pertaining to the proposal, including issuance of RFP addenda. This RFP does not commit CPRIT to make an award, nor does it obligate it to pay any costs incurred by respondents in the preparation and submission of proposals in anticipation of a contract. Should an award be made, a notice of award will be issued. This award will be contingent upon the funding by the Legislature being available in each subsequent fiscal year. 7.0 AWARD AND PAYMENT PROCESS CPRIT shall award a contract(s) to the vendor(s) whose proposal is considered to be the best value to the state, as defined in 2155.074, Gov t Code. A Notice of Award will be issued to the selected vendor(s) in response to this RFP. Page 10
CPRIT reserves the right to award multiple contracts from this solicitation, and to not make an award. The vendor(s) agrees not to provide services until issuance of the Notice of Award from CPRIT. All respondents will be notified by email when an award has been made. 7.1 Adding New Services to the Contract after Award: Following the contract award, additional services of the same general category that could have been encompassed in the award of this contract, and that are not already on the contract, may be added. A formal written request may be sent to the selected vendor to provide a proposal on the additional services and shall submit a proposal to CPRIT as instructed. All prices are subject to negotiation with a BAFO. CPRIT may accept or reject any or all proposals, and may issue a separate RFP for the services after rejecting some or all of the proposals. The services covered under this provision shall conform to the specifications and requirements as outlined in the request. A Notice of Contract Amendment will be issued to document agreements after award. 7.2 Payment Terms: The parties shall comply with Chapter 2251, Texas Government Code, in invoicing and making payments. Payment for goods and services are due thirty (30) days after the goods are provided, the services completed, or a correct invoice is received, whichever is later. Payment under the contract shall not foreclose the right to recover wrongful payments. Invoices must be timely and accurate. Each invoice must include the contract number (RFP number) and include any written changes that may apply, as it relates to services, prices and quantities. Invoices must include other pertinent itemized information for verification of receipt of services by CPRIT. 7.3 Responsibility of Respondents: Respondents are solely responsible for thoroughly understanding the RFP and all requirements. Any questions concerning this RFP should be directed to the Point of Contact. Respondents are solely responsible for their proposal and all documentation submitted. Proposals received after the due date and time (April 4, 2016, 4:00 pm) will be considered nonresponsive and will be returned to the respondent un-opened. 8.0 TERMS AND CONDITIONS 8.1 Termination of Contract Convenience: In addition to the termination provisions contained in the attached Part B, general instructions and terms and conditions applicable to all procurements, this contract may be canceled by CPRIT upon written notice, provided such notice specifies an effective date for cancellation of not less than sixty (60) calendar days from the date such notice is received. Upon any such termination, all files will remain the property of the CPRIT, and if requested by CPRIT, will be delivered at no cost to CPRIT or its designated recipient no later than the effective date of cancellation. 8.2 Default Notification: If Awarded Vendor cannot begin services on the agreed date and time, the vendor shall give immediate written notice to CPRIT, and specify the date and time upon which the services will be provided. The Awarded Vendor must keep CPRIT informed at all times of implementation status. Failure to begin services on the agreed date and time, or failure to meet specifications authorizes CPRIT to purchase services elsewhere and charge full increase in costs, if any, to the defaulting vendor. 8.3 Conflict Between Terms and Conditions: In the event of a conflict between the terms and conditions of any respondents standard form documents and the detailed specifications, CPRIT s detailed specifications of this RFP shall govern. Page 11
8.4 Changes in Service: It is understood and agreed by the parties hereto, that changes in local, state and federal rules, regulations or laws applicable hereto may occur. The Awarded Vendor expressly agrees to comply with all applicable federal, state and local laws. 8.5 Independent Contractor: The Awarded Vendor is and shall remain an independent contractor in relationship to CPRIT. CPRIT shall not be responsible for withholding taxes from payments made under any contract resulting from this RFP. The vendor shall have no claim against CPRIT for vacation pay, sick leave, retirement benefits, social security, worker's compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind. 8.6 Proprietary or Confidential Information: The Awarded Vendor will not disclose any information to which it is privy under this contract without the prior consent of CPRIT. The Vendor will indemnify and hold harmless the State of Texas, its officers and employees, and CPRIT its officers and employees for any claims or damages that arise from the disclosure by the vendor or its contractors of information held by the State of Texas. 8.7 Public Disclosure: No public disclosures or news releases pertaining to this contract shall be made without prior written approval of CPRIT. 8.8 Vendor Performance: Vendor performance shall be conducted for each awarded contract and reported through the CPA Vendor Performance Tracking System as described in 34 Texas Administrative Code 20.108 (b). State agencies shall report a vendor's performance on any purchase of $25,000 or more from contracts administered by the commission or any other purchase made through an agency's delegated authority or a purchase made pursuant to the authority in Government Code, Title 10, Subtitle D or a purchase exemption from CPA/TPASS procurement rules and procedures. CPA may conduct reference checks with other entities regarding past performance. In addition to evaluating performance through the Vendor Performance Tracking System (as authorized by 34 Texas Administrative Code 20.108), CPA may examine other sources of vendor performance including, but not limited to, notices of termination, cure notices, assessments of liquidated damages, litigation, audit reports, and non-renewals of contracts. Any such investigations shall be at the sole discretion of CPA, and any negative findings, as determined by CPA, may result in non-award to the Respondent. Past Performance: A Respondent s past performance will be measured based upon pass/fail criteria, in compliance with applicable provisions of 2155.074, 2155.075, 2156.007, 2157.003, and 2157.125, Gov't Code. Respondents may fail this selection criterion for any of the following conditions: - A score of less than 90% in the Vendor Performance System, - Currently under a Corrective Action Plan through the CPA, - Having repeated negative Vendor Performance Reports for the same reason, - Having purchase orders that have been cancelled in the previous 12 months for non-performance (i.e. late delivery, etc.). Contractor performance information is located on the CPA web site at: http://www.window.state.tx.us/procurement/prog/vendor. 8.9 Non-Performance, Abandonment or Default: CPRIT will monitor the performance of this contract. All services and deliverables under this contract shall be provided at an acceptable quality level and in a manner consistent with acceptable industry standard, custom, and practice. Default in promised delivery (without accepted reasons), service date or failure to meet specifications, authorizes CPRIT to purchase goods or services elsewhere and charge the full increase, if any, in cost and handling to defaulting vendor. If the vendor defaults on the contract, CPRIT reserves the right to cancel the contract without notice and either re-solicit or re-award the contract to the next best responsive and responsible respondent. The defaulting vendor will not be considered in the re-solicitation and may not be considered in future Page 12
solicitations for the same type of work, unless the specification or scope of work significantly changed. The period of suspension will be determined by the agency based on the seriousness of the default. 8.10 Infringements: Vendor shall indemnify and hold harmless the State of Texas and Customers, and/or their employees, agents, representatives, contractors, assignees, and/or designees from any third party claims involving infringement of United States patents, copyrights, trade and service marks, and any other intellectual or intangible property rights in connection with the performances or actions of vendor pursuant to this contract. Vendor and the customer agree to furnish timely written notice to each other of any such claim. Vendor shall be liable to pay all costs of defense including attorneys fees. The defense shall be coordinated by vendor with the office of the Attorney General when Texas State Agencies are named defendants in any lawsuit and vendor may not agree to any settlement without first obtaining the concurrence from the Office of the Attorney General. Vendor shall have no liability under this section if the alleged infringement is caused in whole or in part by (i) use of the product or service for a purpose or in a manner for which the product or service was not designed, (ii) any modifications made to the product without Vendor s written approval, (iii) any modifications made to the product by the Vendor pursuant to Customer s specific instructions, (iv) any intellectual property right owned by or licensed to Customer, or (v) any use of the product or service by Customer that is not in conformity with the terms of any applicable license agreement. If Vendor becomes aware of any actual or potential claim, or Customer provides vendor with notice of an actual or potential claim, Vendor may (or in the case of an injunction against Customer, shall), at Vendor s sole option and expense (i) procure for the Customer the right to continue to use the affected portion of the product or service, or (ii) modify or replace the affected portion of the product or service with functionally equivalent or superior product or service so that the Customer s use is non-infringing. 8.11 Smoking Policy: CPRIT has a policy of being a smoke-free agency. The policy reflects our commitment to providing a healthy environment for all our employees and visitors. This policy prohibits smoking within any state building or on the grounds. The Vendor, by acceptance of this contract, agrees to abide by this policy when on the property of CPRIT. Page 13