EXHIBIT 10.35
CONTRACT ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇. NO. ▇▇-▇▇▇▇▇▇▇
CONTRACT
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
AND
Viisage Technology
This Contract, made this 19th day of June, 2000, at Harrisburg, Pennsylvania,
and governed by the laws of Commonwealth of Pennsylvania, between the
Commonwealth of Pennsylvania, acting through the Department of Transportation,
hereinafter referred to as the COMMONWEALTH,
AND
Viisage Technology located at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
and acting through its proper officials, hereinafter referred to as the
CONTRACTOR, covers the conduct of work on Project Number 98-20, "PennDOT Digital
Driver Licensing System".
Both the COMMONWEALTH and the CONTRACTOR, when used together, are hereinafter
referred to as the PARTIES.
WITNESSETH:
1. GENERAL
The CONTRACTOR will conduct work in accordance with the Project
Requirements referred to as The Request for Proposals titled, "PennDOT
Digital Driver Licensing System", dated August 16, 1999, Addendum #1, Dated
September 28, 1999 and Addendum #2, "Renewed Solicitation", dated October
29, 1999 and the Preproposal Presentation and/or Questions and Answers,
dated September 13, 1999, and Response to Additional Questions, dated
September 22, 1999, the Contractors Proposal titled, "PennDOT Digital
Driver Licensing System", dated November 18, 1999, the Demonstration
Materials titled, "Demonstration of the proposed PennDOT Digital Driver
Licensing System, dated January 22, 2000 and the Contractor's Proposal
Addendum titled, "PennDOT RFP 98-20 Questions and Viisage's Response -Final
Rev. 1", dated May 8, 2000, all hereby incorporated by reference as though
set forth in full herein.
The CONTRACTOR agrees that the services will be performed both during the
unpaid implementation and set up phases, that will begin with issuance of
the notice to proceed for this Contract by the COMMONWEALTH and are
anticipated to be complete within twelve (12) months of the notice to
proceed, and continue through the paid card issuance period that will be
sixty (60) months beginning at the date of the issuance of the first paid
driver license/identification card.
The COMMONWEALTH's Contracting Officer may renew this contract by mutual
agreement of the COMMONWEALTH and the CONTRACTOR, for a period of up to
one-hundred and twenty (120) months incrementally in two (2) sixty (60)
month periods by written notification provided to the CONTRACTOR by the
COMMONWEALTH's Contracting Officer.
No Federal funding is used to support the work governed by this Contract
and all references to the Federal Representative in this Contract do not
apply.
2. INCORPORATION BY REFERENCE
The following designated Contract provisions, and subsequent amendments,
are hereby incorporated by reference as though set forth in full herein:
the Contractor Responsibility Provisions and Offset Provisions, dated April
16, 1999; Contractor Integrity Provisions, dated December 20, 1991; the
Provisions Concerning the Americans with Disabilities Act, dated February
3, 1993; Travel Policies, dated December 21, 1999; the Commonwealth
Nondiscrimination / Sexual Harassment Clause, dated June 30, 1999; and, if
federally funded, the Federal Nondiscrimination and Equal Employment
Opportunity Clauses, dated January 1976; and the Audit Clause, dated
September 8, 1997.
Page 2
3. DELIVERABLES
The CONTRACTOR will provide the COMMONWEALTH with all products and services
stated in the Proposal, as may be modified by the Proposal Addendum, if
applicable, and as specified by the Project Requirements.
4. SUBCONTRACTS
Any subcontract must first be approved by the COMMONWEALTH. Subcontracts
shall include the following provisions from this Contract in their terms
and conditions: Section 2, Incorporation by Reference; Section 6, Review
Rights; Section 8, Travel, if applicable; Section 9, Overhead, if
applicable; Section 16, Federal Assurance, if federally funded; Section 23,
Beneficial Interests; Section 25, Accounting Records, and Section 26, Year
2000 Compliance.
Any subcontract must also contain a provision that the subcontract may be
terminated by the CONTRACTOR if the CONTRACTOR's contract is terminated by
the COMMONWEALTH for any reason. Additionally, every subcontract must
include a statement that the CONTRACTOR is required to make payment to the
subcontractor within 10 (ten) calendar days from receipt of payment from
the COMMONWEALTH for the subcontractor's work.
All contracts containing SERB participation must also include a provision
requiring the contractor to meet and maintain those commitments made to
SERBs at the time of submittal or contract negotiation, unless a change in
the commitment is approved by the contracting Commonwealth agency upon
recommendation by the BCABD. All contracts containing SERB participation
must include a provision requiring SERB subcontractors and SERBs in a joint
venture to incur at least 50% of the cost of the subcontract or SERB
portion of the joint venture, not including materials.
Commitments to MBE and WBE firms made at the time of bidding must be
maintained throughout the term of the contract. Any proposed change must be
submitted to BCABD, which will make a recommendation as to a course of
action to the contracting officer.
If your firm has been awarded the resultant contract, the following
information must be submitted to the Bureau of Contract Administration and
Business Development (BCABD):
The Prime Contractor's Quarterly Utilization Report (or similar type
document containing the same information) must be completed and submitted
to the contracting officer of the agency that awarded the contract and the
BCABD within ten (10) working days at the end of each quarter the contract
is in force. If there was no activity, the form must also be completed,
stating "No activity in this quarter." This information will be used to
determine the actual dollar amount paid to SERB Sub-contractors, Suppliers
and Joint Ventures. Also, it is a record of compliance to the commitment
your firm made and for which it received SERB points.
Page 3
5. OWNERSHIP RIGHTS
The PARTIES agree to the following ownership rights:
The PARTIES understand and agree that the work performed under this
Contract shall be considered a work made for hire by an independent
contractor within the meaning of the Copyright Law Revision Act of 1976, 17
U.S.C. Sections 101 and 201 (b). In such event, the parties agree that all
documents, designs, computer programs, data, computer documentation and
other tangible materials authored and prepared by CONTRACTOR for
COMMONWEALTH as the work product covered in the scope of work are the sole
and exclusive property of COMMONWEALTH free and clear from all claims of
any nature relating to contributions and other efforts. CONTRACTOR
understands and agrees that COMMONWEALTH will thereby have the right to
register all copyrights in its own name as author in the United States and
in foreign countries.
In the event such works do not fall within the specifically enumerated
works that constitute works made for hire under the United States copyright
laws, CONTRACTOR hereby agrees to expressly assign all copyrights,
proprietary rights, trade secrets, and other right, title and interest in
and to such works to COMMONWEALTH.
The COMMONWEALTH shall retain all ownership rights to any software or
modifications thereof and any associated documentation that is designed
developed or installed. The COMMONWEALTH shall also retain ownership rights
to all working papers, files and other documentation relating to this
Contract; and upon completion or termination of this Contract, all working
papers, files and other documentation shall immediately be delivered by the
CONTRACTOR to the COMMONWEALTH.
If, in the conduct of work pursuant to this Contract, the CONTRACTOR
produces patentable items, patents, processes, inventions or discoveries,
the COMMONWEALTH shall have royalty free use of all such patentable items,
patents, processes, inventions or discoveries.
Notwithstanding the preceding language, The COMMONWEALTH agrees that it has
no ownership rights to the CONTRACTOR's proprietary materials or
methodologies brought by the CONTRACTOR to the project ("CONTRACTOR
Property"). Any enhancements made to the CONTRACTOR Property using
COMMOMWEALTH funds ("Enhancements") shall become the property of the
COMMONWEALTH. The COMMONWEALTH agrees to provide the CONTRACTOR with a non-
exclusive, royalty-free license to the Enhancements to run concurrent with
the terms of this Contract. It is specifically understood by the CONTRACTOR
that the COMMONWEALTH shall have unrestricted access to all images produced
with the CONTRACTOR's materials under this Contract.
Page 4
Unless otherwise required by law, each party agrees to keep the other
party's proprietary materials and methodologies confidential and not to
disclose any proprietary materials and methodologies ("Confidential
Information") to any third party. The parties also agree to take reasonable
precautions to protect Confidential Information from unauthorized
disclosure. Either party may disclose Confidential Information to its
employees or agents when disclosure is necessary to further the purposes of
this Contract. Confidential Information shall not include any information
in the public domain through no fault of either party nor information
provided by a third party legally authorized to make a disclosure.
If either party is legally compelled to disclose Confidential Information,
the legally-compelled party agrees to provide the other party with prompt
written notice of the compulsion to provide the other party with an
opportunity (if available) to contest the propriety of the order or
subpoena, or to arrange legally appropriate safeguards against future
disclosure of Confidential Information. The CONTRACTOR acknowledges that
the Proposal and this Contract, including any modifications, are considered
public information under the Pennsylvania Right-to-Know Law, Act of June
21, 1957, P.L. 390, as amended (65 P.S. (S)(S)66.1-.4), and no advance
notice shall be necessary in connection with any requests for disclosure of
this information.
6. REVIEW RIGHTS
The COMMONWEALTH and the Federal Representative, if appropriate, have the
right to review and inspect all project activities at any time. If any
CONTRACTOR personnel assigned to the project change from those specified in
the Proposal, the CONTRACTOR shall notify the COMMONWEALTH, in writing, of
such changes. All new project personnel must be approved in writing by the
COMMONWEALTH.
7. PAYMENT
The COMMONWEALTH will pay the CONTRACTOR during the existence of this
Contract, for work completed in accordance with the terms and conditions of
the Contract, at the rates shown in the attached cost proposal, submitted
with the technical proposal, dated November 18, 1999, for the time period
set forth in Section 1 of this Contract. Payment shall be made in
accordance with the conditions of the Project Requirements and Proposal.
The CONTRACTOR may assign its payment rights under this Contract when
necessary to obtain project financing, provided that the CONTRACTOR gives
the COMMONWEALTH prior written notice of any such assignment. No assignment
of payment shall relieve the CONTRACTOR of its performance obligations
under the Contract.
8. TRAVEL
If the COMMONWEALTH reimburses for travel expenses, the COMMONWEALTH will
approve travel expenses only for work actually involved in the project
covered by this Contract. All travel expenses must comply with the Travel
Policies, as amended. Travel
Page 5
expenses not specified in the Project Requirements must have prior written
approval of the COMMONWEALTH to be eligible for reimbursement.
9. OVERHEAD (If Applicable)
The CONTRACTOR's final overhead rate will be based on the actual overhead
costs verified by an audit performed by an approved agency of the
COMMONWEALTH upon completion of this Contract or at such time that this
Contract is terminated.
10. NOTICE OF BREACH; OPPORTUNITY TO CURE
The COMMONWEALTH shall, prior to invoking the remedies available for
default provided in paragraph 11 or the termination provisions provided in
paragraph 13, provide CONTRACTOR with notice of any alleged breach under
the Contract and allow CONTRACTOR a commercially reasonable opportunity to
cure such breach before the COMMONWEALTH is entitled to declare CONTRACTOR
in default and terminate the Contract.
11. DEFAULT
a. The COMMONWEALTH may, subject to the provisions of ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇, and in addition to its other rights under the Contract,
declare the CONTRACTOR in default by written notice thereof to the
CONTRACTOR, and terminate (as provided in ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇) the whole or any part of this Contract for any of the
following reasons:
1) Failure to begin work within the time specified in the Contract
or as otherwise specified;
2) Failure to perform the work with sufficient labor, equipment, or
material to insure the completion of the specified work in
accordance with the Contract terms;
3) Unsatisfactory performance of the work;
4) Failure or refusal to remove material, or remove and replace any
work rejected as defective or unsatisfactory;
5) Discontinuance of work without approval;
6) Failure to resume work, which has been discontinued, within a
reasonable time after notice to do so;
7) Insolvency or bankruptcy;
8) Assignment made for the benefit of creditors;
9) Failure or refusal within 10 days after written notice by the
Contracting Officer, to make payment or show cause why payment
should not be made, of any amounts due for materials furnished,
labor supplied or performed, for equipment rentals, or for
utility services rendered;
Page 6
10) Failure to protect, to repair, or to make good any damage or
injury to property; or
11) Breach of any provision of this Contract.
b. In the event that the COMMONWEALTH terminates this Contract in whole
or in part as provided in Subparagraph a. above, the COMMONWEALTH may
procure, upon such terms and in such manner as it determines, services
similar or identical to those so terminated, and the CONTRACTOR shall
be liable to the COMMONWEALTH for any reasonable excess costs for such
similar or identical services included within the terminated part of
the Contract.
c. If the Contract is terminated as provided in Subparagraph a. above,
the COMMONWEALTH, in addition to any other rights provided in this
paragraph, may require the CONTRACTOR to transfer title and deliver
immediately to the COMMONWEALTH in the manner and to the extent
directed by the Issuing Office, such partially completed work,
including, where applicable, reports, working papers and other
documentation, as the CONTRACTOR has specifically produced or
specifically acquired for the performance of such part of the Contract
as has been terminated. Except as provided below, payment for
completed work accepted by the COMMONWEALTH shall be at the Contract
price. Except as provided below, payment for partially completed work
including, where applicable, reports and working papers, delivered to
and accepted by the COMMONWEALTH shall be in an amount agreed upon by
the CONTRACTOR and Contracting Officer. The COMMONWEALTH may withhold
from amounts otherwise due the CONTRACTOR for such completed or
partially completed works, such sum as the Contracting Officer
determines to be necessary to protect the COMMONWEALTH against loss.
d. The rights and remedies of the COMMONWEALTH provided in this paragraph
shall not be exclusive and are in addition to any other rights and
remedies provided by law or under this Contract.
e. The COMMONWEALTH's failure to exercise any rights or remedies provided
in this paragraph shall not be construed to be a waiver by the
COMMONWEALTH of its rights and remedies in regard to the event of
default or any succeeding event of default.
f. Following exhaustion of the CONTRACTOR's administrative remedies as
set forth in Paragraph 14, the CONTRACTOR's exclusive remedy shall be
to seek damages in the Board of Claims.
12. FORCE MAJEURE
Neither party will incur any liability to the other if its performance of
any obligation under this Contract is prevented or delayed by causes beyond
its control and without the fault or negligence of either party. Causes
beyond a party's control may include, but are not limited to, acts of God
or war, changes in controlling law, regulations, orders or the requirements
of any governmental entity, severe weather conditions, civil disorders,
natural disasters, fire,
Page 7
epidemics and quarantines, general strikes throughout the trade, and
freight embargoes.
The CONTRACTOR shall coordinate with the COMMONWEALTH in matters related to
disaster recovery as stated in the RFP on page 46, second complete
paragraph.
13. TERMINATION PROVISIONS
The COMMONWEALTH has the right to terminate this Contract for any of the
following reasons. Termination shall be effective upon written notice to
the CONTRACTOR.
a. TERMINATION FOR CONVENIENCE: The COMMONWEALTH shall have the right to
terminate the Contract for its convenience if the COMMONWEALTH
determines termination to be in its best interest. The CONTRACTOR
shall be paid for work satisfactorily completed prior to the effective
date of the termination, but in no event shall the CONTRACTOR be
entitled to recover loss of profits.
b. NON-APPROPRIATION: The COMMONWEALTH's obligation to make payments
during any Commonwealth fiscal year succeeding the current fiscal year
shall be subject to availability and appropriation of funds. When
funds (state and/or federal) are not appropriated or otherwise made
available to support continuation of performance in a subsequent
fiscal year period, the COMMONWEALTH shall have the right to terminate
the Contract. The CONTRACTOR shall be reimbursed for the reasonable
value of any nonrecurring costs incurred but not amortized in the
price of the supplies or services delivered under this Contract. Such
reimbursement shall not include loss of profit, loss of use of money,
or administrative or overhead costs. The reimbursement amount may be
paid from any appropriations available for that purpose.
c. TERMINATION FOR CAUSE: The COMMONWEALTH shall have the right to
terminate the Contract for CONTRACTOR default under Paragraph 11,
Default, upon written notice to the CONTRACTOR. The COMMONWEALTH shall
also have the right, upon written notice to the CONTRACTOR, to
terminate the Contract for other cause as specified in this contract
or by law. If it is later determined that the COMMONWEALTH erred in
terminating the Contract for cause, then, at the COMMONWEALTH's
discretion, the Contract shall be deemed to have been terminated for
convenience under the Subparagraph 13.a.
14. CONTRACT CONTROVERSIES
In the event of a controversy or claim arising from the Contract, the
CONTRACTOR must, within six months after the cause of action accrues, file
a written notice of controversy or claim with the Contracting Officer for a
determination. The Contracting Officer shall send his/her written
determination to the CONTRACTOR. The decision of the Contracting Officer
shall be final and conclusive unless, within thirty (30) days after receipt
of such written determination, the CONTRACTOR files a claim with the
Commonwealth Board of Claims. Pending a final judicial resolution of a
controversy or claim, the CONTRACTOR shall proceed diligently with the
performance of the Contract in a manner consistent with the
Page 8
interpretation of the Contracting Officer and the COMMONWEALTH shall
compensate the CONTRACTOR pursuant to the terms of the Contract.
15. AUDITS (only if federally funded)
The CONTRACTOR shall comply with the terms of Office of Management and
Budget Circular A-128 or Office of Management and Budget Circular A-133 as
applicable, as outlined in the Audit Clause, made part of this Contract by
reference.
16. FEDERAL ASSURANCE (only if federally funded)
CONTRACTOR shall not discriminate on the basis of race, color, national
origin, or sex in the performance of this contract. CONTRACTOR shall carry
out applicable requirements of 49 C.F.R. Part 26 in the award and
administration of United States Department of Transportation-assisted
contracts. Failure by CONTRACTOR to carry out these requirements is a
material breach of this contract, which may result in the termination of
this contract or such other remedy as the COMMONWEALTH deems appropriate.
If CONTRACTOR is providing services or supplies for the COMMONWEALTH
pursuant to this contract, it must include this assurance in each
subcontract that it signs with a subcontractor. If CONTRACTOR is a grantee
or other recipient of funds from the COMMONWEALTH, it must include this
assurance in each contract into which it enters to carry out the project or
activities being funded by this contract.
17. LIABILITY CLAUSE
The CONTRACTOR shall comply with all Federal, State and local laws
applicable to its work, and shall procure at its expense all licenses and
permits necessary for the fulfillment of its obligations.
The CONTRACTOR agrees to indemnify, defend, and hold harmless the
COMMONWEALTH, its officers, agents, and employees from any and all claims,
suits, actions, judgments, and losses accruing or resulting to any and all
contractors, subcontractors, materialmen, laborers, and any other person,
firm, or corporation furnishing or supply work, services, materials, or
supplies in connection with the performance of this Contract, and from any
and all claims, losses, costs, demands, expenses, and actions accruing or
resulting to any person, firm, or corporation for injury, death, or
property damage caused by acts or omissions of the CONTRACTOR, its
employees, or agents in the performance of this Contract and against any
liability cost, and expense for violation of proprietary rights or rights
of privacy arising out of the publication, translation, reproduction,
delivery, performance, use or disposition of any data furnished under this
Contract or based on any libelous or other unlawful matter contained in
such data. The COMMONWEALTH agrees to notify the CONTRACTOR within a
reasonable time of any written claims or demands against the COMMONWEALTH
for which the CONTRACTOR is responsible under this Section.
In limitation of the foregoing, CONTRACTOR shall have no liability under
this Contract for
Page 9
any claim:
a. Resulting from the use of the software in a manner for which it was
not designed; or
b. Arising from any infringement occasioned by the COMMONWEALTH (or by
third parties at the direction of the COMMONWEALTH) modifying,
decompiling, disassembling, translating, reverse engineering,
marketing, copying (except as expressly authorized herein), or
distributing the software or making the software available to any
person other than employees or agents of the COMMONWEALTH, without the
CONTRACTOR'S prior written consent.
The CONTRACTOR warrants that the hardware and software will perform
substantially in accordance with the CONTRACTOR'S proposal. The warranty
shall be void in the event of modification without the CONTRACTOR'S written
consent, accident, neglect, misuse, failure to maintain a suitable
operating environment, tampering, or any other event other than ordinary
use. THE CONTRACTOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABLILITY
OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL THE CONTRACTOR BE
LIABLE TO THE COMMONWEALTH FOR LOST PROFIT OR INDIRECT, INCIDENTAL, SPECIAL
OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE
PERFORMANCE OF THIS CONTRACT, EVEN IF THE CONTRACTOR HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
18. INSURANCE REQUIREMENTS
The CONTRACTOR shall procure and maintain at its expense the following
types of insurance issued by companies acceptable to the COMMONWEALTH and
authorized to conduct such business under the laws of the COMMONWEALTH:
a. Worker's compensation insurance for all of the CONTRACTOR's employees
and those of any subcontractor, engaged in work at the site of the
project in accordance with the Worker's Compensation Act of 1915 and
any supplements or amendments thereof.
b. Public liability and property damage insurance to protect the
COMMONWEALTH, the CONTRACTOR, and any and all subcontractors from
claims for damages for personal injury (including bodily injury),
sickness or disease, accidental death, and damage to property,
including loss of use resulting from any property damage, which may
arise out of the services performed under this Contract, whether such
performance be by the CONTRACTOR, by any subcontractor, or anyone
directly or indirectly employed by either. The limits of such
insurance shall be in an amount not less than two hundred fifty
thousand ($250,000.00) dollars each person and one million
($1,000,000.00) dollars each occurrence, personal injury and property
damage combined. Such policies shall be occurrence rather than claims-
made policies and shall name the COMMONWEALTH of Pennsylvania as an
additional
Page 10
insured. The insurance shall not contain any endorsements or any other
form designed to limit and restrict any action by the COMMONWEALTH, as
an additional insured, against the insurance coverage in regard to
work performed for the COMMONWEALTH.
19. PERFORMANCE BOND
The CONTRACTOR shall furnish a performance bond in the amount of 50% of the
estimated yearly price to the COMMONWEALTH (1,300,000 times the per picture
license/ID card price), within 10 working days of receipt of the notice to
proceed. The cost of the bond shall be the responsibility of the
CONTRACTOR. The bond must be issued by a corporate surety authorized to do
business in the COMMONWEALTH, and made payable to the Commonwealth of
Pennsylvania, Department of Transportation. The bond must be renewed for
each year of the contract.
20. MODIFICATIONS
Any change to this Contract and cost and/or time as detailed in this
Contract, the Proposal, the Proposal Addendum, if applicable, and the
Project Requirements, other than the renewals permitted in Section 1, shall
be in writing, approved by endorsement of appropriate CONTRACTOR and
COMMONWEALTH representatives, and further approved by the Federal
Representative, if federally funded. Upon such full execution, the letter
shall become a supplement to this Contract.
21. COMMONWEALTH CONTRACTING OFFICER
The person designated to act for the COMMONWEALTH in administering and
monitoring this Contract is designated as ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or her designee
or replacement.
22. RESOLUTION OF DISPUTES
The CONTRACTOR agrees to be bound by the Act of May 20, 1937 (P.L. 728, No.
193) as amended by the Act of October 5, 1978 (P.L. 1104, No. 260) and
subsequent enactments, which provides, in substance, that the Board of
Claims shall have jurisdiction of claims against the COMMONWEALTH arising
from contracts and the power to order the interpleader or impleader of
other parties, when necessary for a complete determination of any claim or
counterclaim in which the COMMONWEALTH is a party.
23. BENEFICIAL INTERESTS
No member or delegate to the Congress of the United States shall be
admitted to any share or part of this Contract or to any benefit arising
therefrom.
Page 11
24. CERTIFICATION OF CONTRACTOR (only if federally funded)
The CONTRACTOR hereby certifies that the CONTRACTOR has not employed or
retained for a commission, percentage, brokerage, contingent fee, or other
consideration, any firm or person (other than a bona fide employee working
solely for the CONTRACTOR) to solicit or secure this Contract.
The CONTRACTOR further certifies that the CONTRACTOR has not agreed, as an
express or implied condition for obtaining this Contract, to employ or
retain the services of any firm or person in connection with carrying out
this Contract. The CONTRACTOR has not paid, or agreed to pay, to any firm,
organization, or person (other than a bona fide employee working solely for
the CONTRACTOR) any fee, contribution, donation, or consideration of any
kind for, or in connection with, procuring or carrying out this Contract.
25. ACCOUNTING RECORDS
The CONTRACTOR shall maintain accounting records and other verifiable
evidence pertaining to the costs it incurs on this project. This CONTRACTOR
shall also require its subcontractors to maintain accounting records and
other verifiable evidence pertaining to the costs they incur on this
project. These data will be made available for inspection by the
COMMONWEALTH and the Federal Representative, if appropriate, or any
authorized representative, at all reasonable times at the office of the
CONTRACTOR and any subcontractor during the Contract period and for three
years following the date of the final payment to the CONTRACTOR and copies
thereof shall be furnished as requested.
26. YEAR 2000 COMPLIANCE
The CONTRACTOR represents and warrants that each hardware, software and
firmware product delivered (or service performed) under the Field Purchase
order, including enhancements, shall be able to accurately process, provide
and/or receive date/time data (including, but not limited to, calculating,
comparing and sequencing) from, into and between the 20th and 21st
centuries and the year 1999 and 2000, including leap year calculations,
when used in accordance with the product documentation provided by the
CONTRACTOR, provided that all listed or unlisted products (e.g. hardware,
software, firmware, etc.) used in combination with such product properly
exchange date/time data with it.
No hardware, software, firmware or service provided under the Field
Purchase Order shall change the status of a hardware, software and firmware
product from Year 2000 compliant to Year 2000 noncompliant. The CONTRACTOR
must notify the COMMONWEALTH of any Year 2000 noncompliant hardware,
software and firmware product located by the CONTRACTOR during the course
of its performance of the Field Purchase Order.
The CONTRACTOR shall not deliver any third-party hardware, software,
firmware or service to the COMMONWEALTH which has not been represented and
warranted in writing by the third-party manufacturer to be Year 2000
compliant, as described above. The
Page 12
CONTRACTOR shall pass through the third-party representation and warranty
from the third-party manufacturer to the COMMONWEALTH.
Any modifications or changes made by the COMMONWEALTH or any of its third
parties to any hardware, software, or firmware pursuant to the Field
Purchase order that alters Year 2000 compliance shall void the Year 2000
warranty of the product.
This Year 2000 Compliance representation and warranty shall be in effect
until the later of December 31, 2002 or the termination of the Contract. In
any event this representation and warranty shall survive termination of the
Filed Purchase Order and shall run until December 31, 2002. In no event
will the acceptance by the COMMONWEALTH of any hardware, software or
firmware product or service delivered to the COMMONWEALTH, by or through
the CONTRACTOR, or any payment by the COMMONWEALTH to the CONTRACTOR
pursuant to the Field Purchase order limit the effectiveness or survival of
this Year 2000 Compliance representation and warranty.
27. NOTICES
Any notices required or permitted by this Contract or given in connection
herewith, shall be in writing and made by certified mail, overnight mail
service, first-class mail, fax or personal delivery, postage paid to the
following representatives of the PARTIES:
As to the COMMONWEALTH:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Bureau of Office Services
Department of Transportation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
to the CONTRACTOR:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Viisage Technology
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
These notices include, but are not limited to, notice of termination,
provision of the certificate of insurance, issues requiring resolution of a
dispute, modifications to this Contract and any general issues concerning
the interpretation of this Contract.
Other points of contact which are necessary to complete the work conducted
under the terms of this Contract and not concerning the items listed in the
above paragraph, shall be identified by the PARTIES immediately after the
notice to proceed given by the COMMONWEALTH.
Page 13
28. ORDER OF PRECEDENCE
If any conflicts or discrepancies should arise in the terms and conditions
of this Contract, or the interpretation thereof, the order of precedence
for resolution shall be: (a) the Contract; (b) the CONTRACTOR's Proposal
Addendum dated May 8, 2000; if applicable, (c) the Preproposal Presentation
and/or Questions and Answers dated September 13, 1999 and Responses to
Additional Questions, dated September 22, 1999, (d) the Request for
Proposals dated August 16, 1999, including Addendum #1 dated 9/28/99 and
Addendum #2, dated October 29, 1999; (e) the Demonstration Materials
titled, "Demonstration of the proposed PennDOT Digital Driver Licensing
System, dated January 22, 2000 and (f) the CONTRACTOR'S Proposal dated
November 18, 1999.
Page 14
