Contracts Management Guide - Texas Comptroller of Public Accounts

(C) Compliance with the contested case process provided in Chapter
2260 is a condition precedent to seeking consent to sue from the
Legislature under Chapter 107, Civ. Prac. and Rem. Code. Neither the
execution of this Agreement by Agency nor any other conduct of any
representative of Agency relating to this Agreement shall be considered a
waiver of sovereign immunity to suit.
For all other specific breach of contract claims or disputes under this
Agreement, the following shall apply:
Should a dispute arise out of this Agreement, Agency and Contractor
shall first attempt to resolve it through direct discussions in a spirit of
mutual cooperation. If the parties’ attempts to resolve their
disagreements through negotiations fail, the dispute will be mediated by a
mutually acceptable third party to be chosen by Agency and Contractor
within fifteen (15) days after written notice by one of them demanding
mediation under this Section. Contractor shall pay all costs of the
mediation unless Agency, in its sole good faith discretion, approves its
payment of all or part of such costs. By mutual agreement, Agency and
Contractor may use a non-binding form of dispute resolution other than
mediation. The purpose of this Section is to reasonably ensure that
Agency and Contractor shall in good faith utilize mediation or another
non-binding dispute resolution process before pursuing litigation.
Agency’s participation in or the results of any mediation or another nonbinding
dispute resolution process under this Section or the provisions of
this Section shall not be construed as a waiver by Agency of (1) any
rights, privileges, defenses, remedies or immunities available to Agency as
an agency of the State of Texas or otherwise available to Agency; (2)
Agency’s termination rights; or (3) other termination provisions or
expiration dates of this Agreement.
Agencies may have their own process for mediating contract disputes and the process can be modified as
long as it does not conflict with statute. Not all contracts will require a mediation clause.
Intellectual Property Indemnification
The contractor will indemnify, defend and hold harmless the State of Texas and (agency name) against any
action or claim brought against the State of Texas and/or (agency name) that is based on a claim that
software infringes any patent rights, copyright rights or incorporated misappropriated trade secrets.
Contractor will pay any damages attributable to such claim that are awarded against the State of Texas
and/or (agency name) in a judgment or settlement.
If (agency name)’s use of the software becomes subject to a claim, or is likely to become subject to a claim, in
the sole opinion of (agency name) contractor shall, at its sole expense (1) procure for (agency name) the right to
continue using such software under the terms of this Contract; or (2) replace or modify the software so
that it is non-infringing.
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