Contracts Management Guide - Texas Comptroller of Public Accounts

Force Majeure
Agency name may grant relief from performance of the contract if the vendor is prevented from
performance by an act of war, order of legal authority, act of God, or other unavoidable cause not
attributable to the fault or negligence of the contractor. The burden of proof for the need of such relief
shall rest upon the contractor. To obtain release based on force majeure, the contractor shall file a written
request with agency name.
Proprietary or Confidential Information
Contractor will not disclose any information to which it is privy under this Contract without the prior
consent of the agency. Contractor will indemnify and hold harmless the State of Texas, its officers and
employees, and (agency name), its officers and employees for any claims or damages that arise from the
disclosure by Contractor or its contractors of information held by the State of Texas.
Rights to Data, Documents and Computer Software (State Ownership)
Any software, research, reports studies, data, photographs, negatives or other documents, drawings or
materials prepared by contractor in the performance of its obligations under this contract shall be the
exclusive property of the State of Texas and all such materials shall be delivered to the State by the
contractor upon completion, termination, or cancellation of this contract. Contractor may, at its own
expense, keep copies of all its writings for its personal files. Contractor shall not use, willingly allow, or
cause to have such materials used for any purpose other than the performance of contractor’s obligations
under this contract without the prior written consent of the State; provided, however, that contractor
shall be allowed to use non-confidential materials for writing samples in pursuit of the work. The
ownership rights described herein shall include, but not be limited to, the right to copy, publish, display,
transfer, prepare derivative works, or otherwise use the works.
Not only may there be instances where the State does not wish the work products of the contractor to be
made available to any other entity, public or private, but also the contractor is not entitled to any
additional profit or benefit where payment for the said products was by public funds, unless the state
agency has given its prior approval of the use of the materials.
This clause gives the “ownership” rights in all works, including software, developed or created under the
contract. This allocation of rights would be equitable where all development was funded at state expense.
If some development is funded at the expense of the contractor or commercially available software is part
of the deliverable, then a modification to the clause is necessary to identify the license rights that exist to
the software where the state does not have an ownership interest.
Independent Contractor
Both parties hereto, in the performance of this contract, shall act in an individual capacity and not as
agents, employees, partners, joint ventures or associates of one another. The employees or agents of one
party shall not be deemed or construed to be the employees or agents of the other party for any purposes
whatsoever. The contractor shall be responsible for providing all necessary unemployment and workers’
compensation insurance for the contractor’s employees.
Vendor Performance
In accordance with Texas Government Code, §2155.074 and 2155.75, vendor performance may be used
as a factor in the award.
122