2024+Prosci+Contract+-+FINAL+-+signed.pdf

TECHNOLOGY CONTRACT: ORGANIZATIONAL CHANGE MANAGEMENT

1. PARTIES

The parties to this contract (Contract) are the state of North Dakota, acting through its Office of Management and Budget (STATE), and Prosci, Inc., a Colorado corporation having its principal place of business at 2950 E. Harmony Rd., Suite 130, Fort Collins, CO 80528 (CONTRACTOR).

2. DEFINITIONS

a) CONTRACTOR Materials – shall have the definition set forth in Section 24(b).

b) Control Environment - is the set of standards, processes, and structures that provide the basis for carrying out internal control across the organization.

c) Data - means any information provided to, or collected, generated, stored, or processed by the system. Data includes user identification information and metadata which may contain Data or from which the STATE’s Data may be ascertainable.

d) Data Breach - means any access, destruction, loss, theft, use, modification or disclosure of Data by an unauthorized party or that is in violation of Contract terms and/or applicable state or federal law.

e) Data Classification - means the process of defining data into relevant categories so the information has the appropriate controls in place to protect confidentiality, integrity, and availability based on the type of information.

f) Deliverable(s) – means the CONTRACTOR Materials or Licensed Materials, as applicable, expressly listed in this Contract and/or a SOW.

g) Licensed Materials – shall have the meaning set forth in Section 24(a).

h) “Licensee Agent(s)” means (a) each individual employed by STATE; (b) each independent contractor or similar contractor of STATE that may have access to the Licensed Materials; and

(c) each individual employed by any third party contractor, vendor, or agent of STATE that may have access to the Licensed Materials or that are likely to be directly impacted by the changes affected by the use of the Licensed Materials. For purposes of calculating the number of “Licensee Agents” at any given time, the parties shall calculate the sum of the individuals identified in the preceding (a) through (c) above.

i) Personally Identifiable Information (PII) - information about an individual maintained by an agency, including that 1) can be used to distinguish or trace an individual’s identity, such as name, social security number, date and place of birth, mother’s maiden name, or biometric records; or (2) is linked or linkable to an individual, such as medical, educational, financial, and employment information.

j) Recovery Point Objective (RPO) - means the point in time to which Data can be recovered and/or systems restored when service is restored after an interruption. The Recovery Point Objective is expressed as a length of time between the interruption and the most proximate backup of Data immediately preceding the interruption. The RPO is detailed in the SLA.

k) Recovery Time Objective (RTO) - means the period within which information technology services, systems, applications and functions must be recovered following an unplanned interruption. The RTO is detailed in the SLA.

l) Software as a Service (SaaS). The capability provided to the consumer is to use the CONTRACTOR’s applications running on a CONTRACTOR’s infrastructure. The applications are accessible from various client devices through interfaces such as a web browser (e.g., web-based email), or a program interface. The consumer does not manage or control the underlying infrastructure including network, servers, operating systems, storage, or even individual application capabilities, with the possible exception of limited user-specific application configuration settings. This definition is based on and consistent with National Institute of Standards and Technology (NIST) Special Publication 800-145.

m) Users – means contractors, subcontractors, outsourcing vendors, consultants and others who have a need to use the software for the benefit of STATE.

3. SCOPE OF WORK

CONTRACTOR, in exchange for the compensation paid by STATE under this Contract, shall provide in one or more Statement(s) of Work or Scope(s) of Work (each an “SOW” or “Scope of Work”), (a) professional training services performed by CONTRACTOR to STATE (the “Services”) or (b) the terms and conditions under which STATE licenses CONTRACTOR’s materials. Any SOW will not be effective until this Contract and the SOW are executed by both parties. Each SOW will become part of this Contract, effective on the latter of the Effective Date of this Contract or the date specified on the SOW.

4. COMPENSATION-PAYMENTS

a. Contractual Amount

The Contractual Amount shall be paid according to the Compensation Details document attached as Exhibit B or as described in any SOW.

The Contractual Amount is firm for the duration of this Contract and constitutes the entire compensation due CONTRACTOR for performance of its obligations under this Contract regardless of the difficulty, materials or equipment required, including fees, licenses, overhead, profit and all other direct and indirect costs or expenses incurred by CONTRACTOR except as provided by an amendment to this Contract.

b. Invoicing The final cost set forth on each invoice shall be equivalent to the cost for each Deliverable or Service as specified in the Scope of Work. CONTRACTOR shall not submit an invoice for any Deliverable or Service specified in the Scope of Work that STATE has not fully accepted pursuant to Section 22.

c. Payment Payment made in accordance with this Compensation section shall constitute payment in full for the services and work performed and the deliverables provided under this Contract and CONTRACTOR shall not receive any additional compensation hereunder.

STATE shall make payment under this Contract within forty-five (45) calendar days after receipt of an approved invoice.

Payment of an invoice by STATE will not prejudice STATE’s right to object to or question that or any other invoice or matter in relation thereto. CONTRACTOR's invoice will be subject to reduction for amounts included in any invoice or payment made which are determined by STATE not to constitute allowable costs, on the basis of audits conducted in accordance with the terms of this Contract. At STATE’s sole discretion, all payments shall be subject to reduction for amounts equal to prior overpayments to CONTRACTOR.

For any amounts that are or will become due and payable to STATE by CONTRACTOR, STATE reserves the right to deduct the amount owed from payments that are or will become due and payable to CONTRACTOR under this Contract.

d. Travel CONTRACTOR acknowledges travel expenses are covered by the Contractual Amount and shall not invoice STATE for travel expenses.

e. Prepayment STATE will not make any advance payments before performance or delivery by CONTRACTOR under this Contract.

f. Payment of Taxes by State STATE is not responsible for and will not pay local, state, or federal taxes. STATE sales tax exemption number is E-2001. STATE will furnish certificates of exemption upon request by

CONTRACTOR.

g. Taxpayer ID CONTRACTOR’s federal employer ID number is: 84-1307530.

h. Purchasing Card STATE may make payment using a government credit card. CONTRACTOR will accept a government credit card without passing the processing fees for the government credit card back to STATE.

5. EQUIPMENT, MATERIALS, AND WORKSPACE – RESOURCES PROVIDED BY PARTIES

For periods during which the Parties mutually agree that CONTRACTOR’s assigned staff is on site:

a. On site means statewide.

b. STATE agrees to provide an adequate working space, when required.

c. Equipment and software for on-site CONTRACTOR personnel is to be provided by

CONTRACTOR unless expressly agreed otherwise by parties.

d. When STATE and CONTRACTOR agree that remote access to systems is required, STATE shall provide the necessary supervised remote access security to enable CONTRACTOR access to the appropriate STATE systems.

6. TERM OF CONTRACT

This Contract term (Term or Initial Term) begins on August 1, 2024 or its Effective Date and ends on July 31, 2025. Any terms provided herein that expressly indicate such terms survive the Term of this Contract shall so survive termination or expiration of this Contract.

a. No Automatic Renewal

This Contract will not automatically renew.

b. Renewal Option

STATE may renew this Contract upon satisfactory completion of the Initial Term. STATE reserves the right to execute up to three (3) options to renew this Contract under the same terms and conditions for a period of twelve (12) months each (Renewal Term).

c. Extension Option STATE reserves the right to extend this Contract for an additional period, not to exceed twelve

(12) months, beyond the current termination date of this Contract.

d. Renegotiation Option Because it is unknown how long the solution and services will be used by STATE and ongoing maintenance and support are required for as long as the system is operational STATE and CONTRACTOR may renegotiate this Contract. After completion of the Initial Term, renewals, and extensions, STATE and CONTRACTOR may renegotiate the pricing and Term of this Contract. New pricing and Term shall be mutually agreed upon by the Parties and executed in writing.

If, during the Initial Term, any renewal, or extension STATE determines a realignment of the Term is needed (e.g., to align with STATE’s fiscal biennium, SaaS period), the Parties may mutually agree, in writing, to a new Term with a termination date not to exceed the total available length of Contract including its Initial Term, renewals, and extensions.

7. TERMINATION

a. Termination by Mutual Agreement

This Contract may be terminated by mutual consent of both Parties executed in writing.

b. Early Termination in the Public Interest

STATE is entering this Contract for the purpose of carrying out the public policy of the State of North Dakota, as determined by its Governor, Legislative Assembly, Agencies, and Courts. If this Contract ceases to further the public policy of the State of North Dakota, STATE, in its sole discretion, by written notice to CONTRACTOR, may terminate this Contract in whole or in part.

c. Termination for Lack of Funding or Authority STATE, by written notice to CONTRACTOR, may terminate the whole or any part of this Contract under any of the following conditions:

1) If funding from federal, state, or other sources is not obtained or continued at levels sufficient to allow for purchase of the services or goods in the indicated quantities or term.

2) If federal or state laws or rules are modified or interpreted in a way that the services or goods are no longer allowable or appropriate for purchase under this Contract or are no longer eligible for the funding proposed for payments authorized by this Contract.

3) If any license, permit, or certificate required by law or rule, or by the terms of this Contract, is for any reason denied, revoked, suspended, or not renewed.

Termination of this Contract under this subsection is without prejudice to any obligations or liabilities of either Party already accrued prior to termination.

d. Termination for Cause By STATE: STATE may terminate this Contract effective upon delivery of written notice to CONTRACTOR, or any later date stated in the notice:

1) If CONTRACTOR fails to provide services or goods required by this Contract within the time specified or any extension agreed to in writing by STATE; or

2) If CONTRACTOR fails to perform any of the other provisions of this Contract, or so fails to pursue the work as to endanger performance of this Contract in accordance with its terms.

The rights and remedies of STATE provided in this subsection are not exclusive and are in addition to any other rights and remedies provided by law or under this Contract.

By CONTRACTOR: CONTRACTOR may terminate this Contract upon delivery of written notice to STATE of material breach of Sections 19 and/or 24 of this Contract and opportunity to cure such breach. Termination may be effective only if STATE fails to cure said breach within ten

(10) business days after receipt of written notice of the breach. In the event of termination by CONTRACTOR under this Section 7(d), STATE will (a) cease all use of CONTRACTOR Trademarks, CONTRACTOR Materials and Licensed Materials promptly upon termination of this Contract and (b) promptly return to CONTRACTOR all Licensed Materials and Product Updates, including all copies, in whatever format or media.

8. SUSPENSION FOR CONVENIENCE

STATE shall have the right at any time to order the services of CONTRACTOR fully or partially stopped for STATE’s own convenience. STATE shall provide CONTRACTOR written notice of the reason for and duration of the suspension. The schedule shall be delayed on a day-for-day basis to the extent STATE has issued a stop work order to CONTRACTOR and such stop work order is causing delays in completing services in accordance with the schedule. CONTRACTOR shall have the right to submit claims in accordance with the terms of this Contract as a result of stop work orders issued under this section.

9. FORCE MAJEURE

Neither Party shall be held responsible for delay or default caused by fire, riot, terrorism, pandemic (excluding COVID-19), acts of God, or war if the event was not foreseeable through the exercise of reasonable diligence by the affected Party, the event is beyond the Party’s reasonable control, and the affected Party gives notice to the other Party promptly upon occurrence of the event causing the delay or default or that is reasonably expected to cause a delay or default. If CONTRACTOR is the affected Party and does not resume performance within fifteen (15) days or another period agreed between the Parties, then STATE may seek all available remedies, up to and including termination of this Contract pursuant to its Termination Section, and STATE shall be entitled to a pro-rata refund of any amounts paid for which the full value has not been realized, including amounts paid toward software subscriptions, maintenance, or licenses.

10. INJUNCTIVE RELIEF

CONTRACTOR shall immediately report to STATE any and all unauthorized disclosures or uses of STATE’s confidential information or proprietary information of which CONTRACTOR or its staff is aware or has knowledge. CONTRACTOR acknowledges that any unauthorized publication or disclosure of STATE’s confidential information or proprietary information to others may cause immediate and irreparable harm to STATE. If CONTRACTOR should publish or disclose such confidential information or proprietary information without authorization, STATE shall immediately be entitled to injunctive relief or any other remedies to which it is entitled under law or equity without requiring a cure period. CONTRACTOR shall indemnify, defend, and hold harmless STATE from all damages, costs, liabilities, and expenses (including without limitation reasonable attorneys’ fees) caused by or arising from CONTRACTOR’s unauthorized use or disclosure of STATE’s confidential information or proprietary information. As a condition to these indemnity obligations, STATE will provide CONTRACTOR with prompt notice of any claim of which STATE is aware and for which indemnification shall be sought under this Contract and shall cooperate in all reasonable respects with CONTRACTOR in connection with any such claim.

11. RIGHT OF SETOFF DAMAGES

Amounts due STATE by CONTRACTOR, including liquidated or other damages, or claims for damages, may be deducted or set-off by STATE from any money payable to CONTRACTOR pursuant to this Contract.

12. RIGHT TO WITHHOLD AMOUNTS OTHERWISE DUE IF THE CONTRACTOR IS IN BREACH

If CONTRACTOR fails to deliver Deliverables or to provide Services which satisfy CONTRACTOR’s obligations under this Contract, STATE shall have the right to withhold any and all payments due under this Contract. STATE may withhold any and all such payments due under this Contract to CONTRACTOR without penalty or work stoppage by CONTRACTOR, until such failure to perform is cured.

13. RIGHT TO REMEDIES AND CUMULATION OF RIGHTS

No remedy conferred by any of the specific provisions of this Contract is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given under this Contract, now or in the future existing at law or in equity or by statute or otherwise.

14. NON-WAIVER

Either party’s failure to exercise any of its rights under this Contract, its delay in enforcing any right, or its waiver of its rights on any occasion, shall not constitute a waiver of such rights on any other occasion. No course of dealing by either party in exercising any of its rights shall constitute a waiver thereof. No waiver of any provision of this Contract shall be effective unless it is in writing and signed by the party against whom the waiver is sought to be enforced.

15. INDEMNIFICATION

CONTRACTOR agrees to defend, indemnify, and hold harmless the state of North Dakota, its agencies, officers and employees (State), from and against claims based on the vicarious liability of the State or its agents, but not against claims based on the State’s contributory negligence, comparative and/or contributory negligence or fault, sole negligence, or intentional misconduct. This obligation to defend, indemnify, and hold harmless does not extend to professional liability claims arising from professional errors and omissions. The legal defense provided by CONTRACTOR to the State under this provision must be free of any conflicts of interest, even if retention of separate legal counsel for the State is necessary. Any attorney appointed to represent the State must first qualify as and be appointed by the North Dakota Attorney General as a Special Assistant Attorney General as required under N.D.C.C. § 54-12-08. CONTRACTOR also agrees to reimburse the State for all costs, expenses and attorneys' fees incurred if the State prevails in an action against CONTRACTOR in establishing and litigating the indemnification coverage provided herein. This obligation shall continue after the termination of this Contract.

16. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION

a. CONTRACTOR, at its own expense, shall defend and indemnify STATE against claims that

Deliverables furnished under this Contract infringe a United States patent or copyright or misappropriate trade secrets protected under United States law. Upon the occurrence of STATE being made aware of or receiving notice of such claim under this Section 16(a), STATE shall:

(a) promptly notify CONTRACTOR in writing of any such claim; (b) permit CONTRACTOR to control and direct the investigation, preparation, defense, and settlement of the claim; and (c) assist and fully cooperate in the defense of same, at CONTRACTOR’s cost and expense.

CONTRACTOR’S obligation shall not extend to a claim based on any alleged infringement arising from any: (a) additions, changes, or modifications to the services by or on behalf of STATE; (b) incorporation of the services or any component thereof into any other product or process; or (c) use of the services other than as permitted by this Contract.

b. As to any Services and/or Deliverables which is subject to a claim of infringement or misappropriation, CONTRACTOR may (a) obtain the right of continued use of Services and/or Deliverables for STATE or (b) replace or modify the Services and/or Deliverables to avoid the claim. If neither alternative is available on commercially reasonable terms then, at the request of CONTRACTOR, any applicable intellectual property or Software license, as applicable, and its charges will end, STATE will stop using the Services and/or Deliverables, and will return the Deliverables to CONTRACTOR, or will destroy the Deliverables and send to CONTRACTOR a certification in writing of such destruction. Upon return of the product, CONTRACTOR will give STATE a credit for the price paid to CONTRACTOR, less a reasonable offset for use and obsolescence.

17. REPRESENTATIONS AND WARRANTIES

CONTRACTOR represents and warrants to STATE that neither CONTRACTOR, in connection with performing the services in performance of this Contract, nor the completed Deliverables provided by CONTRACTOR, will infringe any patent, copyright, trademark, trade secret or other proprietary right of any person and the STATE’s exclusive remedy. CONTRACTOR’s sole liability for any breach of this warranty, is the indemnification procedures set forth in Section 16. CONTRACTOR further represents and warrants to STATE that it will not use any trade secrets or confidential or proprietary information owned by any third party in performing the Services related to this Contract or in providing the Deliverables unless CONTRACTOR has the authority to license, use or provide those trade secrets or confidential or proprietary information to STATE. CONTRACTOR further represents and warrants to STATE that neither CONTRACTOR nor any other company or individual performing services pursuant to this Contract is under any obligation to assign or give any work done under this Contract to any third party.

18. INSURANCE

a. CONTRACTOR shall provide certificate of insurance and any endorsements to STATE electronically via to:

Name: Abigail Dschaak Email Address: aadschaak@nd.gov Email Subject Line: Certificate of Insurance – Contract: Organizational Change Management

b. CONTRACTOR shall secure and keep in force during the term of this Contract and CONTRACTOR shall require all subcontractors, prior to commencement of an agreement between CONTRACTOR and the subcontractor, to secure and keep in force during the term of this CONTRACT, from insurance companies, government self-insurance pools or government self-retention funds, authorized to do business in North Dakota, the following insurance coverages:

1) Commercial general liability, including premises or operations, contractual, and products or completed operations coverages (if applicable), with minimum liability limits of $2,000,000 per occurrence.

2) Workers compensation coverage meeting all statutory requirements. The policy shall provide coverage for all states of operation that apply to the performance of this Contract.

3) Employer’s liability or “stop gap” insurance of not less than $1,000,000 as an endorsement on the workers compensation or commercial general liability insurance.

4) Professional errors and omissions with minimum limits of $1,000,000 per claim and in the aggregate, CONTRACTOR shall continuously maintain such coverage during the Contract period and for three years thereafter. In the event of a change or cancellation of coverage, CONTRACTOR shall purchase an extended reporting period to meet the time periods required in this section.

c. The insurance coverages listed above must meet the following additional requirements:

1) Any deductible or self-insured retention amount or other similar obligation under the policies shall be the sole responsibility of the CONTRACTOR.

2) This insurance may be in policy or policies of insurance, primary and excess, including the so-called umbrella or catastrophe form and must be placed with insurers rated “A-” or better by A.M. Best Company, Inc., provided any excess policy follows form for coverage. Less than an “A-” rating must be approved by the State. The policies shall be in form and terms approved by the State.

3) The duty to defend, indemnify, and hold harmless the State under this agreement shall not be limited by the insurance required in this agreement.

4) The state of North Dakota and its agencies, officers, and employees (State) shall be endorsed on the commercial general liability policy, including any excess policies (to the extent applicable), as additional insured. The State shall have all the benefits, rights and coverages of an additional insured under these policies that shall not be limited to the minimum limits of insurance required by this agreement or by the contractual indemnity obligations of the CONTRACTOR.

5) A Waiver of Subrogation” waiving any right to recovery the insurance company may have against the State on the commercial general liability policy.

6) CONTRACTOR shall furnish a certificate of insurance to the undersigned STATE representative electronically prior to commencement of this agreement. All endorsements shall be provided as soon as practicable.

7) Failure to provide insurance as required in this agreement is a material breach of contract entitling STATE to terminate this agreement immediately.

8) CONTRACTOR shall provide at least 30-day notice of any cancellation or material change to the policies or endorsements. CONTRACTOR shall provide on an ongoing basis, current certificates of insurance during the term of the Contract. A renewal certificate will be provided electronically 10 days prior to coverage expiration. An updated, current certificate of insurance shall be provided in the event of any change to a policy.

19. INTELLECTUAL PROPERTY & WORKS FOR HIRE

c. Intellectual Property Rights. “IP Rights” means rights in and to any intellectual property whether registerable or not including names, trademarks, trade names, trade dress, service marks, insignias, designs, works of authorship, domain names, inventions, whether or not copyrightable or patentable, trade secret information, and any other intellectual and/or industrial property.

b. CONTRACTOR’s Intellectual Property. As between the parties, CONTRACTOR owns all IP Rights to and in all CONTRACTOR materials disclosed, provided, or delivered to STATE as part of the Services, whether electronic or hard copy, including models, assessments, templates, toolkits, websites, webinars, podcasts, tutorials, training materials, course materials, and research, and all derivatives therefrom and updates thereto, and all portions thereof (collectively, the “CONTRACTOR Materials”). Without limiting the foregoing, from time to time CONTRACTOR may create and/or author additional materials and/or revise and update existing CONTRACTOR Materials, and such materials shall also be considered “CONTRACTOR Materials.”

i. No Reproduction. STATE acknowledges and agrees that it may not reproduce, distribute, make derivative works from, translate, or otherwise copy the CONTRACTOR Materials except as expressly allowed by this Contract and/or a fully-executed SOW.

ii. No Right in CONTRACTOR Materials. Except for those rights expressly granted in this Contract and/or a fully-executed SOW, STATE receives no right, title, or interest, expressed or implied, in any CONTRACTOR Materials.

iii. CONTRACTOR Trademarks. STATE agrees and acknowledges that, as between the parties, CONTRACTOR owns any trademarks, service marks, and/or trade dress included in the CONTRACTOR Materials (collectively, and together with any additional trademarks, service marks, and/or trade dress that CONTRACTOR currently owns or later acquires, the “CONTRACTOR Trademarks”).

iv. STATE’s Use of CONTRACTOR Trademarks. STATE may use the CONTRACTOR

Trademarks in connection with the internal marketing of the Services and/or Deliverables within STATE’s organization. Any such use must expressly identify CONTRACTOR as the owner of the mark or marks. STATE understands and agrees that it may not use the CONTRACTOR Trademarks for any other purpose, including but not limited to non- STATE targeted marketing, implied sponsorship of STATE by CONTRACTOR, or any branding of STATE’s goods or services, except as expressly provided in this Contract and/or a fully-executed SOW.

v. No Modification. STATE will not revise, alter, translate, or otherwise modify the

CONTRACTOR Trademarks, including the ® and/or ™ notices, without prior written permission from CONTRACTOR. STATE will not combine the CONTRACTOR Trademarks with any other marks, terms, slogans, designs, and/or symbols. This Section is not intended to prohibit co-branding by STATE as authorized in an SOW wherein STATE’s marks are used in conjunction with, but not integrated with, CONTRACTOR’s Trademarks.

vi. No Right in CONTRACTOR Trademarks. STATE, by this Contract or by its use of the

CONTRACTOR Trademarks pursuant to this Contract, acquires no right, title, or interest in or to CONTRACTOR’s trademarks or the goodwill associated therewith. All goodwill created or developed as a result of STATE’s use of the CONTRACTOR Trademarks will inure solely in CONTRACTOR.

c. STATE’s Intellectual Property. All of the following shall remain the exclusive property of STATE:

(a) IP Rights owned or licensed by STATE prior to the execution of this Contract; and (b) IP Rights developed independently of the Services and without reference to the Services, the CONTRACTOR Materials, or the CONTRACTOR Trademarks. By entering into this Contract and performing the Services, CONTRACTOR receives no right, title, or interest, expressed or implied, in any STATE IP Rights.

20. WORK PRODUCT

a. Work Product. “Work Product” shall mean all materials, products, reports, documentation, and inventions that are (a) developed or prepared for STATE by CONTRACTOR; and (b) expressly identified as “Work Product” in the applicable SOW.

b. CONTRACTOR acknowledges and agrees that the Work Product is the property of STATE and CONTRACTOR shall consider the Work Product the Confidential Information of STATE. Except to the extent of any CONTRACTOR Materials contained therein, all rights, title, and interests in and to the Work Product shall vest in STATE and shall be deemed to be a “work for hire” as that phrase is defined in the U.S. Copyright Act, 17 U.S.C. § 101, as may be amended from time to time. To the extent that title to any such Work Product may not vest in STATE for any reason, CONTRACTOR shall take all steps reasonably necessary to perfect STATE’s rights in the Work Product.

c. In the event, and to the extent, that the Work Product contains any CONTRACTOR Materials, CONTRACTOR hereby grants STATE an irrevocable, worldwide, royalty-free, non-exclusive license to use, execute, reproduce, display, perform, distribute copies of, and prepare derivative works of the CONTRACTOR Materials which may be contained within the Work Product.

21. PERSONNEL

a. STATE will designate a Project Manager to serve as the primary project manager for this

Contract. If, during the course of this Contract, it becomes necessary for STATE to change the person assigned as STATE’s Project Manager, STATE will notify CONTRACTOR in writing, pursuant to Notice section of this Contract.

b. Unless STATE otherwise notifies CONTRACTOR, STATE’s Project Manager shall carry out STATE’s administrative and management functions under this Contract, shall be responsible for acceptance of the Deliverables, and shall provide support and overall direction to

CONTRACTOR.

c. CONTRACTOR will designate a Project Manager and provide individuals to meet the requirements and accomplish the work as stated in this Contract including any mutually agreed upon Scope of Work.

d. CONTRACTOR agrees and understands that STATE’s execution of this Contract is predicated, in part and among other considerations, on the utilization of the specific individuals and personnel qualifications as identified; primary being Joelle Goodwin. Therefore, CONTRACTOR agrees that:

1) Prior to assignment of personnel, CONTRACTOR shall provide notice (email is sufficient) to

STATE for all personnel to be assigned to this Services.

2) The personnel assigned must have the knowledge necessary to complete requirements as defined in this Contract.

3) CONTRACTOR shall warrant that all personnel assigned to perform the Services will remain assigned for the agreed-upon length of time.

4) No replacement, reassignment or substitution of any assigned individuals and personnel qualifications shall be made without the prior written approval of STATE and that such replacement, reassignment or substitution shall be made at no additional cost to STATE.

5) Any substitution made pursuant to this paragraph must be of equal or higher skills, knowledge, and abilities than those personnel originally proposed, and that STATE’s approval of a substitution is not construed as an acceptance of the substitution’s performance potential. STATE agrees that an approval of a substitution will not be unreasonably withheld.

e. Upon request by STATE, CONTRACTOR shall replace any CONTRACTOR personnel that STATE determines, in its sole discretion, to be unable to perform the Services acceptably, e.g., inappropriate or unprofessional personal conduct, professional inabilities, etc.

f. STATE's working hours are Monday through Friday from 8:00 AM until 5:00 PM (CST or CDT) with one hour for lunch. STATE Project Manager may approve alternate work schedules.

g. According to STATE policy, STATE personnel are only obligated to work a forty-hour workweek, Monday through Friday, and are allowed reasonable vacation, sick and educational absences.

h. CONTRACTOR’s personnel are not expected to work on State holidays or other mandatory leave days.

i. CONTRACTOR agrees that STATE may require any personnel CONTRACTOR assigns to perform work under this Contract, including employees, contracted staff, subcontractors, or other individuals, to submit to a criminal history record check in accordance with N.D.C.C. §12- 60-24, through the authority granted to the chief information officer of the STATE pursuant to N.D.C.C. § 54-59-20. STATE shall have the right to reject any individual CONTRACTOR assigns to perform work under this Contract if, in STATE’s sole discretion, it determines that the results of the criminal history record check make the individual unacceptable. CONTRACTOR http://www.legis.nd.gov/cencode/t54c59.pdf http://www.legis.nd.gov/cencode/t12c60.pdf http://www.legis.nd.gov/cencode/t12c60.pdf agrees to be responsible for all costs associated with criminal history record checks carried out pursuant to this paragraph.

22. PROJECT MANAGEMENT

a. Reporting

1) CONTRACTOR personnel will be responsible for providing written time utilization to STATE’s Project Manager, or STATE’s project staff, as STATE’s Project Manager may assign.

2) CONTRACTOR’s Project Manager shall deliver to STATE’s Project Manager reports of CONTRACTOR’s progress on the Services and/or providing the Deliverables.

b. Integrated Change Control Process CONTRACTOR and STATE will utilize an integrated change control process to manage changes during the life of a SOW.

1) A change request to the Services as described in a SOW must be in writing to document the potential change. The write-up for the proposed change must be submitted to CONTRACTOR and STATE’s project managers who will in turn provide it to relevant Parties for assessment.

2) All change requests will be logged and tracked. STATE’s project manager will record the request in the project repository and will update the repository throughout the process.

3) The change will be reviewed and, if acceptable to STATE, CONTRACTOR will submit to STATE an estimate of the impact to cost, schedule, scope, and quality.

4) CONTRACTOR will continue performing the services in accordance with the original SOW unless otherwise agreed upon by STATE’s project manager. Work shall not commence on any new activities related to the change request until all Parties agree in writing.

5) CONTRACTOR’s project manager and STATE’s project manager will adapt the Project Management Plan to incorporate approved changes.

6) Each change request duly authorized in writing by the Parties shall be incorporated into and considered part of this Contract.

7) During the course of this Contract, if CONTRACTOR determines or could reasonably determine any STATE actions or directions constitute a requirement to perform additional work, CONTRACTOR shall notify STATE within thirty (30) calendar days that STATE has requested CONTRACTOR to perform additional work in the form of a change request utilizing the process above. CONTRACTOR understands that it waives the right to request additional time and reimbursable costs if CONTRACTOR fails to notify STATE within thirty

(30) calendar days of determining or reasonably being able to determine that any STATE actions or directions constitute a requirement to perform additional work under this Contract.

c. Deliverable Acceptance

1) Upon completion of a deliverable, CONTRACTOR will furnish STATE with the deliverable and associated documentation, the expected performance, and agreed upon Acceptance Criteria.

2) After receipt of items in Paragraph 22(c)(1), STATE will have five (5) working days or a different period of time as is agreed to by the Parties, in which to accept or reject each Deliverable in writing (email to CONTRACTOR’s Project Manager is sufficient). If STATE rejects any Deliverable(s), STATE will specify in writing its grounds for rejection and CONTRACTOR shall use its best efforts to revise any issues for the deliverables to be acceptable to STATE within the following five (5) working days. If STATE rejects it a second time, STATE will have the option of repeating the procedure as described in this acceptance statement above, escalating the issue to Agency Head, or terminating this Contract upon written notice to CONTRACTOR.

d. Final Acceptance Final Acceptance shall mean:

1) The successful completion of all Deliverables as stated in the Scope of Work in accordance with the Deliverable acceptance process AND

2) STATE has sixty (60) calendar days thereafter in which to accept or reject any Deliverable in writing (email to CONTRACTOR’s Project Manager is sufficient). If STATE rejects it, STATE shall specify in writing its grounds for rejection and CONTRACTOR shall use its best efforts to make the product conform to the requirements of this Contract as soon as possible and at no additional cost to STATE. CONTRACTOR shall continue to use its best efforts to make the Deliverable(s) conform to the requirements of this Contract until STATE accepts the Deliverable(s) or terminates this Contract upon written notice to CONTRACTOR.

23. PRODUCT CONFORMITY

STATE has twelve (12) months following Final Acceptance of the Deliverable(s) delivered by CONTRACTOR pursuant to this Contract to verify that the product(s) conform to the requirements of this Contract and perform according to CONTRACTOR system design specifications. Upon recognition of an error, deficiency, or defect, by STATE, CONTRACTOR shall be notified by STATE citing any specific deficiency (deficiency being defined as CONTRACTOR having performed incorrectly with the information provided by STATE, not CONTRACTOR having to modify a previous action due to additional and/or corrected information from STATE). CONTRACTOR, at no additional charge to STATE, shall provide a correction or provide a mutually acceptable plan for correction within thirty (30) calendar days following the receipt of STATE’s notice to CONTRACTOR. If CONTRACTOR’s correction is inadequate to correct the deficiency, or defect, or the error recurs, STATE may, at its option, act to correct the problem. CONTRACTOR shall be required to reimburse STATE for any such costs incurred or STATE may consider this to be cause for breach of contract.

24. LICENSE

a. Licensed Materials. The specific CONTRACTOR Materials listed in this Section 24(a) are herein collectively referred to as the “Licensed Materials.” CONTRACTOR shall make available the Licensed Materials to STATE via a URL to be provided by CONTRACTOR within ten (10) business days after the Effective Date. For the avoidance of doubt, any content that may be extracted, downloaded, and saved to STATE’s servers, computer, intranet, etc., from the SaaS shall, once so downloaded or saved, be considered “Licensed Materials.” The Licensed Materials licensed under this Enterprise Change Management license are the English versions of the following:

• Prosci Change Management Practitioner course

• Prosci Leading Your Teams Through Change course

• Prosci Change Management Sponsor course

• Prosci Change Management Orientation for Employees course

• Prosci Taking Charge of Change workshop

• Prosci Delivering Project Results: Change Management Workshop for Project

Managers course

• Prosci Integrating Agile and Change Management workshop

• ADKAR: A model for change in business, government and our community book (all formats)

• ADKAR: A model for change in business, government and our community audiobook

• Change Management: the people side of change book

• Employees Survival Guide to Change book

• Best Practices in Change Management report

• Best Practices in Change Management report excerpt(s)

• Introduction to ADKAR eLearning module

• Introduction to Leading Change eLearning module

• Thriving through Change eLearning module

• Prosci Introduction to Change Management eLearning module

• Prosci Proxima Offline

• Prosci Change Scorecard

i. CONTRACTOR hereby grants to STATE and its Licensee Agents a perpetual (with the intent that this Section 24 survive the Term of this Contract), non-exclusive right to install, display, perform, use, copy, customize, and execute the Licensed Materials, together with any Product Update (as defined below) subsequently procured by STATE solely for STATE’s own internal business purposes and subject to any license rights and restrictions expressly listed in this Contract.

ii. From time to time, CONTRACTOR may, at its sole discretion, revise and make available a subsequent release of one or more of the Licensed Materials (a “Product Update”). Such Product Updates, if delivered by CONTRACTOR hereunder, shall thereafter be considered Licensed Materials. CONTRACTOR shall be required to provide Product Updates only during the Term of this Contract.

iii. In addition to the eLearning modules listed in Section 24(a), STATE will also have access to any new eLearning module(s) created by CONTRACTOR during the Term of this Contract. Any such new module(s) will be delivered to STATE following release of such module(s) to the general public.

b. License Restrictions. Subject to the terms of this Contract, STATE acknowledges and agrees that the rights and licenses granted hereunder are personal to STATE and may not be sublicensed, sold, assigned, or otherwise transferred in whole or in part without the prior written permission of CONTRACTOR.

i. STATE is entitled to use only the Licensed Materials and/or Product Updates thereto specified and licensed in Section 24(a) or any addendum hereto. Nothing in this Contract grants STATE any right, title, license, or interest in or relating to any other CONTRACTOR Materials. STATE is solely responsible for ensuring that its systems and facilities are sufficiently secure to protect the Licensed Materials and/or Product Updates from disclosure to third parties, including appropriate computer system security. If any Licensed Materials and/or Product Updates are hosted on STATE’s intranet servers, STATE agrees to protect its intranet servers from outside access by maintaining appropriate levels of security.

ii. STATE will not remove or alter, and will maintain, any and all copyright and/or trademark notices affixed to any CONTRACTOR Materials, Licensed Materials and/or Product Updates, or any portion thereof.

iii. Except as expressly set forth in this Contract, STATE will not copy, reproduce, or create derivative works from, translate, or otherwise use the Licensed Materials and/or Product Updates for use by or distribution to a third party. STATE will not include or incorporate any CONTRACTOR Materials, Licensed Materials, Product Updates, and/or CONTRACTOR Trademarks, or any portion thereof, in any change management training, educational, or other materials created or developed by STATE for use by or distribution to any customer, partner, and/or client of STATE, or any other third-party except Licensee Agents, and will ensure that no employee, agent, or contractor does so. STATE will take all precautions to ensure that the Licensed Materials and/or Product Updates, or any materials based on or derived therefrom, are not distributed outside of STATE’s business in any format or media.

iv. STATE will not, and will not allow any customer, partner, and/or client of STATE, or any other third party to: (a) reverse engineer, decompile, translate, disassemble, or attempt to discover any underlying ideas or algorithms of the Licensed Materials and/or Product Updates (except to the extent such restriction is prohibited by applicable local law in order to obtain interoperability); (b) transfer, sell, lease, lend, disclose, or use for marketing, timesharing or service bureau purposes Licensed Materials and/or Product Updates; (c) use, provide, or allow others to use the Licensed Materials and/or Product Updates for the benefit of any third party; or (d) use the Licensed Materials and/or Product Updates, or allow the transfer, transmission, export, or re-export of any Licensed Materials and/or Product Updates or portion thereof, in violation of the Export Administration Regulations, the International Traffic in Arms Regulations, or any other applicable export control laws or regulations.

v. If STATE or any agent thereof includes or incorporates, inadvertently or intentionally, any CONTRACTOR Materials, Licensed Materials, Product Updates, and/or CONTRACTOR Trademarks in any change management training, educational, or other materials created or developed by STATE for use by or distribution to any customer, partner, and/or client of STATE, or any other third-party, STATE will immediately notify CONTRACTOR of any such unauthorized use.

vi. “Licensee Agent(s)” means (a) each individual employed by STATE; (b) each independent contractor or similar contractor of STATE that may have access to the Licensed Materials;

and (c) each individual employed by any third party contractor, vendor, or agent of STATE that may have access to the Licensed Materials or that are likely to be directly impacted by the changes affected by the use of the Licensed Materials. For purposes of calculating the number of “Licensee Agents” at any given time, the parties shall calculate the sum of the individuals identified in the preceding (a) through (c) above.

c. Customization. Subject to the license restrictions in Section 24(b), STATE and its Licensee Agents may customize the assessments, templates, worksheets, and/or courses provided with the Licensed Materials (following such customization, the “Customized Documents”) solely for use in connection with STATE’s own business and not for any customer, partner, and/or client of STATE, or any other third-party. This limited right to customize, edit, and/or change the assessments, templates, worksheets and/or courses and create the Customized Documents does not convey any right, title, interest, or intellectual property rights to STATE to the Customized Documents.

i. All CONTRACTOR copyright, trademark, and other notices must be maintained as originally presented by CONTRACTOR. If any CONTRACTOR Trademarks appear or are included in any Customized Documents, all such Customized Documents are subject to Section 19(b)(v).

ii. All standalone Customized Documents must include the following footnote: “Adapted from CONTRACTOR, Inc. Used under license.” When Licensed Materials are customized in a single set of materials, the cover labeling must clearly retain CONTRACTOR trademarks and the set must indicate that the Customized Documents have been customized using the phrase: “Adapted from Prosci, Inc. Used under license. Customized and produced by State of North Dakota.”

iii. STATE may co-brand Customized Documents in accordance with the terms of this Contract. Co-branding is not permitted when the contents of any of the Change Management Toolkit, the Change Portfolio Toolkit and/or the Change Management Guide for Managers toolkit are printed without customization as a fully intact reproduction of the source material.

iv. CONTRACTOR’s published hard-bound and paperback books and audiobooks, including all editions thereof, (e.g., ADKAR: A model for change in business, government and our community; Change Management: the people side of change; Employee Survival Guide to Change; Prosci Change Management Certification program – a pictorial review), any SaaS tools, and the Best Practices in Change Management Report (the aforementioned materials collectively, the “Published Works”) may never be customized, co-branded, or altered by any means under this Contract.

v. A representative set of the finished Customized Documents must be provided to CONTRACTOR upon CONTRACTOR’s reasonable request, not to exceed more than once per calendar year unless such request is the result of any dispute relating to the terms of this Contract. The sample set must be emailed to: notices@prosci.com (or, if CONTRACTOR provides a different address, then to such other address as CONTRACTOR provides notice thereof). CONTRACTOR reserves the right to object to the distribution of the Customized Documents and will inform STATE in writing (by email) of any such objection.

d. Internal Reproduction. Customized Documents and Licensed Materials must be of professional quality and reproduced in color if they are intended to be: (a) distributed without any customization by STATE; and/or (b) included in formal training programs or sessions.

i. The Published Works may be reproduced, copied, and distributed internally by STATE in an electronic format only in accordance with Section 27(b). For the avoidance of doubt, additional copies of the Published Works in a physical format may be purchased from

CONTRACTOR.

ii. No Customized Documents or Licensed Materials printed by STATE may be used for training courses taught by CONTRACTOR.

25. SOFTWARE AS A SERVICE (SAAS) AND SERVICE LEVEL AGREEMENT (SLA)

CONTRACTOR shall provide Subscription Services, including software/hardware updates and technical support services for the Subscription Services pursuant to this Contract for the duration of the Term.

a. Subscription Services:

1) The SaaS is based on the number of Users.

2) The SaaS shall be extended to any Users who have a need to use the SaaS for the benefit of STATE.

3) There shall be no limit on the number of machines, number of locations,…