STATE OF MICHIGAN

ENTERPRISE PROCUREMENT

Department of Technology, Management, and Budget 320 S. Walnut Street 2nd Floor Lansing, MI 48933

P.O. BOX 30026 LANSING, MICHIGAN 48909

CONTRACT CHANGE NOTICE

CONTRACT SUMMARY

Nationwide Data Collection for Higher Education

INITIAL EFFECTIVE DATE INITIAL EXPIRATION DATE INITIAL AVAILABLE OPTIONS EXPIRATION DATE

BEFORE

October 10, 2023 August 31, 2028 1 - 12 Months August 31, 2028

PAYMENT TERMS DELIVERY TIMEFRAME

ALTERNATE PAYMENT OPTIONS EXTENDED PURCHASING

MINIMUM DELIVERY REQUIREMENTS

N/A

P-Card Direct Voucher (PRC) Other Yes No

2300 Dulles Station Blvd St. 300

Herndon VA 20171

Daniel H. Lee

703-742-4201 contracts@studentclearinghouse.org

CV0059052

NATIONAL STUDENT

CLEARINGHOUSE

C O

N

TR

A C

TO

R

517-284-4147

TiedemanB@Michigan.gov

Marissa Gove

(517) 449-8952

DTMB

Barry Tiedeman DTMB govem1@michigan.gov

C ontract

A dm inistrator Program M anagerSTA

TE

N/ANET 45

Change Notice Number 2

Contract Number MA230000000574 to

DESCRIPTION OF CHANGE NOTICE

OPTION EXTENSIONLENGTH OF OPTION LENGTH OF EXTENSION REVISED EXP. DATE

CURRENT VALUE VALUE OF CHANGE NOTICE ESTIMATED AGGREGATE CONTRACT VALUE

$755,352.00 $0.00 $755,352.00

DESCRIPTION

Effective July 7, 2025, this Contract is amended to reflect updated accessibility requirements. All prior references to ADA, Accessibility, and/or WCAG 2.0 are replaced and superseded with the following language:

Accessibility Requirements.

The State is required to comply with the Americans with Disabilities Act of 1990 (ADA) and has adopted standards and procedures regarding accessibility requirements for websites, applications, content, and electronic documents. Due to a change in the law, the State is required to comply with specific accessibility standards for websites, applications, content and documents.

Starting 4/24/2026, throughout the Term, all websites, applications, software, content, and electronic documents, including but not limited to mobile applications, text, images, sounds, videos, controls, animations, links, and documents (including files in the following formats: PDF, word processing, presentation, and spreadsheet), created, provided, or made available by the Contractor under this Contract, must comply with WCAG 2.1 Level AA.

All other terms, conditions, specifications and pricing remain the same. Per contractor and agency agreement, and DTMB Central Procurement approval.

STATE OF MICHIGAN

ENTERPRISE PROCUREMENT

Department of Technology, Management, and Budget 320 S. Walnut Street 2nd Floor Lansing, MI 48933

P.O. BOX 30026 LANSING, MICHIGAN 48909

CONTRACT CHANGE NOTICE

CONTRACT SUMMARY

Nationwide Data Collection for Higher Education

INITIAL EFFECTIVE DATE INITIAL EXPIRATION DATE INITIAL AVAILABLE OPTIONS EXPIRATION DATE

BEFORE

October 10, 2023 August 31, 2028 1 - 12 Months August 31, 2028

PAYMENT TERMS DELIVERY TIMEFRAME

ALTERNATE PAYMENT OPTIONS EXTENDED PURCHASING

MINIMUM DELIVERY REQUIREMENTS

N/A

P-Card Direct Voucher (PRC) Other Yes No

2300 Dulles Station Blvd St. 300

Herndon VA 20171

Ricardo Torres

703-742-4201 contracts@studentclearinghouse.org

CV0059052

National Student Clearinghouse

C O

N

TR

A C

TO

R

517-284-4147

TiedemanB@Michigan.gov

Adam Ashley

(517)-855-1376

DTMB

Barry Tiedeman DTMB ashleya2@michigan.gov

C ontract

A dm inistrator Program M anagerSTA

TE

N/ANET 45

Change Notice Number 1

Contract Number MA230000000574 to

DESCRIPTION OF CHANGE NOTICE

OPTION EXTENSIONLENGTH OF OPTION LENGTH OF EXTENSION REVISED EXP. DATE

CURRENT VALUE VALUE OF CHANGE NOTICE ESTIMATED AGGREGATE CONTRACT VALUE

$755,352.00 $0.00 $755,352.00

DESCRIPTION

Effective September 18th, 2024, the State Contract Administrator has been updated to Adam Ashley.

Email: ashleya2@michigan.gov

Phone: (517)-855-1376

All other terms, conditions, specifications and pricing remain the same. Per Contractor and agency agreement, and DTMB Central Procurement Services approval.

NOTICE OF CONTRACT

NOTICE OF CONTRACT NO. 230000000574 .

between

THE STATE OF MICHIGAN

and

C O

N

TR

A C

TO

R

National Student Clearinghouse

ST

A

TE

Pr og ra m

M an ag er Barry Tiedeman CEPI

2300 Dulles Station Blvd., Ste. 300 517-284-4147

Herndon, VA 20171 TiedemanB@michigan.gov

Ricardo Torres

C on tra ct

Ad m in is tra to r Jordana Sager DTMB

703-742-4201 517-896-1903 contracts@studentclearinghouse.org SagerJ2@michigan.gov

CV0059052

CONTRACT SUMMARY

DESCRIPTION: Nationwide Data Collection for Higher Education.

INITIAL EFFECTIVE DATE INITIAL EXPIRATION DATE

INITIAL AVAILABLE

OPTIONS

EXPIRATION DATE BEFORE

CHANGE(S) NOTED BELOW

9/1/2023 8/31/2028 1 - One Year 8/31/2028

PAYMENT TERMS DELIVERY TIMEFRAME

Net 45 N/A

ALTERNATE PAYMENT OPTIONS EXTENDED PURCHASING

☐ P-card ☐ Payment Request (PRC) ☐ Other ☐ Yes ☐ No

MINIMUM DELIVERY REQUIREMENTS

N/A

MISCELLANEOUS INFORMATION

THIS IS NOT AN ORDER. This Contract Agreement is awarded on the basis of the State’s inquiry bearing the solicitation number 230000000023. Orders for Delivery will be issued directly by the Departments through the issuance of a Delivery Order (DO).

ESTIMATED CONTRACT VALUE AT TIME OF EXECUTION $755,352.00

STATE OF MICHIGAN PROCUREMENT

Department of Technology, Management, and Budget 320 S. Walnut St., 2nd Floor North Lansing, MI 48933

STANDARD CONTRACT TERMS

This STANDARD CONTRACT (“Contract”) is agreed to between the State of Michigan (the “State”) and National Student Clearinghouse (“Contractor”), a not-for-profit corporation organized under the laws of the Commonwealth of Virginia. This Contract is effective on September 1, 2023 (“Effective Date”), and unless terminated, will expire on August 31, 2028. (the “Term”).

This Contract may be renewed for one (1) additional one (1) year period. Renewal is at the sole discretion of the State and will automatically extend the Term of this Contract.

The State will document its exercise of renewal options via Contract Change Notice.] The parties agree as follows:

1. Duties of Contractor. Contractor must perform the services and provide the deliverables described in Schedule A – Statement of Work (the “Contract Activities”). An obligation to provide delivery of any commodity is considered a service and is a Contract Activity.

Contractor must furnish all labor, equipment, materials, and supplies necessary for the performance of the Contract Activities unless otherwise specified in Schedule A.

Contractor must: (a) perform the Contract Activities in a timely, professional, safe, and workmanlike manner consistent with standards in the trade, profession, or industry; (b) meet the performance and operational standards, and specifications of the Contract;

(c) [Reserved]; (d) not interfere with the State’s operations; (e) obtain and maintain all necessary licenses, permits or other authorizations necessary for the performance of the Contract; (f) cooperate with the State, including the State’s quality assurance personnel, and any third party to achieve the objectives of the Contract; (g) return to the State any State-furnished equipment or other resources in the same condition as when provided when no longer required for the Contract; (h) assign to the State any claims resulting from state or federal antitrust violations to the extent that those violations concern materials or services supplied by third parties toward fulfillment of the Contract; (i) to the extent Contractor has access to State buildings, facilities, and/or systems, comply with all State physical and IT security policies and standards which will be made available upon request; and (j) [Reserved]. Any breach under this paragraph is considered a material breach.

Contractor must also be clearly identifiable while on State property by wearing identification issued by the State, and clearly identify themselves whenever making contact with the State.

2. Notices. All notices and other communications required or permitted under this Contract must be in writing and will be considered given and received: (a) when verified by written receipt if sent by courier; (b) when actually received if sent by mail without verification of receipt; or (c) when verified by automated receipt or electronic logs if sent by facsimile or email.

If to State: If to Contractor:

See Contract Administrator information shown below.

See Contract Administrator information shown below.

3. Contract Administrator. The Contract Administrator, or the individual duly authorized for each party, is the only person authorized to modify any terms of this Contract, and approve and execute any change under this Contract (each a “Contract Administrator”):

State: Contractor:

Jordana Sager 320 S. Walnut St.

Lansing, MI 48933 SagerJ2@michigan.gov 517-896-1903

Chief Legal Officer 2300 Dulles Station Blvd., Suite 220 Herndon, VA 20171 Contracts@studentclearinghouse.org 703-742-4200

4. Program Manager. The Program Manager for each party will monitor and coordinate the day-to-day activities of the Contract (each a “Program Manager”):

State: Contractor:

Barry Tiedeman 702 W. Kalamazoo St.

Lansing, MI 48915 TiedemanB@michigan.gov 517-284-4147

Samantha Dowd 2300 Dulles Station Blvd., Suite 220 Herndon, VA 20171 dowd@studentclearinghouse.org 703-733-4185

5. Performance Guarantee. Contractor must at all times have financial resources sufficient, in the opinion of the State, to ensure performance of the Contract and must provide proof upon request.

6. Insurance Requirements. See Schedule C.

7. Reserved.

8. Reserved.

9. Relationship of the Parties. The relationship between the parties is that of independent contractors. Contractor, its employees, and agents will not be considered employees of the State. No partnership or joint venture relationship is created by virtue of this Contract. Contractor, and not the State, is responsible for the payment of wages, benefits and taxes of Contractor’s employees and any subcontractors. Prior performance does not modify Contractor’s status as an independent contractor.

Neither party has authority to contract for nor bind the other party in any manner whatsoever.

10. Reserved.

11. Contract Activities including Software. If Contractor is providing Contract Activities that require the use of Contractor Software, the following terms apply:

a. License Grant by Contractor: Contractor hereby grants to the State, exercisable by and through its Authorized Users, a nonexclusive, royalty-free, irrevocable right and license during the Term and such additional periods, if any, as Contractor is required to provide Contract Activities under this Contract or any Statement of Work, to: (a) access and use the Software, including in operation with other software, hardware, systems, networks and services, for the State’s business purposes, including for processing State Data; (b) generate, print, copy, upload, download, store and otherwise process all GUI, audio, visual, digital and other output, displays and other content as may result from any access to or use of the Software; (c) prepare, reproduce, print, download and use a reasonable number of copies of the Documentation for any use of the Software under this Contract; and (d) access and use the Software for all such non-production uses and applications as may be necessary or useful for the effective use of the Contract Activities hereunder, including for purposes of analysis, development, configuration, integration, testing, training, maintenance, support and repair, which access and use will be without charge and not included for any purpose in any calculation of the State’s or its Authorized Users’ use of the Software, including for purposes of assessing any Fees or other consideration payable to Contractor or determining any excess use of the Software as described below.

b. License Restrictions on the State. The State will not: (a) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make the Software available to any third party, except as expressly permitted by this Contract or in any Statement of Work; or (b) use or authorize the use of the Software or Documentation in any manner or for any purpose that is unlawful under applicable law.

c. Use by the State. The State will pay Contractor the corresponding Fees set forth in a Statement of Work or Pricing Schedule for all Authorized Users access and use of the Software. Such Fees will be Contractor’s sole and exclusive remedy for use of the Software, including any excess use.

d. Certification by the State to the Contractor, if applicable. To the extent that a License granted to the State is not unlimited, Contractor may request written certification from the State regarding use of the Software for the sole purpose of verifying compliance with the Contract. Such written certification may occur no more than once in any 24 month period during the Term of the Contract. The State will to respond to any such request within 45 calendar days of receipt. If the State’s use is greater than contracted, Contractor may invoice the State for any unlicensed use (and related support) pursuant to the terms of this Contract at the rates set forth in Schedule B, and the unpaid license and support fees shall be payable in accordance with the terms of the Contract. Payment under this provision shall be Contractor’s sole and exclusive remedy to cure these issues.

e. Definitions.

(1) “Software” means Contractor’s software as set forth in a Statement of Work, provided to the State that is necessary for use of the Contract Activities.

(2) “Documentation” means all user manuals, operating manuals, technical manuals and any other instructions, specifications, documents or materials, in any form or media, that describe the functionality, installation, testing, operation, use, maintenance, support, technical or other components, features or requirements of the Software or Contract Activities.

(3) “Authorized Users” means all persons authorized by the State to access and use the Software or Contract Activities under this Contract.

12. Subcontracting. Contractor may subcontract the performance of any of its duties or obligations under this Contract to any person; provided that the Contractor: (i) provides at least 30 days’ prior written notice to the State; (ii) prior to the commencement of any work by any subcontractor, enters into a written agreement with such subcontractor that binds the subcontractor to terms that are at least as protective of the rights and information of the State under this Contract; and (iii) uses good faith efforts to subcontract only with persons that have the requisite skills to perform any subcontracted obligations in accordance with the terms of this Contract. Contractor must provide the State any information it requests to determine whether the delegation is acceptable. Contractor must: (a) be the sole point of contact regarding all contractual matters, including payment and charges for all Contract Activities; and (b) make all payments to the subcontractor. Contractor remains responsible for the completion of the Contract Activities, compliance with the terms of this Contract, and the acts and omissions of the subcontractor. Upon receipt of written notice from the Contractor regarding the engagement of any subcontractor, should the State determine, in its reasonable discretion, that the subcontractor is not satisfactory, the State shall have the right to terminate this Contract, without incurring any further liability or obligations to the Contractor. The termination notice will specify whether Contractor must: (a) cease performance of the Contract Activities immediately, or (b) continue to perform the Contract Activities in accordance with Section 27 Transition Responsibilities. Contractor must promptly reimburse to the State any fees prepaid by the State prorated to the date of such termination.

13. Reserved.

14. Background Checks. Pursuant to Michigan law, all agencies subject to IRS Pub.

1075 are required to ask the Michigan State Police to perform fingerprint background checks on all employees, including Contractor and Subcontractor employees, who may have access to any database of information maintained by the federal government that contains confidential or personal information, including, but not limited to, federal tax information. Further, pursuant to Michigan law, any agency described above is prohibited from providing Contractors or Subcontractors with the result of such background check. For more information, please see Michigan Public Act 427 of 2018. Upon request, or as may be specified in Schedule A, Contractor must perform background checks on all employees and subcontractors and its employees prior to their assignment. The scope is at the discretion of the State and documentation must be provided as requested. Contractor is responsible for all costs associated with the requested background checks. The State, in its sole discretion, may also perform background checks.

15. Assignment. Except for an assignment required by law, statute, regulation, legislative action, executive order, or other governmental action, neither party may assign this Contract to any third party without the prior written approval of the other party.

16. Change of Control. Contractor will notify the State, within 30 days of any public announcement or otherwise once legally permitted to do so, of a change in Contractor’s organizational structure or ownership. For purposes of this Contract, a change in control means any of the following: (a) a sale of more than 50% of Contractor’s stock; (b) a sale of substantially all of Contractor’s assets; (c) a change in a majority of Contractor’s board members; (d) consummation of a merger or consolidation of Contractor with any other entity; (e) a change in ownership through a transaction or series of transactions; (f) or the board (or the stockholders) approves a plan of complete liquidation. A change of control does not include any consolidation or merger effected exclusively to change the domicile of Contractor, or any transaction or series of transactions principally for bona fide equity financing purposes.

In the event of a change of control, Contractor must require the successor to assume this Contract and all of its obligations under this Contract.

17. Ordering. Contractor is not authorized to begin performance until receipt of authorization as identified in Schedule A.

18. Acceptance. Contract Activities are subject to inspection and testing by the State within 30 calendar days of the State’s receipt of them (“State Review Period”), unless otherwise provided in Schedule A. If the Contract Activities are not fully accepted by the State, the State will notify Contractor by the end of the State Review Period that either: (a) the Contract Activities are accepted but noted deficiencies must be corrected; or (b) the Contract Activities are rejected. If the State finds material deficiencies, it may: (i) reject the Contract Activities without performing any further inspections; (ii) demand performance at no additional cost; or (iii) terminate this Contract in accordance with Section 25, Termination for Cause.

Within 10 business days from the date of Contractor’s receipt of notification of acceptance with deficiencies or rejection of any Contract Activities, Contractor must cure, at no additional cost, the deficiency and deliver unequivocally acceptable Contract Activities to the State. If acceptance with deficiencies or rejection of the Contract Activities impacts the content or delivery of other non-completed Contract Activities, the parties’ respective Program Managers must determine an agreed to number of days for re-submission that minimizes the overall impact to the Contract.

However, nothing herein affects, alters, or relieves Contractor of its obligations to correct deficiencies in accordance with the time response standards set forth in this Contract.

If Contractor is unable or refuses to correct the deficiency within the time response standards set forth in this Contract, the State may cancel the order in whole or in part.

The State, or a third party identified by the State, may perform the Contract Activities and recover the difference between the cost to cure and the Contract price plus an additional 10% administrative fee.

To the extent that Contract Activities includes the provision of a Services through the use of an online portal, as set forth the Schedule A, Statement of Work, Contractor must comply with the Service Level Agreement set forth in Schedule D of this Contract.

19. Reserved.

20. Reserved.

21. Reserved.

22. Invoices and Payment. Invoices must conform to the requirements communicated from time-to-time by the State. All undisputed amounts are payable within 45 days of the State’s receipt. Contractor may only charge for Contract Activities provided as specified in Schedule A. Invoices must include an itemized statement of all charges.

The State is exempt from State sales tax for direct purchases and may be exempt from federal excise tax, if Services purchased under this Agreement are for the State’s exclusive use. Notwithstanding the foregoing, all fees are exclusive of taxes, and Contractor is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by the State under this Contract.

The State has the right to withhold payment of any disputed amounts until the parties agree as to the validity of the disputed amount. The State will notify Contractor of any dispute within a reasonable time. Payment by the State will not constitute a waiver of any rights as to Contractor’s continuing obligations, including claims for deficiencies or substandard Contract Activities. Contractor’s acceptance of final payment by the State constitutes a waiver of all claims by Contractor against the State for payment under this Contract, other than those claims previously filed in writing on a timely basis and still disputed.

The State will only disburse payments under this Contract through Electronic Funds Transfer (EFT). Contractor must register with the State at http://www.michigan.gov/SIGMAVSS to receive electronic fund transfer payments. If Contractor does not register, the State is not liable for failure to provide payment.

Without prejudice to any other right or remedy it may have, the State reserves the right to set off at any time any amount then due and owing to it by Contractor against any amount payable by the State to Contractor under this Contract.

http://www.michigan.gov/SIGMAVSS

23. Liquidated Damages. Liquidated damages, if applicable, will be assessed as described in Schedule A. The parties understand and agree that any liquidated damages (which includes but is not limited to applicable credits) set forth in this Contract are reasonable estimates of the State’s damages in accordance with applicable law. The parties acknowledge and agree that Contractor could incur liquidated damages for more than 1 event. The assessment of liquidated damages will not constitute a waiver or release of any other remedy the State may have under this Contract for Contractor’s breach of this Contract, including without limitation, the State’s right to terminate this Contract for cause under Section 25 and the State will be entitled in its discretion to recover actual damages caused by Contractor’s failure to perform its obligations under this Contract. However, the State will reduce such actual damages by the amounts of liquidated damages received for the same events causing the actual damages. Amounts due the State as liquidated damages may be set off against any fees payable to Contractor under this Contract, or the State may bill Contractor as a separate item and Contractor will promptly make payments on such bills.

24. Stop Work Order. The State may suspend any or all activities under the Contract at any time. The State will provide Contractor a written stop work order detailing the suspension. Contractor must comply with the stop work order upon receipt. Within 90 calendar days, or any longer period agreed to by Contractor, the State will either: (a) issue a notice authorizing Contractor to resume work, or (b) terminate the Contract or delivery order. The State will not pay for Contract Activities, Contractor’s lost profits, or any additional compensation during a stop work period.

25. Termination for Cause. The State may terminate this Contract for cause, in whole or in part, if Contractor, as determined by the State: (a) endangers the value, integrity, or security of any location, data, or personnel; (b) becomes insolvent, petitions for bankruptcy court proceedings, or has an involuntary bankruptcy proceeding filed against it by any creditor; (c) engages in any conduct that may expose the State to liability; (d) breaches any of its material duties or obligations; or (e) fails to cure a breach within the time stated in a notice of breach. Any reference to specific breaches being material breaches within this Contract will not be construed to mean that other breaches are not material.

If the State terminates this Contract under this Section, the State will issue a termination notice specifying whether Contractor must: (a) cease performance immediately, or (b) continue to perform for a specified period. If it is later determined that Contractor was not in breach of the Contract, the termination will be deemed to have been a Termination for Convenience, effective as of the same date, and the rights and obligations of the parties will be limited to those provided in Section 26, Termination for Convenience.

The State will only pay for amounts due to Contractor for Contract Activities accepted by the State on or before the date of termination, subject to the State’s right to set off any amounts owed by the Contractor for the State’s reasonable costs in terminating this Contract. The Contractor must pay all reasonable costs incurred by the State in terminating this Contract for cause, including administrative costs, attorneys’ fees, court costs, transition costs, and any costs the State incurs to procure the Contract Activities from other sources.

26. Termination for Convenience. The State may immediately terminate this Contract in whole or in part without penalty and for any reason or no reason, including but not limited to, appropriation or budget shortfalls. The termination notice will specify whether Contractor must: (a) cease performance of the Contract Activities immediately, or (b) continue to perform the Contract Activities in accordance with Section 27 , Transition Responsibilities. If the State terminates this Contract for convenience, the State will pay all reasonable costs, as determined by the State, for State approved Transition Responsibilities.

27. Transition Responsibilities. Upon termination or expiration of this Contract for any reason, Contractor must, for a period of time specified by the State (not to exceed 60 calendar days), provide all reasonable transition assistance requested by the State, to allow for the expired or terminated portion of the Contract to continue without interruption or adverse effect, and/or to facilitate the orderly transfer of Contract Activities to the State or its designees as applicable. Such transition assistance may include, but is not limited to: (a) continuing to perform the Contract Activities at the established Contract rates; (b) taking all necessary and appropriate steps, or such other action as the State may direct, to preserve, maintain, protect, or return to the State all materials, data, property, and confidential information provided directly or indirectly to Contractor by any entity, agent, vendor, or employee of the State; and (c) preparing an accurate accounting from which the State and Contractor may reconcile all outstanding accounts (collectively, “Transition Responsibilities”). This Contract will automatically be extended through the end of the transition period.

28. Indemnification. Contractor must defend, indemnify and hold the State, its departments, divisions, agencies, offices, commissions, officers, and employees harmless from and against any and all actions, claims, losses, liabilities, damages, costs, attorney fees, and expenses (including those required to establish the right to indemnification) brought by a third party, arising out of or relating to: (a) any breach by Contractor (or any of Contractor’s employees, agents, subcontractors, or by anyone else for whose acts any of them may be liable) of any of the promises, agreements, representations, warranties, or insurance requirements contained in this Contract; (b) any infringement, misappropriation, or other violation of any intellectual property right or other right of any third party; and (c) any bodily injury, death, or damage to real or tangible personal property occurring wholly or in part due to action or inaction by Contractor (or any of Contractor’s employees, agents, subcontractors, or by anyone else for whose acts any of them may be liable).

The State will notify Contractor in writing if indemnification is sought; however, delay or failure to do so will not relieve Contractor, except to the extent that Contractor is materially prejudiced as a result of the State’s notification delay or failure. Contractor must, to the satisfaction of the State, demonstrate its financial ability to carry out these obligations.

The State is entitled to: (i) regular updates on proceeding status; (ii) participate in the defense of the proceeding at its own cost and expense; (iii) employ its own counsel at its own cost and expense; and to (iv) retain control of the defense, at its own cost and expense, if the State deems necessary. Contractor will not, without the State’s prior written consent (not to be unreasonably withheld), settle, compromise, or consent to the entry of any judgment in or otherwise seek to terminate any claim, action, or proceeding.

Any litigation activity on behalf of the State, or any of its subdivisions under this Section, must be coordinated with the Department of Attorney General. An attorney designated to represent the State may not do so until approved by the Michigan Attorney General and appointed as a Special Assistant Attorney General.

The State is constitutionally prohibited from indemnifying Contractor or any third parties.

29. Infringement Remedies. If, in either party’s opinion, any piece of equipment, software, commodity, or service supplied by Contractor or its subcontractors, or its operation, use or reproduction, is determined to be infringing a third party’s intellectual property or is enjoined, threatened to be enjoined or otherwise the subject of an infringement claim, Contractor must, at its expense: (a) procure for the State the right to continue using the equipment, software, commodity, or service, or if this option is not reasonably available to Contractor, (b) replace or modify the same so that it becomes non-infringing; or (c) accept its return by the State with appropriate credits to the State against Contractor’s charges and reimburse the State for any losses or costs incurred as a consequence of the State ceasing its use and returning it.

30. Limitation of Liability and Disclaimer of Damages. IN NO EVENT WILL THE

STATE’S AGGREGATE LIABILITY TO CONTRACTOR UNDER THIS CONTRACT,

REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT,

NEGLIGENCE, STRICT LIABILITY OR BY STATUTE OR OTHERWISE, FOR ANY

CLAIM RELATED TO OR ARISING UNDER THIS CONTRACT, EXCEED THE

MAXIMUM AMOUNT OF FEES PAYABLE UNDER THIS CONTRACT. The State is not liable for consequential, incidental, indirect, or special damages, regardless of the nature of the action.

CONTRACTOR’S LIABILITY ARISING OUT OF OR RELATED TO THIS

CONTRACT WILL NOT EXCEED THE MAXIMUM AMOUNT OF FEES PAYABLE

TO CONTRACTOR UNDER THIS CONTRACT. IN NO EVENT WILL CONTRACTOR

BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY

INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES

ARISING OUT OF OR RELATED TO THIS AGREEMENT.

THE CONTRACTOR’S LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION

DO NOT APPLY TO CONTRACTOR’S CONTRACTUAL OBLIGATIONS RELATED

TO STATE DATA, INFRINGEMENT, AND/OR INDEMNIFICATION; NOR WILL ANY

SUCH LIMITATION OF LIABILITY APPLY TO ANY ACTS OF GROSS

NEGLIGENCE, AND/OR WILLFUL MISCONDUCT OF CONTRACTOR (TO

INCLUDE ANY EMPLOYEE, SUBCONTRACTOR OR AGENT THEREOF).

STATE UNDERSTANDS AND AGREES THAT CONTRACTOR RELEASES ONLY

INFORMATION THAT HAS BEEN PROVIDED BY POSTSECONDARY

EDUCATIONAL INSTITUTIONS PARTICIPATING WITH CONTRACTOR.

ACCORDINGLY, CONTRACTOR DOES NOT WARRANT OR GUARANTEE THE

COMPLETENESS, ACCURACY OR RELIABILITY OF THE ENROLLMENT

INFORMATION IN ITS DATABASE. CONTRACTOR SPECIFICALLY DISCLAIMS

ANY RESPONSIBILITY OR LIABILITY FOR ERRORS OR OMISSIONS IN

INFORMATION PROVIDED BY EDUCATIONAL INSTITUTIONS, INCLUDING

DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES

RESULTING FROM STATE’S USE OF INFORMATION RELEASED BY

CONTRACTOR UNDER THIS CONTRACT.

31. Disclosure of Litigation, or Other Proceeding. Contractor must notify the State within 14 calendar days of receiving notice of any litigation, investigation, arbitration, or other proceeding (collectively, “Proceeding”) that involves any Contract Activities under this Contract or that would materially impact the ability of Contractor to perform the Contract Activities that Contractor provides to the State.

32. Reserved.

33. State Data.

a. Ownership. The State’s data (“State Data,” which will be treated by Contractor as Confidential Information) includes: (a) the State’s data, user data, and any other data collected, used, processed, stored, or generated as the result of the Contract Activities; (b) personally identifiable information (“PII“) collected, used, processed, stored, or generated as the result of the Contract Activities, including, without limitation, any information that identifies an individual, such as an individual’s social security number or other government-issued identification number, date of birth, address, telephone number, biometric data, mother’s maiden name, email address, credit card information, or an individual’s name in combination with any other of the elements here listed; and, (c) protected health information (“PHI”) collected, used, processed, stored, or generated as the result of the Contract Activities, which is defined under the Health Insurance Portability and Accountability Act (HIPAA) and its related rules and regulations. State Data is and will remain the sole and exclusive property of the State and all right, title, and interest in the same is reserved by the State. Notwithstanding anything to the contrary herein, the term “State Data” does not include any information or documentation that was or is: (a) already in the possession of the Contractor prior to the Effective Date of this Contract and not obtained from the State through a previous contract or (b) obtained from a source other than the State.

b. Contractor Use of State Data. Contractor is provided a limited license to State Data for the sole and exclusive purpose of providing the Contract Activities, including a license to collect, process, store, generate, and display State Data only to the extent necessary in the provision of the Contract Activities. Contractor must:

(a) keep and maintain State Data in strict confidence, using such degree of care as is appropriate and consistent with its obligations as further described in this Contract and applicable law to avoid unauthorized access, use, disclosure, or loss;

(b) use and disclose State Data solely and exclusively for the purpose of providing the Contract Activities, such use and disclosure being in accordance with this Contract, any applicable Statement of Work, and applicable law; (c) keep and maintain State Data in the continental United States and (d) not use, sell, rent, transfer, distribute, commercially exploit, or otherwise disclose or make available State Data for Contractor’s own purposes or for the benefit of anyone other than the State without the State’s prior written consent. Contractor's misuse of State Data may violate state or federal laws, including but not limited to MCL 752.795.

c. Extraction of State Data. Contractor must, within 5 business days of the State’s request, provide the State, without charge and without any conditions or contingencies whatsoever (including but not limited to the payment of any fees due to Contractor), an extract of the State Data then in its possession in the format specified by the State.

d. Reserved.

e. Loss or Compromise of Data.

In the event of any act, error or omission, negligence, misconduct, or breach on the part of Contractor that compromises the security, confidentiality, or integrity of State Data or has the potential to compromise State systems or computers, Contractor must, as applicable: (a) notify the State as soon as practicable but no later than 48 hours of becoming aware of such occurrence; (b) cooperate with the State in investigating the occurrence, including making available all relevant materials required to comply with applicable law or as otherwise required pursuant to the State’s PSPs; (c) in the case of PII or PHI, at the State’s sole election, (i) with approval and assistance from the State, notify the affected individuals who comprise the PII or PHI as soon as practicable but no later than is required to comply with applicable law, or, in the absence of any legally required notification period, within 30 calendar days of the date of the determination of the legal requirement to notify; or (ii) reimburse the State for any reasonable costs in notifying the affected individuals; (d) in the case of PII, provide third-party credit and identity monitoring services to each of the affected individuals who comprise the PII for the period required to comply with applicable law; (e) perform or take any other actions required to comply with applicable law as a result of the occurrence; (f) pay for any reasonable costs incurred as a result of the occurrence, including but not limited to any costs incurred by the State in investigating and resolving the occurrence, including reasonable attorney’s fees associated with such investigation and resolution (provided that nothing in this Section shall be interpreted to be Contractor granting the State the right to access and investigate Contractor’s systems or environments, unless such access or investigation is legally authorized or required); (g) without limiting Contractor’s obligations of indemnification as further described in this Contract, indemnify, defend, and hold harmless the State for any and all claims, including reasonable attorneys’ fees, costs, and incidental expenses, which may be suffered by, accrued against, charged to, or recoverable from the State in connection with the occurrence resulting from Contractor’s breach of any material provision under this Contract or Contractor’s negligent or more culpable acts or omissions, including without limitation recklessness or intentional misconduct; (h) be responsible for recreating any lost Response Files in the manner and on the schedule set by the State without charge to the State; and (i) provide to the State a detailed plan describing the measures Contractor will undertake to prevent a future occurrence. Notification to affected individuals, as described above, must comply with applicable law, be written in plain language, not be tangentially used for any solicitation purposes, and contain, at a minimum: contact information of Contractor; a list of the types of data involved; the known or approximate date of the loss; how such loss may affect the affected individual; what steps Contractor has taken to protect the affected individual; what steps the affected individual can take to protect himself or herself; contact information for major credit card reporting agencies; and, if applicable, information regarding the credit and identity monitoring services to be provided by Contractor. The State will have the option to review any notification sent to affected individuals prior to its delivery. If State is unsatisfied with the contents of the notification it may raise such concerns to Contractor, but Contractor shall not be required to make any changes to the notification. State may elect to perform its own notifications if it is not satisfied with the final notification template offered by Contractor. Notification to any other party, including but not limited to public media outlets, must be reviewed and approved by the State in writing prior to its dissemination if the same will name the State. The parties agree that any damages relating to a breach of this Section Error! Reference source not found.33 are to be considered direct damages and not consequential damages.

34. Non-Disclosure of Confidential Information. The parties acknowledge that each party may be exposed to or acquire communication or data of the other party that is confidential, privileged communication not intended to be disclosed to third parties.

a. Meaning of Confidential Information. For the purposes of this Contract, the term

“Confidential Information” means all information and documentation of a party that: (a) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such party; (b) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing party and marked “confidential” or with words of similar meaning; or, (c) should reasonably be recognized as confidential information of the disclosing party. The term “Confidential Information” does not include any information or documentation that was or is: (a) subject to disclosure under the Michigan Freedom of Information Act (FOIA); (b) already in the possession of the receiving party without an obligation of confidentiality; (b) developed independently by the receiving party, as demonstrated by the receiving party, without violating the disclosing party’s proprietary rights; (c) obtained from a source other than the disclosing party without an obligation of confidentiality; or, (d) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through, or on behalf of, the receiving party). For purposes of this Contract, in all cases and for all matters, State Data is deemed to be Confidential Information.

b. Obligation of Confidentiality. The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with this Contract or to use such Confidential Information for any purposes whatsoever other than the performance of this Contract. The parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep all Confidential Information confidential.

Disclosure to a subcontractor is permissible where: (a) use of a subcontractor is authorized under this Contract; (b) the disclosure is necessary or otherwise naturally occurs in connection with work that is within the subcontractor's responsibilities; and (c) Contractor obligates the subcontractor in a written contract to maintain the State's Confidential Information in confidence. At the State's request, any employee of Contractor or any subcontractor may be required to execute a separate agreement to be bound by the provisions of this Section.

Notwithstanding anything to the contrary in this subsection, nothing in this Section shall prevent the State from complying with its obligations under the Michigan Freedom of Information Act (FOIA).

c. Cooperation to Prevent Disclosure of Confidential Information. Each party must use its best efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the foregoing, each party must advise the other party immediately in the event either party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Contract and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.

d. Remedies for Breach of Obligation of Confidentiality. Each party acknowledges that breach of its obligation of confidentiality may give rise to irreparable injury to the other party, which damage may be inadequately compensable in the form of monetary damages. Accordingly, a party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available, to include, in the case of the State, at the sole election of the State, the immediate termination, without liability to the State, of this Contract or any Statement of Work corresponding to the breach or threatened breach.

e. Surrender of Confidential Information upon Termination. Upon termination of this Contract or a Statement of Work, in whole or in part, each party must, within

30 calendar days from the date of termination, return to the other party any and all Confidential Information received from the other party, or created or received by a party on behalf of the other party, which are in such party’s possession, custody, or control; provided, however, that Contractor must return State Data to the State following the timeframe and procedure described further in this Contract. Should Contractor or the State determine that the return of any Confidential Information is not feasible, such party must destroy the Confidential Information, (which for Contractor, includes State Data), from all media including backups and must certify the same in writing within 30 calendar days from the date of termination to the other party. However, the State’s legal ability to destroy Contractor data may be restricted by its retention and disposal schedule, in which case Contractor’s Confidential Information will be destroyed after the retention period expires.

35. Data Privacy and Information Security.

a. Undertaking by Contractor. Without limiting Contractor’s obligation of confidentiality as further described, Contractor is responsible for establishing and maintaining a data privacy and information security program, including physical, technical, administrative, and organizational safeguards, that is designed to: (a) ensure the security and confidentiality of the State Data; (b) protect against any anticipated threats or hazards to the security or integrity of the State Data; (c) protect against unauthorized disclosure, access to, or use of the State Data; (d) ensure the proper disposal of State Data; and (e) ensure that all employees, agents, and subcontractors of Contractor, if any, comply with all of the foregoing.

Contractor must comply with the requirements of the Data Security Schedule, found in Schedule E.

b. Reserved.

c. Reserved.

d. Reserved.

e. State’s Right to Termination for Deficiencies. The State reserves the right, at its sole election, to immediately terminate this Contract or a Statement of Work without limitation and without liability if the State determines that Contractor fails or has failed to meet its obligations under this Section.

36. Reserved.

37. Reserved.

38. Records Maintenance, Inspection, Examination, and Audit. Pursuant to MCL

18.1470, the State or its designee may audit Contractor to verify compliance with this Contract. Contractor must retain and provide to the State or its designee and the auditor general upon request, all records related to the Contract through the term of the Contract and for 3 years after the latter of termination, expiration, or final payment under this Contract or any extension (“Audit Period”). If an audit, litigation, or other action involving the records is initiated before the end of the Audit Period, Contractor must retain the records until all issues are resolved.

39. Representations and Warranties. Contractor represents and warrants: (a) Contractor is the owner or licensee of any Contract Activities that it licenses, sells, or develops and Contractor has the rights necessary to convey title, ownership rights, or licensed use; (b) all Contract Activities are delivered free from any security interest, lien, or encumbrance and will continue in that respect; (c) the Contract Activities will not infringe the patent, trademark, copyright, trade secret, or other proprietary rights of any third party; (d) Contractor must assign or otherwise transfer to the State or its designee any manufacturer's warranty for the Contract Activities; (e) the Contract Activities are merchantable and fit for the specific purposes identified in the Contract;

(f) the Contract signatory has the authority to enter into this Contract; (g) all information furnished by Contractor in connection with the Contract fairly and accurately represents Contractor's business, properties, finances, and operations as of the dates covered by the information, and Contractor will inform the State of any material adverse changes that may threaten Contractor’s ability to perform under this Contract;(h) all information furnished and representations made in connection with the award of this Contract is true, accurate, and complete, and contains no false statements or omits any fact that would make the information misleading; and that (i) Contractor is neither currently engaged in nor will engage in the boycott of a person based in or doing business with a strategic partner as described in 22 USC 8601 to 8606. A breach of this Section is considered a material breach of this Contract, which entitles the State to terminate this Contract under Section 25 , Termination for Cause.

40. Conflicts and Ethics. Contractor will uphold high ethical standards and is prohibited from: (a) holding or acquiring an interest that would conflict with this…