240000000682.pdf

NOTICE OF CONTRACT

NOTICE OF CONTRACT NO. 240000000682 .

between

THE STATE OF MICHIGAN

and

C O

N

TR

A C

TO

R

Swag Force

ST

A

TE

Pr og ra m

M an ag er Kristen Hampton DTMB

2512 South IH 35 Suite 100 Phone Number

Austin, TX 78704 HamptonK@michigan.gov

Matt Barry

C on tra ct

Ad m in is tra to r Bethany Preston DTMB

866-424-0020 x 0361 Phone Number

Matt.B@swagforce.co PrestonB2@michigan.gov

VC0019232

CONTRACT SUMMARY

DESCRIPTION:

INITIAL EFFECTIVE DATE INITIAL EXPIRATION DATE

INITIAL AVAILABLE

OPTIONS

EXPIRATION DATE BEFORE

CHANGE(S) NOTED BELOW

May 2, 2024 May 1, 2029 Five (5) 1-year May 1, 2029

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 RFP 240000001364. 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 $250,000.00

STATE OF MICHIGAN PROCUREMENT

Department of Technology, Management, and Budget 320 S. Walnut St. Lansing, MI 48933

CONTRACT NO. 240000000582

FOR THE CONTRACTOR:

Company Name

Authorized Agent Signature

Authorized Agent (Print or Type)

Date

FOR THE STATE:

Signature

Name & Title

Agency

Date

Michigan .gov/MiProcure ment

Version 2023-1

SCHEDULE A – STATEMENT OF WORK

CONTRACT ACTIVITIES

Request for Proposal (RFP) No. 240000001364 Promotional Item Catalog and Centralized Ordering System

This schedule identifies the anticipated requirements of any Contract resulting from this RFP. The term “Contractor” in this document refers to a bidder responding to this RFP, as well as the Contractor who is awarded the contract. The term “bidder” is used to identify where specific responses to the RFP are required.

The Contractor must respond to each requirement or question and explain how it will fulfill each requirement. Attach any supplemental information and appropriately reference within your response.

BACKGROUND

The State of Michigan’s Print and Mail Management (PMM) is looking for a company (contractor) to provide a customized website catalog and centralized ordering system for advertising specialty/novelty items (swag items). PMM remains focused on offering state agencies swag items with a diverse product line. The development of a Centralized Swag Program (CSP) is intended to streamline the ordering process and reduce associated costs. We believe that competitively bidding these services will create efficiencies, improve the customer experience, and reduce costs.

SCOPE

The contractor shall provide all personnel, materials, software, supervision, training, installation, and other items necessary to perform the services as described in this Statement of Work to provide a customized website catalog and centralized ordering system for swag items.

1. REQUIREMENTS

a. Create a customized, user-friendly website

i. Hosted by contractor at no cost to DTMB PMM.

ii. Website should include customization options, including:

1. Ability to turn off/hide pricing for customer view.

a. This is not an ability that is offered at this time, but could be considered as an option for future development.

2. Ability to limit/disallow items in catalog.

iii. Website must be DTMB PMM branded.

iv. Website must be accessible to SOM employees only.

v. Website must restrict ordering to only PMM employees or their delegates.

1. The website is not crawlable by search engines. It will only be found by those who are provided access. PMM will be advised on best practices so that outside access is extremely unlikely. Only PMM employees or delegates will be able to use the website for ordering.

vi. Website must be available 24-hours per day, 7 days per week, including holidays.

b. Novelty/SWAG Products

i. Includes both imprinted and blank products of all types; including but not limited to:

1. Mugs

2. Cups

3. Straws

4. Pins

5. Shirts

6. Pens

7. Pencils

8. Hats

9. Magnets

ii. All vendors used should be based in the continental US.

1. 95% of suppliers are U.S. based. There are a remaining few located overseas. These suppliers are used for a few popular products that are decorated solely by them. Outside of these products these suppliers are used for large quantity orders where it is more cost effective to partner with an international supplier. The majority of products are completed by domestic suppliers.

iii. Overrun products cannot be sold or distributed to the public.

iv. Any use of branded products for contractor-specific marketing purposes is prohibited.

v. Contractor must have products available with multiple vendor options an competitively bid pricing.

1. A large network of suppliers is utilized. Many of our products are featured with multiple suppliers. Many of our suppliers offer similar (but not exact) products. This means we are able to shop requests around to different suppliers to ensure customers are getting the most competitive pricing. This also positions us better to fulfill rush orders, overcome stock shortages, and avoid lengthy lead times due to production delays.

c. Logo Protection

i. SOM logos and branding must be protected. At no time should any logo or image be used outside the contract or for any other client.

ii. Strict adherence to licensing guidelines and requirements.

d. Graphic Design and Proofing

i. Graphic design services must be available, but not required to be used.

ii. Proofs required for all items.

iii. Proofs must be received by PMM within 24-hours of request.

iv. No production can begin until all approvals are received by contractor.

e. Timeliness

i. 24-hour (or less) responsiveness to inquiries and customer-service related duties.

ii. Contractor must meet agreed upon delivery dates, per individual project timelines.

iii. Repetitive failure to do so may result in cancellation of the contract.

f. Invoicing

i. Contractors to provide an itemized invoice for each individual order to PMM after product shipment.

The Contractor may offer an alternate bid that varies from the specifications. An alternate bid must clearly describe all variances from the specifications and the proposal must include descriptive literature that contains complete specifications, if available.

1.1. Warranties

Describe any warranties included in the bid and provide the length of the warranty.

Explain the process for reporting warranty issues and how the Contractor how any repairs or replacements are made, including timing. If the warranty is provided through a third-party or manufacturer, the Contractor must confirm that the manufacturer’s warranty passes through to the State. Provide the name, address, contact name, phone number and email address of the party responsible for the warranty.

The State reserves the right to require additional warranties other than those identified by the Contractor in its response to this RFP.

1.2. Recall Requirements and Procedures

The Contractor must describe any recall procedures.

1.3. Quality Assurance Program

Explain your Quality Assurance Program(s).

1.4. Incentives

Explain any special incentives or services including, but not limited to, return policies, trade-in programs, quantity discounts, etc.

1.5. Transition

A. [RESERVED]

B. Post-Contract Transition: Invoices must be sent within 45 days after expiration of contract. Any invoices received after 45 days will result in a non-payment of invoice.

2. Service Requirements

2.1. Time Frames

All Contract Activities must be delivered within specified timeframes outlined on each individual order. The receipt of order date is pursuant to the Notices section of the Standard Contract Terms.

2.2. Delivery

Delivery will be expected within specified timeframes outlined on each individual order between the hours of 8:00am and 3:00pm. Delivery will be made at 7461 Crowner Drive, Dimondale, Michigan 48821.

2.3. [RESERVED]

2.4. Project Prevailing Wage Requirements, applicable only if construction or installation is required as part of Contract Activities

The Contractor (and its Subcontractors) must pay all mechanics and laborers employed directly on the site of the work, unconditionally and at least once a week, and without subsequent deduction or rebate on any account, the full amounts accrued at time of payment, computed at wage rates not less than those stated in the advertised specifications as prevailing wages based on locality, regardless of any contractual relationship which may be alleged to exist between the Contractor or subcontractor and the laborers and mechanics.

Contractor must post the scale of wages to be paid in a prominent and easily accessible place at the site of the work.

2.5. Technical Support and Repairs

When providing technical support, the Call Center must resolve the caller’s issue within 4 hours.

2.6. [RESERVED]

2.7. [RESERVED]

2.8. Reporting

The contractor must explain its reporting capabilities, any reporting that is included in its proposal, and any additional reporting capabilities.

2.9. Meetings

The Contractor must schedule a kick-off meeting within 14 days of award of the contract.

The State may request other meetings as it deems appropriate.

3. Staffing

3.1. Contractor Representative

The Contractor must appoint a minimum of one customer service representative specifically assigned to the State of Michigan PMM account who will respond to State inquiries regarding the Contract Activities, answer questions related to ordering and delivery, etc. (the “Contractor Representative”).

The Contractor must notify the Contract Administrator at least 5 calendar days before removing or assigning a new Contractor Representative.

3.2. [RESERVED]

3.3. [RESERVED]

3.4. Organizational Chart

Provide an overall organizational chart that details staff members, by name and title, and subcontractors.

3.5. Customer Service Toll-Free Number

The Contractor must specify its toll-free number for the State to contact the Contractor Representative who must be available for calls during the hours of 8 am to 5 pm EST Monday through Friday, at a minimum. Identify customer service availability for this proposal by hours and days of the week.

a. Swagforce will issue a dedicated toll free number for the PMM Swagforce partnership. The phone number will be listed on the website so that customers can call the dedicated account manager when they have product questions or need customer service support.

b. The number will be monitored by the dedicated account manager from 8:30a to 5:30p CST Monday through Friday. Outside of those hours it will be monitored by our customer service team.

3.6. Technical Support, Repairs and Maintenance [RESERVED]

3.7. Disclosure of Subcontractors

If the Contractor intends to utilize subcontractors, the Contractor must disclose the following:

The legal business name; address; telephone number; a description of subcontractor’s organization and the services it will provide; and information concerning subcontractor’s ability to provide the Contract Activities.

The relationship of the subcontractor to the Contractor. Of the total bid, the price of the subcontractor’s work. Whether the Contractor has a previous working experience with the subcontractor. If yes, provide the details of that previous relationship.

A complete description of the Contract Activities that will be performed or provided by the subcontractor.

Geographically Disadvantaged Business Enterprise Sub-Contractors:

[RESERVED]

3.8. [RESERVED]

4. Pricing

4.1. [RESERVED]

4.2. [RESERVED]

4.3. [RESERVED]

5. Ordering

5.1. Authorizing Document

The appropriate authorizing document for the Contract will be a zero dollar purchase order.

5.2. Order Verification

The Contractor must have internal controls approved by Financial Services, to verify abnormal orders and to ensure that only authorized individuals place orders.

6. Delivery

6.1. Delivery Programs

The Contractor must explain in detail its delivery programs (e.g., standard delivery and quick-ship), including any limitations such as quantity.

The Contractor must explain the transportation method (e.g., UPS, FedEx, Contractor fleet, or other third-party carrier) it intends on utilizing in delivery of the Contract Activities.

6.2. Packaging and Palletizing

Packaging must be optimized to permit the lowest freight rate. Shipments must be palletized whenever possible using manufacturer's standard 4-way shipping pallets.

7. Acceptance

7.1. [RESERVED]

7.2. Final Acceptance

Final Acceptance to be given when completed customized website is created.

8. Invoice and Payment

8.1. Invoice Requirements

All invoices submitted to the State must include: (a) date; (b) purchase order; (c) quantity; (d) description of the Contract Activities; (e) unit price; (f) shipping cost (if any);

(g) vendor-generated invoice number and (h) total price.

8.2. Payment Methods

The State will make payment for Contract items via purchase order or PCard.

Users of this contract could potentially place orders via Procurement Card (PCard).

Please explain your process for ordering and accepting this payment method. If an account needs to be created on your purchasing platform, please submit documentation that shows the steps for completing this process.

8.3. Procedure

Invoices should be sent to the Program Manager following shipment of each individual order.

9. Project Plan The contractor shall submit a proposed project plan with timelines for creation, testing and implementation of website. The Contractor will carry out this project under the direction and control of the Program Manager.

Upon Contract Award: A final project plan must be submitted for final approval within 14 calendar days of the Effective Date. The plan must also include: (a) the Contractor's organizational chart with names and title of personnel assigned to the project, which must align with the staffing stated in accepted proposals; and (b) the project breakdown showing sub-projects, tasks, and resources required.

10. Licensing Agreement The Contractor must provide a copy of any applicable licensing agreement.

11. [RESERVED]

12. [RESERVED]

12.1. Environmental and Energy Efficiency Product Standards

12.2. Hazardous Chemical Identification

In accordance with the federal Emergency Planning and Community Right-to-Know Act, 42 USC 11001, et seq., as amended, the Contractor must provide a Material Safety Data Sheet listing any hazardous chemicals as defined in 40 CFR §370.2, to be delivered. Each hazardous chemical must be properly identified, including any applicable identification number, such as a National Stock Number or Special Item Number.

The Contractor must identify any hazardous chemicals that will be provided under any resulting contract.

12.3. Mercury Content

Pursuant to MCL 18.1261d, mercury-free products must be procured when possible.

The Contractor must explain if it intends to provide products containing mercury, the amount or concentration of mercury, and whether cost competitive alternatives exist. If a cost competitive alternative does exist, the Contractor must provide justification as to why the particular product is essential. All products containing mercury must be labeled as containing mercury.

12.4. Brominated Flame Retardants

The State prefers to purchase products that do not contain brominated flame retardants (BFRs) whenever possible. The Contractor must disclose whether the products contain BFRs and describe how the products are identified or otherwise labelled.

12.5 Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS)

The Contractor must confirm that the provided products do not intentionally contain PFAS. This consists of all components of the provided products, including product packaging.

OR

The Contractor must disclose whether a product or its components contain intentionally added PFAS. If the product or its components contain intentionally added PFAS the Contractor must:

a. provide an explanation with respect to the intentionally added PFAS contents, including the purpose for which PFAS are used in the product or its components, the types of PFAS used in the product or its components, and the amount of each PFAS used in the product or its components.

b. indicate whether the product will be labeled or packaged with information about the intentionally added PFAS contents.

c. identify any alternative products that do not contain intentionally added PFAS.

d. provide any additional information that would further the Department’s implementation of ED 2021-08.

13. Service-Level Agreements (SLAs)

a. The Contractor will be held accountable to meet the requirements and the service level requirements established in this Contract.

https://content.govdelivery.com/attachments/MIEOG/2021/10/27/file_attachments/1978458/ED%202021-08.pdf

b. The State reserves the right to reconsider or amend SLA amounts for split awards should they occur.

c. Please Note: Should Contractors require clarification or have any questions with regard to the SLAs, they should submit them during the Question and Answer Period of this solicitation; please see the Proposal Instructions for the timeline.

Service Level Agreements for this Contract will be as follows:

SLA Metric 1. Timely Deliveries Definition and Purpose All orders must be delivered within the timeline established for each individual project..

The Contractor must ensure that items and quantities delivered are exactly the items, brands, and quantities on the Order Confirmation.

No substitutions will be allowed without prior written permission by Program Manager and a Change Notice executed by the Contract Administrator.

The entire order will be received on the same day unless a partial delivery has been approved in advance by the Program Manager.

Acceptable Standard 1. All deliveries must occur in accordance with the approved delivery schedule for each Facility and Facility Receiving hours. See Section 2.2.

2. Extenuating circumstances must be communicated by the Contractor to the Program Manager prior to the scheduled delivery date and time.

3. Items, brands, and quantities delivered will match the Order Confirmation exactly.

4. Signed and dated packing slips will be provided to Department of Technology Management and Budget at the time of delivery.

5. The entire order must be delivered on the same day unless a partial delivery has been approved in advance by the Program Manager.

6. Orders not received in their entirety, as determined by a review of the Data Sources, will be considered inaccurate.

The acceptable standard is 100% compliance.

Credit Due for Failing to Meet the Service Level Agreements

1. $100.00 may be assessed for each of the first five occurrences of non-compliance in a given calendar year.

2. $500.00 may be assessed beginning with the sixth occurrence of non-compliance and on each occurrence thereafter in a given calendar year.

SLA Metric 1. Timely Deliveries

Extenuating circumstances will be reviewed by the Program Manager before any Service Credits are assessed.

At the discretion of the State, these credits may be applied toward any payable due to the Contractor or be payable directly to the State.

Payments made directly to the state will be completed within 10 days of notice of assessment.

2023-1

Vendor is deemed to have accepted these terms upon the earliest of vendor’s: written acceptance of these terms; commencement of work; receipt of payment; or submission of a bid, proposal, or other offer in response to a solicitation.

1. General. Vendor’s failure to deliver or comply with any of these terms, may result in damages against the Vendor and the termination of the Contract.

2. Delivery, Title and Risk of Loss. Vendor must pay all costs associated with packaging, freight, and shipping, and must ship all deliverables F.O.B. destination, inside delivery, unless otherwise specified in the Contract. Title and risk of loss or damage to deliverables remains with Vendor until the deliverables have been received, inspected and accepted by the State in accordance with these terms.

All containers and packaging become the State’s exclusive property upon final acceptance. Vendor shall ensure that all deliverables and services (“Deliverables”) are provided to the State by the date and time specified on the Contract. If Vendor fails to provide the Deliverables in accordance with the Contract, the State may reject the delivery and terminate the Contract without any termination charges or penalties, and Vendor must pay all associated costs, including, but not limited to, expedited routing costs, return shipping charges, the procurement of the Deliverables from another source, and any storage removal, or disposal expenses. The risk of loss of rejected or non-conforming Deliverables remains with Vendor. Rejected Deliverables not removed by Vendor within 10 calendar days will be deemed abandoned by Vendor, and the State will have the right to dispose of such Deliverables as its own property. Vendor is responsible for filing, processing, and collecting all damage claims.

3. Inspection. The State may inspect the work and activities of Vendor, and its subcontractors, at all reasonable times and places before, during and after delivery of the Deliverables. All Deliverables are subject to final inspection and acceptance by the State notwithstanding any prior payments or inspections. Final inspection will take place within 30 calendar days of the later of the delivery date, installation, or completion of services. If any Deliverables are non-conforming or defective, the State is entitled to, at its option and at Vendor’s expense: (a) a refund; (b) a credit; or (c) correction or replacement. If Vendor fails to correct defects or replace non-conforming Deliverables within 10 calendar days, the State may, in addition to its other remedies: (i) reject such Deliverables; (ii) accept such Deliverables at a discount; or (iii) make such corrections or replace such Deliverables and charge Vendor any resulting costs incurred by the State plus an additional 10% administrative fee.

4. Payment. Invoices must include an itemized statement of all charges. All undisputed amounts are payable within 45 calendar days of the later of the State’s: (a) receipt of an invoice; or (b) final acceptance of the Deliverables. The State is exempt from State sales tax for direct purchases and may be exempt from federal excise tax, if Deliverables purchased under the Contract are for the State’s exclusive use. Notwithstanding the foregoing, all fees are inclusive of taxes, and Vendor is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by federal, state or local government entities on any amounts payable by the State. The State may withhold payment in whole or in part for Deliverables the State determines are defective, untimely, or otherwise non-conforming to the Contract. All amounts due and payable by the State to Vendor shall be subject to deduction or setoff by the State against any claim the State may have against Vendor whether arising out of the Contract or any other transactions with the State. The State will only disburse payments through Electronic Funds Transfer (EFT). If Vendor does not register to receive payments at http://www.michigan.gov/SIGMAVSS, the State is not liable for failure to provide payment.

5. Warranties and Representations. Vendor represents and warrants: (a) all Deliverables furnished under the Contract will conform to all specifications and industry standards, and will be free from defects, including, where applicable and without limitation, defects in material, workmanship, and title;

STATE OF MICHIGAN

PROCUREMENT

STANDARD CONTRACT TERMS (SHORT FORM)

http://www.michigan.gov/SIGMAVSS

(b) Vendor is the owner or licensee of all Deliverables it licenses, sells, or develops and Vendor has the rights necessary to convey title, ownership rights, or licensed use; (c) all Deliverables are provided free from any security interest, lien, or encumbrance and will continue in that respect; (d) the Deliverables will not infringe the patent, trademark, copyright, trade secret, or other proprietary rights of any third party; (e) Vendor must assign or otherwise transfer to the State or its designee any manufacturer's warranty for the Deliverables; (f) Vendor will not negate, exclude, limit, or modify in any warranty otherwise available to the State in any way; (g) the Deliverables are merchantable and fit for the State’s intended use ; (h) the Deliverables furnished will conform in all respects to samples, advertisements, and other forms of representation made to the State; (i) the Contract signatory has the authority to enter into the Contract; (j) all information furnished and representations made in connection with the Contract is true, accurate, and complete, and contains no false statements or omits any fact that would make the information misleading, and the (k) Vendor 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. Vendor agrees to promptly replace or correct any Deliverables not conforming to the foregoing warranty, without expense to the State, when notified of such non-conformity by the State. A breach of this Section is a material breach of the Contract.

6. Termination for Cause. The State may terminate the Contract, in whole or in part, at any time for cause in the event Vendor fails to comply with any of these terms, including, without limitation, late delivery or performance, the delivery of defective or non-conforming Deliverables, or failure to provide the State with reasonable assurances of future performance. In the event of termination for cause, the State will not be liable to Vendor for any amount, and Vendor will be liable to the State for any and all damages, including but not limited to, administrative fees, court costs, attorney fees, and cover costs.

Any ineffectual termination for cause is hereby deemed a termination for convenience, effective as of the same date and limited to those rights.

7. Termination for Convenience. The State may immediately terminate the Contract, in whole or in part, without penalty and for any reason or no reason, including but not limited to, appropriation or budget shortfalls. Upon termination for convenience, the State will only pay for those Deliverables, not including standard stock, then in progress and which cannot be returned under these terms.

8. Indemnification. Vendor must defend, indemnify and hold the State, all of its instrumentalities, and employees harmless, without limitation, 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), arising out of or relating to: (a) any breach by Vendor (or any of Vendor’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 other requirements contained in the Contract;

(b) any infringement, misappropriation, or other violation of any intellectual property right or other right of any third party; (c) any bodily injury, death, or damage to real or tangible personal property occurring wholly or in part due to action or inaction by Vendor (or any of Vendor’s employees, agents, subcontractors, or by anyone else for whose acts any of them may be liable); and (d) any acts or omissions of Vendor (or any of Vendor’s employees, agents, subcontractors, or by anyone else for whose acts any of them may be liable). Due to constitutional prohibitions, the State will not indemnify Vendor, or its employees or affiliates, for any reason whatsoever.

9. Confidentiality. Vendor agrees that any information, including State Data, disclosed by the State in relation to the Contract will be used only in the performance thereof. Vendor will keep the information confidential, will not disclose it to any third party, except as authorized by the State, and will only disclose it to those within its organization who need it for performance of the Contract. Upon completion or termination of the Contract, Vendor will return all such information to the State, or make such other disposition thereof as directed or approved by the State. No item furnished under the Contract, or tools, plans, designs, or specifications for producing the same, which have been specifically designed for or by the State, will be duplicated or used by Vendor. Nothing in this provision will restrict Vendor’s right to use or disclose any information which is or becomes known to the public without breach of this provision by Vendor or is rightfully obtained without restriction from other sources.

10. Proprietary Rights. All materials, tools, plans, designs, specifications, equipment, and other property either furnished by the State to Vendor or paid for by the State, will remain the property of the State, but the Vendor assumes the risks of, and will be responsible for, any loss or damage, until returned in good order to the State. Such property must be safely stored and properly maintained by Vendor. Upon completion of this Contract, Vendor will return such property to the State or to any other entity as the State may direct, in the condition in which it was received, manufactured or procured by Vendor, except for reasonable wear and tear and except if such property has been incorporated into the Deliverables.

11. State Data. All data and information provided to Vendor by or on behalf of the State, and all data and information derived therefrom, is the exclusive property of the State (“State Data”) and may only be used as specifically required by the Contract; this definition is to be construed as broadly as possible.

Upon request, Vendor must provide to the State, or its third-party designee, all State Data within 10 calendar days of the request and in the format requested by the State. Vendor will assume all costs incurred in compiling and supplying State Data. No State Data may be used for any marketing purposes.

12. Intellectual Property. Unless otherwise stated in the Contract, Vendor: (a) agrees that any computer program, software, documentation, copyrightable work, discoveries, inventions or improvements developed by Vendor resulting from supplying the Deliverables are the property of the State; and (b) hereby assigns all rights therein to the State. Vendor further agrees to provide the State with any assistance which the State may require to obtain patents or copyright registrations.

13. Limitation of Liability. The State is not liable for consequential, incidental, indirect, or special damages, regardless of the nature of the action. Under no circumstances will the State be liable for any amounts, in whatever form, in excess of the total aggregate value set forth in the Contract.

14. Records Maintenance, Inspection, Examination, and Audit. The State or its designee may audit Vendor to verify compliance with the Contract. Vendor must retain and provide to the State or its designee and the auditor general upon request, all financial and accounting records related to the Contract through the term of the Contract and for 4 years after the latter of termination, expiration, or final payment under the Contract or any extension.

15. Notices. All notices and other communications required or permitted under the 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.

16. Modifications. The Contract may not be amended except by signed agreement between the parties (a “Change Notice”).

17. Independent Contractor. Vendor is an independent contractor and assumes all rights, obligations and liabilities set forth in the Contract. Vendor, its employees, and agents are not considered employees of the State.

18. Subcontracting and Assignment. Vendor may not delegate or assign any of its obligations or rights under the Contract without the prior written approval of the State.

19. Compliance with Laws and Policies. Vendor must comply with all applicable federal, state and local laws, rules and regulations. Vendor must also comply with all applicable State physical and IT security policies and standards, which will be made available upon request

20. Nondiscrimination. Under the Elliott-Larsen Civil Rights Act, 1976 PA 453, MCL 37.2101, et seq., the Persons with Disabilities Civil Rights Act, 1976 PA 220, MCL 37.1101, et seq., and Executive Directive 2019-09. Vendor and its subcontractors agree not to discriminate against an employee or applicant for employment with respect to hire, tenure, terms, conditions, or privileges of employment, or a matter directly or indirectly related to employment, because of race, color, religion, national origin, age, sex (as defined in Executive Directive 2019-09), height, weight, marital status, partisan considerations, any mental or physical disability, or genetic information that is unrelated to the person’s ability to perform the duties of a particular job or position. Breach of this covenant is a material breach of the Contract.

21. Unfair Labor Practice. Under MCL 423.324, the State may void any Contract with a Contractor, Vendor, or subcontractor who appears on the Unfair Labor Practice register compiled under MCL 423.322.

22. Governing Law. The Contract is governed, construed, and enforced in accordance with Michigan law, excluding choice-of-law principles, and all claims relating to or arising out of the Contract are governed by Michigan law, excluding choice-of-law principles. Any dispute arising from the PO must be resolved https://www.michigan.gov/whitmer/0,9309,7-387-90499_90704-486781--,00.html https://www.michigan.gov/whitmer/0,9309,7-387-90499_90704-486781--,00.html in Michigan Court of Claims. Vendor hereby waives any objections, such as lack of personal jurisdiction or forum non conveniens. Vendor must appoint agents in Michigan to receive service of process.

23. Non-Exclusivity. Nothing contained in the Contract is intended nor will be construed as creating any requirements contract with Vendor. The Contract does not restrict the State or its agencies from acquiring similar, equal, or like Deliverables from other sources.

24. Force Majeure. Neither party will be in breach of the Contract because of any failure arising from any disaster or acts of god that are beyond their control and without their fault or negligence. Each party will use commercially reasonable efforts to resume performance. Vendor will not be relieved of a breach or delay caused by its subcontractors. If immediate performance is necessary to ensure public health and safety, the State may immediately contract with a third party.

25. Media Releases. News releases (including promotional literature and commercial advertisements) pertaining to the Contract or project to which it relates must not be made without prior written State approval, and then only in accordance with the explicit written instructions of the State. Vendor will provide the State, for its review, copies of all presentations or articles being submitted for publication at least 30 calendar days in advance.

26. Website Incorporation. The State is not bound by any content on Vendor’s website unless expressly incorporated directly into the Contract.

27. Severability. If any part of the Contract, or these terms, is held invalid or unenforceable, by any court of competent jurisdiction, that part will be deemed deleted and the severed part will be replaced by agreed upon language that achieves the same or similar objectives. The remaining Contract terms will continue in full force and effect.

28. Waiver. Failure to enforce any provision of the Contract, or these terms, for any period of time will not constitute a waiver.

29. Survival. The provisions of these terms that impose continuing obligations, including warranties and representations, termination, indemnification, intellectual property, and confidentiality, will survive the expiration or termination of the Contract.

30. Entire Contract. The Contract and these terms constitute the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. No terms on any invoice, quote, purchase order, website, browse-wrap, shrink-wrap, click-wrap or other non-negotiated terms and conditions provided with any of the Deliverables (including software and hardware) or documentation, whether by Vendor, Contractor, subcontractor, or any third-party, will constitute a part or amendment of the Contract or is binding on the State or any authorized user for any purpose.

Version 2022-2

SCHEDULE B - PRICING

Request For Proposal No. 240000001364 Promotional Catalog and Centralized Ordering System

There are no costs to the SOM and PMM to setup and operate Swagforce. If PMM requests additional features beyond the proposed scope that are unique to their needs and have no application to other Swagforce partners, then we will ask that PMM share in the development costs. Those costs would be quoted after the scope of the project is determined.