250000000656.pdf

STATE OF MICHIGAN PROCUREMENT

Department Technology, Management and Budget 320 S Walnut Street Lansing, MI 48933

NOTICE OF CONTRACT

between

THE STATE OF MICHIGAN

and

555 12th Street N.W., Suite 1000

Washington DC 20004

Angelique Williams

202-624-5808 angelw@aashto.org

CV0059286

American Association of State Highway and Transportation Officials

C O

N

TR

A C

TO

R

Lauren Stempek

(517) 243-4008

DTMB

Multiple Multiple stempekl@michigan.gov

CONTRACT SUMMARY

DESCRIPTION: American Association of State Highway and Transportation Officials (AASHTO) provides AASHTOWare software products to the State to manage and process Michigan’s multi-billion-dollar road, bridge, airport, and railroad construction project lifecycles - beginning with setting up the initial project design and specifications, through the bid letting & contract award process, and ultimately through execution of the construction activities at the job site.

INITIAL EFFECTIVE DATE INITIAL EXPIRATION DATE EXPIRATION DATE BEFORE

CHANGE(S) NOTED BELOW

7/1/2025 6/30/2030 5 - 1 Year

PAYMENT TERMS DELIVERY TIMEFRAME

ALTERNATE PAYMENT OPTIONS EXTENDED PURCHASING

MINIMUM DELIVERY REQUIREMENTS

N/A

P-card Payment Request (PRC) Other Yes No

MISCELLANEOUS INFORMATION

N/A

ESTIMATED CONTRACT VALUE AT TIME OF EXECUTION $10,000,000.00

N/AN/A

C on tra ct

Ad m in is tra to r Pr og ra m M an ag er

ST

A

TE

P.O. Box 30026, Lansing, MI 48909

NOTICE OF CONTRACT NO. 250000000656

INITIAL

AVAILABLE

OPTIONS

6/30/2030

AGENCY NAME PHONE EMAIL

DTMB Jeffrey LaBean 517-243-1743 LabeanJ@michigan.gov

MDOT Kristin Schuster 517-335-4421 SCHUSTERK@michigan.g ov

MDOT Lindsey Renner 517-202-5356 RennerL1@michigan.gov

Program Managers for

Multi-Agency and Statewide Contracts

FOR THE CONTRACTOR:

Company Name

Authorized Agent Signature

Authorized Agent (Print or Type)

Date

FOR THE STATE:

Signature

Name and Title

Agency

Date

CONTRACT NO. 250000000656

Michigan.gov/MiProcurement

SOFTWARE CONTRACT TERMS AND

CONDITIONS

These Terms and Conditions, together with all Schedules (including the Statement(s) of Work), Exhibits and any other applicable attachments or addenda (Collectively this “Contract”) are agreed to between the State of Michigan (the “State”) and the American Association of State Highway and Transportation Officials (“Contractor”), a nonprofit, nonpartisan association incorporated in Washington D.C. This Contract is effective on July 1, 2025 (“Effective Date”), and unless terminated, will expire on June 30, 2030 (the “Term”).

This Contract may be renewed for up to five (5) additional 1-year period(s). 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 a Change Notice.

1. Definitions. For the purposes of this Contract, the following terms have the following meanings:

“Access” means (1) the ability and means to enter a restricted or locked area, room, or physical container containing State Data; or (2) the ability and means to communicate with or otherwise interact with a system, to use system resources to handle information, to gain the information or knowledge of the information the system contains, or to control system components and functions (including physical or technical controls, or having the ability to modify or bypass any or all security controls).

“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person.

For purposes of this definition, the term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect ownership of more than fifty percent (50%) of the voting securities of a Person.

“Allegedly Infringing Materials” has the meaning set forth in Section 18.

“Approved Third-Party Components” means all third-party components, including Open Source Components, that are included in or used in connection with the Software and are specifically identified by Contractor, including without limitation as part of the State’s Security Accreditation Process defined in Schedule E – Data Security Requirements.

“Authorized Users” means all Persons authorized by the State to access and use the Software under this Contract, subject to the maximum number of users specified in the applicable Statement of Work and in any applicable Supplemental Agreement.

“Business Day” means a day other than a Saturday, Sunday or other day on which the State is authorized or required by law to be closed for business.

“Contract Change” has the meaning set forth in Subsection 2.2.

“Change Notice” means a writing executed by the parties to the Contract memorializing a change to the Contract.

“Change Proposal” has the meaning set forth in Subsection 2.2.

“Change Request” has the meaning set forth in Subsection 2.2.

“Confidential Information” has the meaning set forth in Subsection 22.1.

“Configuration” means State-specific changes made to the Software without Source Code or structural data model changes occurring.

“Contract” has the meaning set forth in the preamble.

“Contract Administrator” is the individual appointed by each party to (a) administer the terms of this Contract, and (b) approve any Change Notices under this Contract. Each party’s Contract Administrator will be identified in Schedule A or subsequent Change Notices.

“Contractor” has the meaning set forth in the preamble.

“Contractor’s Bid Response” means the Contractor’s proposal submitted in response to the Solicitation.

“Contractor Hosted” means the Hosted Services and the Operating Environment are provided by Contractor or one or more of its Permitted Subcontractors.

“Contractor Personnel” means all employees of Contractor, or any subcontractors or Permitted Subcontractors involved in the performance of Services hereunder.

“Contractor Project Manager” means the individual appointed by Contractor and identified in Schedule A or subsequent Change Notices to serve as the primary contact, to monitor and coordinate the day-to-day activities of this Contract, and to perform other duties as may be further defined in this Contract, including an applicable Statement of Work.

“Customization” means State-specific changes to the Software's underlying Source Code or structural data model changes and which is not generally available to Contactor’s other customers.

“Deliverables” means the Software, Documentation, any Hardware, and all other documents and other materials that Contractor is required to or otherwise does provide to the State under this Contract and otherwise in connection with any Services, including all items specifically identified as Deliverables in a Statement of Work and all Work Product.

“Deposit Material” refers to material required to be deposited pursuant to Section 28.

“Digital Accessibility Standards” means the accessibility standards provided in the SOM Digital Standards, located at https://www.michigan.gov/standards.

“Disaster Recovery Plan” refers to the set(s) of documents, instructions, and procedures which enable the Contractor to respond to accidents, disasters, emergencies, or threats without any stoppage or hindrance in its key operations and to the actions the Contractor takes to meet the Recovery Point and Recovery Time Objectives.

“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 Deliverable.

“DTMB” means the Michigan Department of Technology, Management and Budget.

“Effective Date” has the meaning set forth in the preamble.

“Fees” means the fees set forth in the Pricing Schedule attached as Schedule B.

https://www.michigan.gov/som/footer/policies/som-applications-and-site-standards

“Financial Audit Period” has the meaning set forth in Subsection 23.1.

“Hardware” means all computer hardware or other equipment provided by Contractor under this Contract, if any, including but not limited to any related accessories.

“Harmful Code” means any software, hardware or other technologies, devices or means, the purpose or effect of which is to: (a) permit unauthorized access to, or to destroy, disrupt, disable, encrypt, modify, copy, or otherwise harm or impede in any manner, any (i) computer, software, firmware, data, hardware, system or network, or (ii) any application or function of any of the foregoing or the integrity, use or operation of any data Processed thereby; or (b) prevent the State or any Authorized User from accessing or using the Services as intended by this Contract, and includes any virus, bug, trojan horse, worm, backdoor or other malicious computer code and any time bomb or drop dead device.

“Hosted Services” means the hosting, management and operation of the: Operating Environment, Software, other services (including support and subcontracted services), and related resources for access and use by the State and its Authorized Users, including any services and facilities related to disaster recovery obligations.

“Implementation Plan” means the schedule included in a Statement of Work setting forth the sequence of events for the performance of Services under a Statement of Work, including the Milestones and Milestone Dates.

“Integration Testing” has the meaning set forth in Section 9.

“Intellectual Property Rights” means all or any of the following: (a) patents, patent disclosures, and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the associated goodwill; (c) copyrights and copyrightable works (including computer programs), mask works and rights in data and databases; (d) trade secrets, know-how and other confidential information; and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law in any jurisdiction throughout the world.

“Key Personnel” means any Contractor Personnel identified as key personnel in the Contract.

“Loss or Losses” means all losses, including but not limited to, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Maintenance Release” means any update, upgrade, release or other adaptation or modification of the Software, including any updated Documentation, that Contractor may generally provide to its licensees from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Software.

“Milestone” means an event or task described in the Implementation Plan under a Statement of Work that must be completed by the corresponding Milestone Date.

“Milestone Date” means the date by which a particular Milestone must be completed as set forth in the Implementation Plan under a Statement of Work.

“New Version” means any new version of the Software, including any updated Documentation, that the Contractor may from time to time introduce and market generally as a distinct licensed product, as may be indicated by Contractor's designation of a new version number.

“Nonconformity” or “Nonconformities” means any failure or failures of a Deliverable, to conform to the requirements of this Contract.

“Open Source Components” means any software component that is subject to any open source copyright license agreement, including any GNU General Public License or GNU Library or Lesser Public License, or other obligation, restriction or license agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled.

“Operating Environment” means, collectively, the platform, environment and conditions on, in or under which the Software is intended to be installed and operate, as set forth in a Statement of Work, including such structural, functional and other features, conditions and components as hardware, operating software, system architecture, configuration, computing hardware, ancillary equipment, networking, software, firmware, databases, data, and electronic systems (including database management systems).

“PAT” means a document or product accessibility template, including any Information Technology Industry Council Voluntary Product Accessibility Template or VPAT®, that specifies how information and software products, such as websites, applications, software and associated content, conform to the Digital Accessibility Standards.

“Permitted Subcontractor” means any third party hired by Contractor to perform Services for the State under this Contract or that will have Access to or have the ability to control access to State Data or both.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

“Pricing Schedule” means the schedule attached as Schedule B.

“Process” means to perform any operation or set of operations on any data, information, material, work, expression or other content, including to (a) collect, receive, input, upload, download, record, reproduce, store, organize, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other improvements or derivative works, (b) process, retrieve, output, consult, use, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or (c) block, erase or destroy.

“Processing” and “Processed” have correlative meanings.

“Representatives” means a party's employees, officers, directors, partners, shareholders, agents, attorneys, successors and permitted assigns.

“Services” means any of the services, including but not limited to, Hosted Services, installation, configuration, implementation, and/or Support Services, that the Contractor is required to or otherwise does provide under this Contract.

“Site” means any physical location(s) designated by the State in, or in accordance with, this Contract or a Statement of Work for delivery and installation of the Deliverable, if applicable.

“Software” means Contractor’s software as set forth in a Statement of Work, and any Approved Third-Party Components, Maintenance Releases or New Versions provided to the State and any Customizations or Configurations made by or for the State pursuant to this Contract, and all copies of the foregoing permitted under this Contract.

“Solicitation” means the State’s request for proposal, invitation to negotiate, or other type of solicitation, designed to solicit responses for Services under this Contract.

“Solution” means Deliverables and Services singularly or in any combination thereof, as applicable, set forth in a Statement of Work.

“Source Code” means the human readable source code of the Software to which it relates, in the programming language in which the Software was written, together with all related flow charts and technical documentation, including a description of the procedure for generating object code, all of a level sufficient to enable a programmer reasonably fluent in such programming language to understand, build, operate, support, maintain and develop modifications, upgrades, updates, adaptations, enhancements, new versions and other derivative works and improvements of, and to develop computer programs compatible with, the Software.

“Specifications” means, for the Software, the specifications collectively set forth in the Business Requirements Specification, Technical Specification, Documentation, Solicitation or Contractor’s Bid Response, if any, for such Software, or elsewhere in a Statement of Work.

“State” means the State of Michigan.

“State Data” has the meaning set forth in Section 21.

“State Hosted” means the Operating Environment is not provided by Contractor or one or more of its Permitted Subcontractors.

“State Materials” means all materials and information, including but not limited to documents, data, know-how, ideas, methodologies, specifications, software, hardware, content and technology, in any form or media, directly or indirectly provided or made available to Contractor by or on behalf of the State in connection with this Contract.

“State Program Managers” are the individuals appointed by the State, or their designees, to (a) monitor and coordinate the day-to-day activities of this Contract; (b) co-sign off on Acceptance of the Deliverables; and (c) perform other duties as may be specified in a Statement of Work. Program Managers will be identified in Schedule A or subsequent Change Notices.

“State Systems” means the information technology infrastructure, including the computers, software, databases, electronic systems (including database management systems) and networks, of the State or any of its designees.

“Statement of Work” means any statement of work entered into by the parties and incorporated into this Contract. The initial Statement of Work is attached as Schedule A.

“Stop Work Order” has the meaning set forth in Section 15.

“Support Services” means the maintenance and support services Contractor is required to or otherwise does provide to the State under the Contract.

“Supplemental Agreement” means any AASHTO License Software Supplemental Agreement(s) that may be applicable to any particular Software being provided.

“System” has the meaning set forth in Schedule I.

“System Acceptance” has the meaning set forth in Schedule I.

“System Integration Testing” has the meaning set forth in Schedule I.

“Technical Specification” means, with respect to any Software, the document setting forth the technical specifications for such Software and included in a Statement of Work.

“Term” has the meaning set forth in the preamble.

“Testing Period” has the meaning set forth in Section 9.

“Transition Period” has the meaning set forth in Section 16.

“Transition Responsibilities” has the meaning set forth in Section 16.

“User Data” means all data, information and other content of any type and in any format, medium or form, whether audio, visual, digital, screen, GUI or other, that is input, uploaded to, placed into or collected, stored, Processed, generated or output by any device, system or network by or on behalf of the State, including any and all works, inventions, data, analyses and other information and materials resulting from any use of the Software by or on behalf of the State under this Contract, including information that identifies the State devices or equipment and any location information even if not input by a user except that User Data does not include the Software or data, information or content, including any GUI, audio, visual or digital or other display or output, that is generated automatically upon executing the Software without additional user input without the inclusion of user derived information or additional user input, with the exception of any identifying information.

“Warranty Period” is defined under the terms of the Master Agreement.

“Work Product” means everything made or created by Contractor, or any subcontractor thereof, specifically and solely for the State and which is not generally available to Contactor’s other customers that Contractor is required to, or otherwise does, provide to the State under this Contract including but not limited to Customizations, application programming interfaces, computer scripts, macros, user interfaces, reports, project management documents, forms, templates, and other State-specific documents and related materials together with all ideas, concepts, processes, and methodologies developed in connection with this Contract whether or not embodied in this Contract. For any Deliverables to be considered Work Product as defined herein, they must be agreed upon in writing and set forth in a Statement of Work executed by the parties to this Contract.

2. Duties of Contractor. Contractor will provide the Solution pursuant to any applicable Supplemental Agreement and Statement(s) of Work entered into under this Contract. Contractor will provide the Solution in a timely, professional manner and in accordance with the terms, conditions, and Specifications set forth in this Contract, the Statement(s) of Work, and any applicable Supplemental Agreement(s).

2.1 Statement of Work Requirements. No Statement of Work will be effective unless signed by each party’s Contract Administrator. The term of each Statement of Work will commence on the parties' full execution of a Statement of Work and terminate when the parties have fully performed their obligations. The terms and conditions of this Contract will apply at all times to any Statements of Work entered into by the parties and incorporated into this Contract. The State will have the right to terminate such Statement of Work as set forth in Section 16.

Contractor acknowledges that time is of the essence with respect to Contractor’s obligations under each Statement of Work and agrees that prompt and timely performance of all such obligations in accordance with this Contract and the Statements of Work (including the Implementation Plan and all Milestone Dates) is strictly required.

2.2 Change Control Process. The State may at any time request in writing (each, a “Change Request”) changes to the Contract, including without limitation changes to the Solution or adding a new Statement of Work (each, a “Contract Change”). Upon the State’s submission of a Change Request, the parties will evaluate and implement all Changes in accordance with this Section.

(a) As soon as reasonably practicable, and in any case within 20 Business Days following receipt of a Change Request, Contractor will provide the State with a written proposal for implementing the requested Change (“Change Proposal”), setting forth:

(i) a written description of the proposed Changes to any part of the Solution;

(ii) an amended Implementation Plan reflecting: (A) the schedule for commencing and completing any addition or modification to the Solution; and (B) the effect of such Changes, if any, on completing any other Services under a Statement of Work;

(iii) any additional State Resources Contractor deems necessary to carry out such Changes; and

(iv) any increase or decrease in Fees resulting from the proposed Changes, which increase, or decrease will reflect only the increase or decrease in time and expenses Contractor requires to carry out the Change.

(b) Within 30 Business Days following the State’s receipt of a Change Proposal, the State will by written notice to Contractor, approve, reject, or propose modifications to such Change Proposal. If the State proposes modifications, Contractor must modify and re-deliver the Change Proposal reflecting such modifications, or notify the State of any disagreement, in which event the parties will negotiate in good faith to resolve their disagreement. Upon the State’s approval of the Change Proposal or the parties’ agreement on all proposed modifications each parties’ Contractor Administrator will sign a Change Notice.,

(c) However, if the parties fail to enter into a Change Notice within 15 Business Days following the State’s response to a Change Proposal, the State may, in its discretion:

(i) require Contractor to perform or provide the Solution under the existing Statement of Work without the Change;

(ii) require Contractor to continue to negotiate a Change Notice;

(iii) initiate a Dispute Resolution Procedure; or

(iv) notwithstanding any provision to the contrary in a Statement of Work, terminate this Contract under Subsection 16.1.

(d) No Change will be effective until the parties have executed a Change Notice.

Notwithstanding the foregoing, no Change Notice executed after the Effective Date will construed to amend or modify this Contract in any way, unless it specifically states its intent to do so and cites the section or sections amended. Except as the State may request in its Change Request or otherwise in writing, Contractor must continue to perform its obligations in accordance with a Statement of Work pending negotiation and execution of a Change Notice. Contractor will use its best efforts to limit any delays or Fee increases from any Change to those necessary to perform the Change in accordance with the applicable Change Notice. Each party is responsible for its own costs and expenses of preparing, evaluating, negotiating, and otherwise processing any Change Request, Change Proposal, and Change Notice.

(e)The performance of any functions, activities, tasks, obligations, roles and responsibilities comprising the Solution as described in this Contract are considered part of the Solution and, thus, will not be considered a Change. This includes the delivery of all Deliverables in accordance with their respective Specifications, and the diagnosis and correction of Nonconformities discovered in Deliverables prior to their Acceptance by the State or, subsequent to their Acceptance by the State, as necessary for Contractor to fulfill its associated warranty requirements and its Support Services under this Contract.

(f) Contractor may, on its own initiative and at its own expense, prepare and submit its own Change Request to the State. However, the State will be under no obligation to approve or otherwise respond to a Change Request initiated by Contractor.

2.3 Contractor Personnel.

(a) Contractor is solely responsible for all Contractor Personnel and for the payment of their compensation, including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes, unemployment insurance, workers’ compensation insurance payments and disability benefits.

(b) Prior to any Contractor Personnel performing any Services, Contractor will:

(i) ensure that such Contractor Personnel have the legal right to work in the United States; and

(previous ii) RESERVED

(ii) The State, in its sole discretion, may also perform 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.

(c) While on State property, or for any Service or activity that has the ability to impact State Data, Contractor and all Contractor Personnel will comply with all rules, regulations, and policies of the State that are communicated to Contractor in writing, including security procedures concerning systems and data and remote access, building security procedures, including the restriction of access by the State to certain areas of its premises or systems, and general health and safety practices and procedures.

(d) The State reserves the right to request the removal of any individual Contractor Personnel performing professional services under this Contract who is found, in the judgment of the State, to be unacceptable, provided that, the State’s request must be written with reasonable detail outlining the reasons for the removal request. Replacement personnel for the removed person must be fully qualified for the position. If the State exercises this right, and Contractor cannot immediately replace the removed personnel, the State agrees to negotiate an equitable adjustment in schedule or other terms that may be affected by the State’s required removal.

2.4 Contractor Project Manager. Throughout the Term of this Contract, Contractor must maintain a Contractor employee to serve as Contractor Project Manager, who will be considered Key Personnel of Contractor.

(a) Contractor Project Manager must:

(i) have the requisite authority, and necessary skill, experience, and qualifications, to perform in such capacity;

(ii) be responsible for overall management and supervision of Contractor’s performance under this Contract; and

(iii) be the State’s primary point of contact for communications with respect to this Contract, including with respect to giving and receiving all day-to-day approvals and consents.

(b) RESERVED.

(c) Contractor will maintain the same Contractor Project Manager throughout the Term of this Contract, unless:

(i) the State requests in writing the removal of Contractor Project Manager; or

(ii) the State consents in writing to any removal requested by Contractor in writing; or

(iii) the Contractor Project Manager ceases to be employed by Contractor, whether by resignation, involuntary termination or otherwise.

(d) Upon the occurrence of any event set forth in Subsections 2.4(c)(i-iii) above, Contractor will promptly replace its Contractor Project Manager. Such replacement will be subject to the State's prior written approval.

2.5 RESERVED - Contractor’s Key Personnel.

2.6 Subcontractors. Contractor must provide 30 days prior written notice before utilizing any Permitted Subcontractor to provide Services to the State under this Contract. Engagement of any subcontractor or Permitted Subcontractor by Contractor does not relieve Contractor of its representations, warranties or obligations under this Contract. Without limiting the foregoing, Contractor will:

(a) be responsible and liable for the acts and omissions of each such subcontractor (including such Permitted Subcontractor and Permitted Subcontractor's employees who, to the extent providing the Solution, will be deemed Contractor Personnel) to the same extent as if such acts or omissions were by Contractor or its employees;

(b) be responsible for all fees and expenses payable to, by or on behalf of each subcontractor and Permitted Subcontractor in connection with this Contract, including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes, unemployment insurance, workers' compensation insurance payments and disability benefits; and

(c) notify the State of the location of the Permitted Subcontractor and indicate if it is located within the United States.

3. 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 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:

Lauren Stempek 320 South Walnut Street PO Box 30026 Lansing, MI 48909 StempekL@michigan.gov 517-243-4008

Angelique Williams 555 12th Street N.W., Suite 1000 Washington DC 20004 angelw@aashto.org 202-624-5808

4. Insurance. - RESERVED

5. Terms of Use of the Software.

5.1 License.

Each year, AASHTO provides a catalog (AASHTOWare Catalog) to describe the AASHTOWare products and services to be offered in the next fiscal year, and to establish the license and participation fees.

The AASHTOWare Catalog can be found at the following web site: www.aashtoware.org

AASHTO will provide:

• an annual commitment package, so that the State can indicate which software products or projects it wishes to license or participate in

• A Master License Agreement; and

• A Supplemental License Agreement

The AASHTO Master License Software Agreement and any applicable AASHTO License Software Supplemental Agreement(s) are hereby incorporated by reference into this Contract.

The State may elect to execute a license for one or more existing software products owned by the Association, collectively known as "AASHTOWare®.

Under this Contract, AASHTOWare® license fees payable by the State to the Association shall be revised annually to reflect the current licenses fee(s) applicable to the State's selected software product(s) and licensing option(s).

The State will identify the modules to license at the beginning of each new AASHTO year, on the “AASHTOWare Products and Services Request Form”.

The State will receive license keys and/or site license numbers for Software Requested.

5.2 Restrictions. – RESERVED

mailto:StempekL@michigan.gov mailto:angelw@aashto.org

5.3 Fees. The State will pay Contractor the corresponding Fees as indicated in a Statement of Work or Schedule B - Pricing 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.

5.4 Certification. 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 this Section. Such written certification may occur no more than once in any 24 month period during the Term of the Contract. The State will 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.

5.5 State License Grant to Contractor. The State hereby grants to Contractor a limited, non-exclusive, non- transferable license (i) to use the State's (or individual agency’s, department’s or division’s) name, trademarks, service marks or logos, solely in accordance with the State’s specifications, and (ii) to display, reproduce, distribute and transmit in digital form the State’s (or individual agency’s, department’s or division’s) name, trademarks, service marks or logos in connection with promotion of the Services as communicated to Contractor by the State. Use of the State’s (or individual agency’s, department’s or division’s) name, trademarks, service marks or logos will be specified in the applicable Statement of Work. Contractor is provided a limited license to State Materials for the sole and exclusive purpose of providing the Services.

6. Third-Party Components. At least 30 days prior to adding new third-party components, Contractor will provide the State with notification information identifying and describing the addition. Throughout the Term, on an annual basis, Contractor will provide updated information identifying and describing any third-party components included in the Software. Contractor is responsible for ensuring that all Approved Third-Party Components are properly licensed for the State’s use.

7. Intellectual Property Rights

7.1 Ownership Rights in Software

(a) For purposes of this Section 7 only, the term “Software” does not include Customizations.

(b) Subject to the rights and licenses granted by Contractor in this Contract and the provisions of Subsection 7.1(c):

(i) Contractor reserves and retains its entire right, title and interest in and to all Intellectual Property Rights arising out of or relating to the Software; and

(ii) none of the State or Authorized Users acquire any ownership of Intellectual Property Rights in or to the Software or Documentation as a result of this Contract.

(c) As between the State, on the one hand, and Contractor, on the other hand, the State has, reserves and retains, sole and exclusive ownership of all right, title and interest in and to State Materials, User Data, including all Intellectual Property Rights arising therefrom or relating thereto.

7.2 Except as otherwise set forth in a work plan, the State is and will be the sole and exclusive owner of all right, title, and interest in and to all Work Product developed exclusively for the State under this Contract, including all Intellectual Property Rights. In furtherance of the foregoing:

(a) Contractor will create all Work Product as work made for hire as defined in Section 101 of the Copyright Act of 1976; and

(b) to the extent any Work Product, or Intellectual Property Rights do not qualify as, or otherwise fails to be, work made for hire, Contractor hereby:

(i) assigns, transfers, and otherwise conveys to the State, irrevocably and in perpetuity, throughout the universe, all right, title, and interest in and to such Work Product, including all Intellectual Property Rights; and

(ii) irrevocably waives any and all claims Contractor may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Work Product.

7.3 Pre-existing Materials for Customizations or other Work Product.

Neither Contractor nor any of its Subcontractors shall incorporate any preexisting materials (including standard software) into any Work Product or use any pre-existing materials to produce Work Product if such pre-existing materials will be needed by the State in order to use the Work Product unless (i) such pre-existing materials and their owners are identified to the State in writing and (ii) such pre-existing materials are either readily commercially available products for which Contractor or its Subcontractor, as the case may be, has obtained a license (in form and substance approved by the State) in the name of the State, or are materials that Contractor or its Subcontractor, as the case may be, has the right to license to the State and has licensed to the State on terms and conditions approved by the State prior to using such pre-existing materials to perform the Services.

8. Software Implementation.

8.1 Implementation. Contractor will as applicable; deliver, install, configure, integrate, and otherwise provide and make fully operational the Software as provided in the AASHTOWare Catalog or a separate Statement of Work.

8.2 Site Preparation - RESERVED.

9. Software Acceptance Testing.

9.1 Acceptance Testing.

Acceptance criteria for a Deliverable, if any, will be described in the applicable Statement of Work.

10. Non-Software Acceptance.

10.1 All non-Software Deliverables 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 the Statement of Work.

11. Assignment. Except as provided herein with respect to the engagement of subcontractors, Contractor may not assign this Contract or any of its rights or delegate any of its duties or obligations hereunder, voluntarily, or involuntarily, whether by merger (regardless of whether it is the surviving or disappearing entity), conversion, consolidation, dissolution, or operation of law to any other party without the prior written approval of the State. Upon notice to Contractor, the State, in its sole discretion, may assign in whole or in part, its rights or responsibilities under this Contract to any other governmental entity if such assignment is made reasonably necessary by operation of controlling law or regulation. If the State determines that a novation of the Contract to a third party is necessary, Contractor will agree to the novation and provide all necessary documentation and signatures.

12. 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) RESERVED;

(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) RESERVED;

(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.

13. Ordering, Invoices and Payment.

13.1 Authorizing Document. The document for the Contract will be a delivery order. No work should start until the delivery order is received by the Contractor.

13.2 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 the Solution provided as specified in Statement(s) of Work. Invoices must include an itemized statement of all charges.

13.3 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 Deliverables. 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.

13.4 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.

http://www.michigan.gov/SIGMAVSS

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

13.6 Taxes. The State is exempt from State sales tax for direct purchases and may be exempt from federal excise tax, if the Solution purchased under this Contract is for the State’s exclusive use.

13.7 Pricing/Fee Changes. Throughout the Term, all Pricing set forth in this Contract will be as set forth in Schedule B – Pricing Schedule.

14. Liquidated Damages.

14.1The 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.

14.2 The parties acknowledge and agree that Contractor could incur liquidated damages for more than one event.

14.3 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 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.

14.4 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.

15. 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 activities that have been suspended, Contractor’s lost profits, or any additional compensation during a stop work period.

16. Termination, Expiration, Transition. The State may terminate this Contract, the Support Services, or any Statement of Work, in accordance with the following:

16.1 Termination for Cause. In addition to any right of termination set forth elsewhere in this Contract:

(a) The State may terminate this Contract for cause, in whole or in part, if Contractor, as determined by the State:

i) endangers the value, integrity, or security of State Systems, State Data, or the State’s facilities or personnel;

(ii) becomes insolvent, petitions for bankruptcy court proceedings, or has an involuntary bankruptcy proceeding filed against it by any creditor; or

(iii) breaches any of its material duties or obligations under this Contract. Any reference to specific breaches being material breaches within this Contract will not be construed to mean that other breaches are not material.

(b) If the State terminates this Contract under this Subsection 16.1, the State will issue a termination notice specifying whether Contractor must:

(i) cease performance immediately. Contractor must submit all invoices for Services accepted by the State within 30 days of the date of termination. Failure to submit an invoice within that timeframe will constitute a waiver by Contractor for any amounts due to Contractor for Services accepted by the State under this Contract, or

(ii) continue to perform for a specified period. If it is later determined that Contractor was not in breach of this 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 Subsection 16.2.

(c) The State will only pay for amounts due to Contractor for Services accepted by the State on or before the date of termination. License Fees are non-refundable.

16.2 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 immediately. Contractor must submit all invoices for Services accepted by the State within 30 days of the date of termination. Failure to submit an invoice within that timeframe will constitute a waiver by Contractor for any amounts due to Contractor for Services accepted by the State under this Contract, or

(b) continue to perform in accordance with Subsection 16.3. 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 to the extent the funds are available.

16.3 Transition Responsibilities.

(a) Upon termination or expiration of this Contract for any reason, Contractor must, for a period of time specified by the State (not to exceed 90 calendar days; the “Transition Period”), 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 to facilitate the orderly transfer of the Services to the State or its designees. Such transition assistance may include but is not limited to:

(i) continuing to perform the Services at the established Contract rates;

(ii) taking all reasonable and necessary measures to transition performance of the work, including all applicable Services to the State or the State’s designee;

(iii) taking all necessary and appropriate steps, or such other action as the State may direct, to preserve, maintain, protect, and comply with Section 22, including without limitation, the return or destruction of State Data at the conclusion of the Transition Period; and

(iv) preparing an accurate accounting from which the State and Contractor may reconcile all outstanding accounts (collectively, the “Transition Responsibilities”).

The Term of this Contract is automatically extended through the end of the Transition Period.

17. Indemnification

17.1 General Indemnification. Contractor must defend, indemnify and hold the State, its departments, divisions, agencies, offices, commissions, officers, 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), as set forth in this Contract, the Master Agreement, or any applicable Supplemental Agreement.

17.2 Indemnification Procedure. The State will notify Contractor in writing if indemnification is sought; however, failure to do so will not relieve Contractor, except to the extent that Contractor is materially prejudiced. The State is entitled to:

(a) regular updates on proceeding status;

(b) participate in the defense of the proceeding;

(c) employ its own counsel at its own cost; and to

(d) 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 must be coordinated with the Department of Attorney General.