Passio+-+Contract.pdf

TECHNOLOGY CONTRACT: Paratransit and/or Fixed-Transit Scheduling and Dispatch Software

1. PARTIES

The parties to this contract (Master Contract) are the state of North Dakota, acting through its Office of Management and Budget (STATE), and Passio Technologies a Limited Liability Corporation in the State of Georgia having its principal place of business at 6100 Lake Forrest Dr. Suite 410, Atlanta, GA 30328 (CONTRACTOR).

2. COOPERATIVE PURCHASE

The contract resulting from this solicitation is a cooperative purchasing contract established pursuant to North Dakota Century Code (N.D.C.C.) sections 54-44.4-13. This Master Contract is made available to state entities, institutions under the jurisdiction of the State Board of Higher Education, other government entities (including counties, cities, townships, public primary and secondary educational entities, governmental boards and commissions), nonprofit entities established on behalf of public entities, tribal agencies, transportation providers under N.D.C.C chapter 39-04.2, and the International Peace Garden. Participation by other governmental entities is not mandated or guaranteed; therefore, the estimated volume of this contract is not known.

3. DEFINITIONS

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

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

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

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

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

f) PARTICIPATING ENTITY – means the eligible entity pursuant to Section 2 of this Master Contract that may participate in this Master Contract by executing a separate Work Order Request (WOR) specific to the work needed by PARTICIPATING ENTITY.

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

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

i) Software as a Service (SaaS). The capability provided to the consumer is to use the provider’s applications running on a provider’s infrastructure. The applications are accessible from various client devices through interfaces such as a web browser (e.g., web-based email), or a program interface. The consumer does not manage or control the underlying infrastructure including network, servers, operating systems, storage, or even individual application capabilities, with the http://www.legis.nd.gov/cencode/t54c44-4.pdf?20130131153805 http://www.legis.nd.gov/cencode/t39c04-2.pdf?20130131161514 possible exception of limited user-specific application configuration settings. This definition is based on and consistent with National Institute of Standards and Technology (NIST) Special Publication 800-145.

j) STATE – means the State of North Dakota Office of Management and Budget with authority to execute this Master Contract. When the Master Contract is applied to control a Work Order Request (WOR) for PARTICIPATING ENTITY, the term STATE shall include PARTICIPATING

ENTITY.

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

l) Work Order Request (WOR) - means the description of the specific work mutually agreed to between a PARTICIPATING ENTITY and CONTRACTOR. The CONTRACTOR shall provide the services, including any deliverables, set forth in such WOR. The WOR is subject to and controlled by the terms and conditions of this Master Contract.

4. SCOPE OF WORK

The Scope of Work defines the required work to complete a project. It also includes project milestones, deliverables, reports, etc. CONTRACTOR, in exchange for the compensation paid by PARTICIPATING ENTITY under this Contract and an executed Work Order Request (WOR), shall provide Fixed Transit scheduling and dispatch software.

Attachment 6 WOR will be used to fully detail the specific work required by PARTICIPATING

ENTITY.

When a PARTICIPATING ENTITY requires services from this Master Contract, PARTICIPATING ENTITY will prepare a written WOR describing the required services.

Each WOR will specify a proposal due date for CONTRACTOR to respond to the PARTICIPATING ENTITY’s request.

CONTRACTOR must respond to PARTICIPATING ENTITY that issued the WOR, either affirming or denying CONTRACTOR’s ability to provide the services and personnel in the required project time frame and the cost priced at or below the rates proposed in the current Master Contract. During this response period, if necessary, CONTRACTOR may seek clarifications of the work involved. The final WOR must be signed by CONTRACTOR and PARTICIPATING ENTITY.

5. COMPENSATION-PAYMENTS

a. Contractual Amount

PARTICIPATING ENTITY shall pay for the accepted services provided by CONTRACTOR under this Master Contract as agreed upon in the WOR (Contractual Amount). The Contractual Amount shall be paid according to the Exhibit C, Offeror’s Best and Final Offer (BAFO) Cost Proposal.

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

b. Retainage

All deliverable payments shall be subject to 10% retainage. Retained amounts due to CONTRACTOR shall be paid upon Final Acceptance.

c. Invoicing

The final cost set forth on each invoice shall be equivalent to the cost for each deliverable or service as specified in the WOR. CONTRACTOR shall not submit an invoice for any deliverable or service specified in the WOR that PARTICIPATING ENTITY has not fully accepted.

d. Payment

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

PARTICIPATING ENTITY shall make payment under this Master Contract and executed WOR within forty-five (45) calendar days after receipt of an approved invoice.

Payment of an invoice by PARTICIPATING ENTITY will not prejudice PARTICIPATING ENTITY’s right to object to or question that or any other invoice or matter in relation thereto.

CONTRACTOR's invoice will be subject to reduction for amounts included in any invoice or payment made which are determined by PARTICIPATING ENTITY not to constitute allowable costs, on the basis of audits conducted in accordance with the terms of this Master Contract. At PARTICIPATING ENTITY’s sole discretion, all payments shall be subject to reduction for amounts equal to prior overpayments to CONTRACTOR.

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

e. Travel

CONTRACTOR acknowledges travel expenses are covered by the Contractual Amount and shall not invoice PARTICIPATING ENTITY for travel expenses.

f. Prepayment

STATE will not make any advance payments before performance or delivery by CONTRACTOR under this Master Contract, including any executed WOR.

g. Payment of Taxes by State

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

CONTRACTOR.

h. Taxpayer ID

CONTRACTOR’s federal employer ID number is: 27-3307668

i. Purchasing Card

PARTICIPATING ENTITY may make payment using a government credit card. CONTRACTOR will accept a government credit card without passing the processing fees for the government credit card back to PARTICIPATING ENTITY.

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

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

a. On site means any location in North Dakota.

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

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

CONTRACTOR.

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

7. TERM OF CONTRACT

This Master Contract term (Term or Initial Term) begins on Effective Date, and ends on July 31,

a. No Automatic Renewal

Neither this Master Contract nor any WOR will automatically renew.

b. Renewal Option

STATE may renew this Master Contract upon satisfactory completion of the Initial Term. STATE reserves the right to execute up to four (4) options to renew this Master Contract under the same terms and conditions for a period of twelve (12) months each (Renewal Term).

c. Extension Option

STATE reserves the right to extend this Master Contract for an additional period, not to exceed twelve (12) months, beyond the current termination date of this Master Contract.

d. Renegotiation Option

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

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

8. TERMINATION

a. Termination by Mutual Agreement

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

b. Termination for Lack of Funding or Authority

STATE by written notice to CONTRACTOR, may terminate the whole or any part of this Master Contract or an executed WOR, under any of the following conditions:

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

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

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

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

c. Termination for Cause.

Either Party may terminate this Master Contract effective upon delivery of written notice to the other, setting out the grounds for termination and providing a thirty (30) calendar day cure period, or any later date stated in the notice:

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

2) If either Party fails to perform any of the other provisions of this Master Contract or an executed WOR, or so fails to pursue the work as to endanger performance of this Master Contract or an executed WOR in accordance with its terms.

3) STATE agrees to provide a minimum cure period of 30 (thirty) days for CONTRACTOR to address and resolve notification

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

9. FORCE MAJEURE

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

10. INJUNCTIVE RELIEF

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

11. RIGHT OF SETOFF DAMAGES

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

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

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

13. RIGHT TO REMEDIES AND CUMULATION OF RIGHTS

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

14. NON-WAIVER

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

15. INDEMNIFICATION

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

16. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION

a. CONTRACTOR, at its own expense, shall defend and indemnify STATE against claims that products furnished under this Master Contract infringe a United States patent or copyright or misappropriate trade secrets protected under United States law.

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

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

17. REPRESENTATIONS AND WARRANTIES

CONTRACTOR represents and warrants to STATE that neither CONTRACTOR, in connection with performing the services in performance of this Contract, nor the completed product delivered by CONTRACTOR, will infringe any patent, copyright, trademark, trade secret or other proprietary right of any person. CONTRACTOR further represents and warrants to STATE that it will not use any trade secrets or confidential or proprietary information owned by any third party in performing the services related to this Master Contract or in delivery of the completed product unless CONTRACTOR has the authority to license, use or provide those trade secrets or confidential or proprietary information to STATE. CONTRACTOR further represents and warrants to STATE that neither CONTRACTOR nor any other company or individual performing services pursuant to this Master Contract is under any obligation to assign or give any work done under this Contract to any third party.

a. Mutual Representations. Each party represents that it has the legal power and authority to enter into this Agreement.

b. Services Warranties. CONTRACTOR represents and warrants that it will provide the Professional Services in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Hosted Services will conform substantially in accordance with the Documentation under normal use and circumstances. STATE’s sole remedy for breach of a warranty in this Section shall be to have CONTRACTOR use commercially reasonable efforts to promptly correct, replace or provide a work around for such breach, at no charge to STATE.

c. STATE Warranties. STATE represents that (a) STATE will use, and will ensure that all users use, each Service in full compliance with this Agreement, CONTRACTOR’s end-user terms of use and all applicable laws and regulations; (b) STATE owns or has a license to use and has obtained all consents and approvals necessary for the provision and use of all of the STATE Data that is placed on, transmitted via or recorded by any Service; (c) the provision and use of STATE Data as contemplated by this Agreement and any Service do not and shall not violate any STATE’s privacy policy, terms- of-use or other agreement to which STATE is a party or any law or regulation to which STATE is subject to; and (d) no STATE Data will include social security numbers or other government-issued identification numbers, financial account numbers, credit card or debit card numbers, credit report information or other personal financial information, health or medical information or other information that is subject to international, federal, state, or local laws or ordinances now or hereafter enacted regarding data protection or privacy, including, but not limited to, the Health Insurance Portability and Accountability Act, the Health Information Technology for Economic and Clinical Health Act, the Fair Credit Reporting Act, the Children’s Online Privacy Protection Act and the Gramm-Leach-Bliley Act.

d. Disclaimer.

i. OTHER THAN AS EXPRESSLY SET FORTH IN THIS SECTION 18, CONTRACTOR

DISCLAIMS ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO STATE

REGARDING THIS AGREEMENT AND THE SERVICES, WHETHER ORAL OR WRITTEN,

EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY

IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED

WARRANTY AGAINST INFRINGEMENT, THE IMPLIED WARRANTY OR CONDITION OF

FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF

DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY

CTS SOFTWARE. NO WARRANTY IS MADE THAT USE OF THE SERVICES WILL BE

ERROR FREE OR UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE

SERVICES WILL BE CORRECTED, OR THAT THE SERVICES FUNCTIONALITY WILL

MEET CUSTOMER’S REQUIREMENTS. CTS SOFTWARE DISCLAIMS ALL LIABILITY AND

INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY

THIRD-PARTY HOSTING CTS SOFTWARE.

ii. STATE acknowledges and agrees that (i) it is solely responsible for providing and ensuring the proper training of its drivers, owners or operators in the operation of the motor vehicle or motor vehicles (i.e. any automotive machinery utilized for the transport of persons or goods),

(ii) STATE shall include this paragraph, or the substance thereof, in any agreements between Customer and any third party involving the Hosted Services or other CONTRACTOR property.

18. INSURANCE

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

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

b. Automobile liability, including Owned (if any), Hired, and Non-Owned automobiles, with minimum liability limits of $500,000 per person and $2,000,000 per occurrence

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

d. Employer’s liability or “stop gap” insurance of not less than $2,000,000 as an endorsement on the workers compensation or commercial general liability insurance

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

a. Any deductible or self-insured retention amount or other similar obligation under the policies shall be the sole responsibility of the CONTRACTOR. The amount of any deductible or self-retention is subject to approval by STATE.

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

STATE.

c. The duty to defend, indemnify, and hold harmless the State under this Master Contract shall not be limited by the insurance required in this Master Contract.

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

CONTRACTOR.

e. A Waiver of Subrogation” waiving any right to recovery the insurance company may have against the State.

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

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

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

19. CYBER LIABILITY AND SECURITY INSURANCE

In the event CONTRACTOR will host data, or provide for the hosting of data through a third-party entity, CONTRACTOR shall secure and maintain Cyber Liability and Security Insurance or equivalent insurance product(s), with minimum liability limits of not less than $2,000,000 and first party limits of not less than $1,000,000, that will provide, without cost to the CONTRACTOR or STATE, an immediate response in the event of a data breach, including meeting all notification obligations of CONTRACTOR and STATE and in the event the data breach involves personal information as defined by N.D.C.C. § 51-30-1(4), the insurance policy shall also make available free credit monitoring for any affected individual for a minimum period of one year. CONTRACTOR shall defend, indemnify, save and hold harmless, STATE, its officers, agents and employees from liability of any nature or kind, including costs and expenses, on account of a data breach arising from CONTRACTOR hosting, transmission, or control of data, any and all suits, claims, or damages of any character whatsoever, resulting from injuries or damages sustained by any person or persons or property by virtue of performance of this Master Contract or any executed WOR.

20. WORK PRODUCT

Any customizations or implementation or additional module customizations or training deliverables created specifically for STATE and purchased by STATE under this Master Contract, including any executed WOR, belong to STATE and must be immediately delivered to STATE at STATE's request upon termination of this Master Contract or an executed WOR.

21. TECHNOLOGY STANDARDS

CONTRACTOR shall comply with applicable STATE enterprise architecture technology standards.

These standards can be found on STATE’s website at https://www.ndit.nd.gov/standards. If CONTRACTOR is unable to comply with any applicable standard, CONTRACTOR shall request a waiver from that requirement by submitting a Request for Exemption from Information Technology Standards or Statutory Policies (SFN 51687) form in coordination with STATE’s procurement officer for the STATE’s review and approval or disapproval.

22. PERSONNEL

a. PARTICIPATING ENTITY will designate a Project Manager/Primary Contact to serve as the primary project manager for their WOR with CONTRACTOR. If, during the course of an executed WOR, it becomes necessary for PARTICIPATING ENTITY to change the person assigned as PARTICIPATING ENTITY’s Project Manager/Primary Contact, PARTICIPATING ENTITY will notify CONTRACTOR in writing, pursuant to Notice section of this Master Contract.

b. Unless PARTICIPATING ENTITY otherwise notifies CONTRACTOR, PARTICIPATING ENTITY’S Project Manager/Primary Contact shall carry out PARTICIPATING ENTITY’s administrative and management functions under their WOR, shall be responsible for acceptance of their WOR deliverables, and shall provide support and overall direction to CONTRACTOR.

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

d. CONTRACTOR agrees and understands that STATE’s execution of this Master Contract or any executed WOR is predicated, in part and among other considerations, on the utilization of the specific individuals and personnel qualifications as identified; primary being, Mitch Skyer, President. Therefore, CONTRACTOR agrees that:

a. Prior to assignment of new personnel, CONTRACTOR shall notify, in writing, PARTICIPATING ENTITY for all key or critical personnel who are to be directly assigned to this project. PARTICPATING ENTITY has the option to withhold approval by providing written notification for reasonable business concerns as quickly as practicable, but no more than 5 (five) calendar days from notification.

b. The personnel assigned must have the knowledge necessary to complete requirements as defined in the executed WOR.

4) CONTRACTOR shall warrant that all personnel assigned to perform tasks in response to an executed WOR will remain assigned for the agreed-upon length of time.

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

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

e. Upon request by PARTICIPATING ENTITY, CONTRACTOR shall replace any CONTRACTOR personnel that PARTICIPATING ENTITY determines, in its sole discretion, to be unable to https://www.ndit.nd.gov/standards perform the responsibilities of this Master Contract or an executed WOR acceptably, e.g., inappropriate or unprofessional personal conduct, professional inabilities, etc.

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

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

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

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

23. PROJECT MANAGEMENT

a. Reporting

1) CONTRACTOR personnel will be responsible for providing written reporting as stated in the

WOR.

b. Integrated Change Control Process

CONTRACTOR and PARTICIPATING ENTITY will utilize an integrated change control process to manage changes during the life of a project.

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

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

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

4) CONTRACTOR will continue performing the services in accordance with the original Contract unless otherwise agreed upon by PARTICIPATING ENTITY’s project manager.

Work shall not commence on any new activities related to the change request until all Parties agree in writing.

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

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

http://www.legis.nd.gov/cencode/t54c59.pdf http://www.legis.nd.gov/cencode/t12c60.pdf http://www.legis.nd.gov/cencode/t12c60.pdf

7) During the course of this Contract, if CONTRACTOR determines or could reasonably determine any PARTICIPATING ENTITY actions or directions constitute a requirement to perform additional work, CONTRACTOR shall notify PARTICIPATING ENTITY within thirty

(30) calendar days that PARTICIPATING ENTITY has requested CONTRACTOR to perform additional work in the form of a change request utilizing the process above. CONTRACTOR understands that it waives the right to request additional time and reimbursable costs if CONTRACTOR fails to notify PARTICIPATING ENTITY within thirty (30) calendar days of determining or reasonably being able to determine that any PARTICIPATING ENTITY actions or directions constitute a requirement to perform additional work under an executed

WOR.

c. Deliverable Acceptance

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

2) After receipt of items in Paragraph 23(c)(1), PARTICIPATING ENTITY will have five (5) working days or a different period of time as is agreed to by the Parties, in which to accept or reject each item in writing. PARTICIPATING ENTITY will accept by signature. If PARTICIPATING ENTITY rejects it, PARTICIPATING ENTITY will specify in writing its grounds for rejection and CONTRACTOR shall use its best efforts to revise any issues for the deliverables to be acceptable to PARTICIPATING ENTITY within the following five (5) working days. If PARTICIPATING ENTITY rejects it a second time, PARTICIPATING ENTITY will have the option of repeating the procedure as described in this acceptance statement above, escalating the issue to Agency Head or terminating an executed WOR upon written notice to CONTRACTOR.

d. Final Acceptance

1) The successful completion of all deliverables as stated in the WOR in accordance with the deliverable acceptance process AND

2) The final delivered product fully implemented in PARTICIPATING ENTITY’s live production environment AND

3) PARTICIPATING ENTITY has sixty (60) calendar days thereafter in which to accept or reject it in writing. If PARTICIPATING ENTITY rejects it, PARTICIPATING ENTITY shall specify in writing its grounds for rejection and CONTRACTOR shall use its best efforts to make the product conform to the requirements of this Contract as soon as possible and at no additional cost to PARTICIPATING ENTITY. CONTRACTOR shall continue to use its best efforts to make the product conform to the requirements of this Master Contract or an executed WOR until PARTICIPATING ENTITY accepts the product or terminates an executed WOR upon written notice to CONTRACTOR.

24. PRODUCT CONFORMITY

PARTICIPATING ENTITY has twelve (12) months following Final Acceptance of the product(s) delivered by CONTRACTOR pursuant to this Master Contract to verify that the product(s) conform to the requirements of this Master Contract and an executed WOR and perform according to CONTRACTOR system design specifications. Upon recognition of an error, deficiency, or defect, by PARTICIPATING ENTITY, CONTRACTOR shall be notified by PARTICIPATING ENTITY citing any specific deficiency (deficiency being defined as CONTRACTOR having performed incorrectly with the information provided by PARTICIPATING ENTITY, not CONTRACTOR having to modify a previous action due to additional and/or corrected information from PARTICIPATING ENTITY).

CONTRACTOR, at no additional charge to PARTICIPATING ENTITY, shall provide a correction or provide a mutually acceptable plan for correction within thirty (30) calendar days following the receipt of PARTICIPATING ENTITY’s notice to CONTRACTOR. If CONTRACTOR’s correction is inadequate to correct the deficiency, or defect, or the error recurs, PARTICIPATING ENTITY may, at its option, act to correct the problem. CONTRACTOR shall be required to reimburse PARTICIPATING ENTITY for any such costs incurred or PARTICIPATING ENTITY may consider this to be cause for termination.

25. WARRANTY

CONTRACTOR shall provide a 365 day warranty upon Final Acceptance.

26. SOFTWARE LICENSE

All ownership rights to CONTRACTOR’s software provided to STATE under this Contract, including any executed WOR, (intellectual property owned by CONTRACTOR prior to performance of this Contract) shall remain with CONTRACTOR. If CONTRACTOR incorporates any of CONTRACTOR’s Software in any customizations, implementation or training deliverables, additional module customization “work for hire” product as defined in 17 U.S.C §101, provided to STATE, CONTRACTOR agrees to provide written notice to STATE of its incorporation in the work product and to convey to STATE a non-exclusive, perpetual, cost-free license, and patent and copyright indemnity, for STATE to use the implementation or training deliverable “work for hire” product as defined in 17 U.S.C §101, for its intended purpose.

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

The terms and service level obligations are set forth in Exhibit C Software as a Service (SaaS) Service Level Agreement (SLA) are made a part of this Master Contract through its reference here.

CONTRACTOR shall provide Subscription Services, including software/hardware updates and technical support services for the Subscription Services pursuant to this Contract commencing at the end of the warranty period. CONTRACTOR and PARTICIPATING ENTITY shall negotiate the terms and price of such services. CONTRACTOR warrants that it will continue to offer Subscription Services for the product(s) for a minimum of five (5) years from the date of final acceptance of any software/product update.

a. Subscription Services:

1) The service is based on the account and the number of vehicles that provide fixed route services.

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

PARTICIPATING ENTITY.

3) There shall be no limit on the number of machines, number of locations, or size of processors on which PARTICIPATING ENTITY can operate the service.

4) If CONTRACTOR reduces or replaces the functionality contained in the software and provides this functionality as a separate or renamed product, then PARTICIPATING ENTITY shall be entitled to usage of such software product at no additional fees.

b. Subscription Period

The subscription period begins with a prorated period upon Final Acceptance], and continues on an annual basis consistent with the WOR term.

c. Purchase of Additional Users

PARTICIPATING ENTITY may purchase additional Users during the term of this Master Contract at the same price offered by CONTRACTOR under the terms of this Master Contract.

d. Subscription Fee Cap

CONTRACTOR agrees that any change to the annual Services fee may increase by not more than the lower of 3% or Consumer Price Index (CPI). The rates shall be adjusted in accordance with the index titled “All Urban Consumers (CPI-U). for the U.S. City Average. All Items 1982- 84=100”, prepared by the U.S. Bureau of Labor Statistics.

e. Right to Change Support Plan Level

PARTICIPATING ENTITY may choose to change its subscription to CONTRACTOR’s Subscription Services plan to a higher or lower level plan that is offered by CONTRACTOR at the Master Contract’s next renewal date upon thirty (30) calendar days’ notice to

CONTRACTOR.

f. Right to Modify or Cancel Services

PARTICIPATING ENTITY may choose to cancel Subscription Services at this Master Contract’s next renewal date upon thirty (30) calendar days’ notice to CONTRACTOR.

28. SAAS AND DATA SECURITY

Remote access to Data from outside the continental United States, including remote access to Data by authorized SaaS support staff in identified support centers, is prohibited unless approved in advance by Chief Information Officer of the State.

29. DATA PROCESSING AND LOCATION:

a) CONTRACTOR shall transmit, process, and store STATE Data within the continental United States.

b) CONTRACTOR shall notify STATE at least ninety (90) days prior to any relocation of STATE’s Data to a different hosting facility. STATE reserves the right to terminate the Master Contract or an executed WOR without penalty if STATE does not approve of the new hosting facility.

30. SOFTWARE AUDIT

CONTRACTOR may, upon sixty (60) calendar days’ notice to PARTICIPATING ENTITY, but not more frequently than once per year, either request a signed certification by an officer of PARTICIPATING ENTITY verifying that the software is being used in accordance with the terms of this Contract or audit PARTICIPATING ENTITY’s use of the software to ensure compliance with the terms and conditions of this Contract. Any such audit shall be conducted at CONTRACTOR’s expense during regular business hours at PARTICIPATING ENTITY’s offices and shall not unreasonably interfere with PARTICIPATING ENTITY’s business activities. CONTRACTOR shall provide documentation to PARTICIPATING ENTITY defining the scope of the audit not less than thirty (30) calendar days prior to the audit. PARTICIPATING ENTITY shall have sixty (60) calendar days to review CONTRACTOR’s audit findings. If an audit reveals that PARTICIPATING ENTITY’s use of the Software exceeds the use permitted hereunder, then CONTRACTOR may invoice PARTICIPATING ENTITY for the applicable additional amounts based on the price agreement between the Parties as of the date of completion of the audit.

31. NOTICE

All notices or other communications required under this Master Contract must be given by email, registered or certified mail and are complete on the date postmarked when addressed to the Parties at the following addresses:

STATE CONTRACTOR

Name Sowmya Karumanchi Name Mitchel Skyer

Title IT Procurement Officer Title President

Address 600 East Boulevard Avenue Address 6100 Lake Forrest Dr, Ste 410

City, State, Zip Bismarck ND 58505 City, State, Zip Atlanta, GA 30328

Email skarumanchi@nd.gov Email accounting@passiotech.com

Notice provided under this provision does not meet the notice requirements for monetary claims against STATE found at N.D.C.C § 32-12.2-04.

32. CONFIDENTIALITY

CONTRACTOR shall not use or disclose any information it receives from STATE under this Contract that STATE has previously identified as confidential or exempt from mandatory public disclosure except as necessary to carry out the purposes of this Contract or as authorized in advance by STATE. STATE shall not disclose any information it receives from CONTRACTOR that CONTRACTOR has previously identified as confidential and that STATE determines in its sole discretion is protected from mandatory public disclosure under a specific exception to the North Dakota public records law, N.D.C.C. ch. 44-04. The duty of STATE and CONTRACTOR to maintain confidentiality of information under this section continues beyond the Term of this Contract.

33. COMPLIANCE WITH PUBLIC RECORDS LAWS

Under the North Dakota public records law and subject to the Confidentiality clause of this Master Contract, certain records may be open to the public upon request.

Public records may include: (a) records STATE receives from CONTRACTOR under this Master Contract, including any executed WOR, (b) records obtained by either Party under this Master Contract, including any executed WOR, and (c) records generated by either Party under this Master Contract, including any executed WOR.

CONTRACTOR agrees to contact STATE or PARTICIPATING ENTITY immediately upon receiving a request for information under the public records law and to comply with their instructions on how to respond to such request.

34. INDEPENDENT ENTITY

CONTRACTOR is an independent entity under this Master Contract and is not a STATE employee for any purpose, including the application of the Social Security Act, the Fair Labor Standards Act, the Federal Insurance Contribution Act, the North Dakota Unemployment Compensation Law and the North Dakota Workforce Safety and Insurance Act. CONTRACTOR retains sole and absolute discretion in the manner and means of carrying out CONTRACTOR’s activities and responsibilities under this Master Contract, except to the extent specified in this Master Contract.

http://www.legis.nd.gov/cencode/t32c12-2.pdf http://www.legis.nd.gov/cencode/t44c04.pdf

35. ASSIGNMENT AND SUBCONTRACTS

CONTRACTOR may not assign or otherwise transfer or delegate any right or duty without STATE’s express written consent, provided, however, that CONTRACTOR may assign its rights and obligations under this Master Contract in the event of a change of control or sale of all or substantially all of its assets related to this Master Contract, whether by merger, reorganization, operation of law, or otherwise. Should Assignee be a business or entity with whom STATE is prohibited from conducting business, STATE shall have the right to terminate in accordance with the Termination for Cause section of this Master Contract.

CONTRACTOR may enter subcontracts provided that any subcontract acknowledges the binding nature of this Master Contract and incorporates this Master Contract, including any executed WOR’s and attachments. CONTRACTOR is solely responsible for the performance of any subcontractor with whom CONTRACTOR contracts. CONTRACTOR does not have authority to contract for or incur obligations on behalf of STATE.

36. SPOLIATION – NOTICE OF POTENTIAL CLAIMS

CONTRACTOR shall promptly notify STATE of all potential claims that arise or result from this Master Contract. CONTRACTOR shall also take all reasonable steps to preserve all physical evidence and information that may be relevant to the circumstances surrounding a potential claim, while maintaining public safety, and grants to STATE the opportunity to review and inspect such evidence, including the scene of an accident.

37. MERGER AND MODIFICATION, CONFLICT IN DOCUMENTS

This Master Contract, including the following documents, constitutes the entire agreement between the Parties. There are no understandings, agreements, or representations, oral or written, not specified within this Master Contract.