3_ DAS Terms and Conditions.pdf

STATE OF OHIO

STANDARD TERMS AND CONDITIONS

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I. GLOSSARY

The following definitions are applicable to all components of the Contract:

A. Acceptance: Approval and retention by the Ordering Agency of any Deliverables, delivered to fulfill

Contract requirements.

B. Contract: The contract to which these Standard Terms and Conditions are attached and/or incorporated.

C. Contract Data: State Data that the Contractor has access to, transmits, processes, possesses, creates or stores in providing services to the State.

D. Contracting Agency: The agency with which the Contractor enters into the Contract and that has the authority to enforce the Terms and Conditions of this Contract. The Contracting Agency may also be the Ordering Agency.

E. Contractor: The person or entity with whom the State has entered into the Contract, including subcontractors or other personnel under the authority or control of the Contractor performing or providing the Deliverables under this Contract.

F. Default: The omission or failure to perform any obligation under this Contract.

G. Deliverable: Any Contractor-provided products, supplies, services, work or product described in the specifications of the Contract.

H. Ordering Agency: The entity that purchases and accepts the Deliverables under this Contract and that is responsible for payment. The Ordering Agency may also be the Contracting Agency.

I. State: The State of Ohio, which may include the Contracting and/or Ordering Agency as applicable.

J. State Data: All data and information provided by, created by, created for, or related to the activities of the State and any information from, to, or related to all persons that conduct business or personal activities with the State, including, but not limited to, Confidential Data (defined in Exhibit A). All State Data is and will remain the property of the State and, unless specifically provided otherwise in the Contract, Contractor acquires no right, title, or interest in or to State Data.

K. Time and Materials Contract: A contract in which Contractor is paid the following: (1) an hourly rate for labor actually performed; and (2) if applicable and with prior approval by the Ordering Agency, the cost of the materials or supplies actually used by the Contractor. Such rates and costs will be established through Contractor’s submission of a price sheet, written quote, estimate, or invoice, as approved by the State. Hourly rates may include wages, overhead, general and administrative expenses, and reasonable profit. Materials or supplies may include the Contractor’s direct and indirect costs attributable to the work performed.

II. REGULATORY CONTRACT REQUIREMENTS

A. ANTITRUST. The State and the Contractor recognize that, in actual economic practice, overcharges resulting from antitrust violations are usually borne by the State. Pursuant to Section

109.81 of the Ohio Revised Code, the Contractor therefore assigns to the State all state and federal antitrust claims and causes of action that the Contractor has or acquires relating to the goods and services acquired under this Contract.

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B. APPROPRIATION OF FUNDS. The State’s funds are contingent upon the availability of lawful appropriations. If the General Assembly or any third party who is providing funding fails at any time to continue funding for the payments or any other obligations due by the State under this Contract, the State will be released from its obligations on the date funding expires. If appropriations are approved, the State may continue this Contract past the current biennium by issuing written notice of continuation to the Contractor. Any obligations of the State are subject to Section 126.07 of the Ohio Revised Code.

C. CAMPAIGN CONTRIBUTIONS. Unless this Contract was solicited by competitive bid pursuant to

Section 125.07 of the Ohio Revised Code, Contractor hereby certifies that all applicable parties are in full compliance with Section 3517.13 of the Ohio Revised Code.

D. COMPLIANCE WITH LAW. The Contractor must comply throughout the duration of the Contract with all applicable federal, state, and local laws and Executive Orders while performing under this Contract.

E. CONFLICT OF INTEREST/ETHICS. Contractor represents, warrants and certifies that it and its employees engaged in the administration or performance of this Contract are knowledgeable of and understand the Ohio Ethics and Conflict of Interest laws including but not limited to Chapter 102 and Sections 2921.42 and 2921.43 of the Ohio Revised Code. Contractor further represents, warrants, and certifies that neither Contractor nor any of its employees will do any act that is inconsistent with such laws or otherwise presents a conflict of interest.

F. CONTRACTOR’S WARRANTY AGAINST AN UNRESOLVED FINDING FOR RECOVERY.

Throughout the Contract term, the Contractor warrants that the Contractor is not subject to an unresolved finding for recovery pursuant to Section 9.24 of the Ohio Revised Code. If the warranty is false on the date the parties signed this Contract, the Contract is void ab initio, and the Contractor must immediately repay any funds paid under this Contract.

G. DEBARMENT. Throughout the Contract term, the Contractor represents and warrants that neither it, nor any of its subcontractors, are debarred from consideration for contract awards by any governmental agency. If this representation and warranty is found to be false on the date the parties signed this Contract, this Contract is void ab initio, and the Contractor must immediately repay any funds paid under this Contract.

H. DRUG FREE WORKPLACE. The Contractor agrees to comply with all applicable state and federal laws regarding drug-free workplace and must make a good faith effort to ensure that all Contractor employees, while working on State property or performing work on behalf of the State, will not purchase, transfer, use, be under the influence of, or possess illegal drugs, non-medical cannabis (recreational marijuana), or alcohol, or abuse prescription drugs or medical marijuana in any way.

I. PROHIBITION OF THE EXPENDITURE OF PUBLIC FUNDS FOR OFFSHORE SERVICES. No

State Cabinet Agency, Board or Commission will enter into any contract to purchase services provided outside of the United States or that allows State Data to be sent, taken, accessed, tested, maintained, backed up, stored, or made available outside of the United States, unless the Contracting Agency obtains a duly signed waiver from the State. Notwithstanding any other terms of this Contract, the State reserves the right to recover any funds paid for services the Contractor performs or for data located outside of the United States for which a waiver was not received. The State does not waive any other rights and remedies provided to the State in this Contract.

Further, no State agency, board, commission, State educational institution, or pension fund will make any purchase from or investment in any Russian institution or company. Notwithstanding any other terms of this Contract, the State reserves the right to recover any funds paid to Contractor for purchases or investments in a Russian institution or company in violation of this paragraph.

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The Contractor must complete the Contractor/Subcontractor Affirmation and Disclosure Form affirming the Contractor understands and will meet the requirements of the above prohibition.

During the performance of this Contract, if the Contractor changes the location(s) disclosed on the Affirmation and Disclosure Form, Contractor must complete and submit a revised Affirmation and Disclosure Form to the Contracting Agency reflecting such changes. The applicable provisions of this section will expire if the applicable Executive Order is no longer effective.

J. GOVERNING LAW. This Contract is governed by the laws of the State of Ohio, and the venue for any disputes will be exclusively with the appropriate court in Franklin County, Ohio.

K. INDEPENDENT CONTRACTOR ACKNOWLEDGEMENT. It is fully understood and agreed that

Contractor is an independent contractor and is not an agent, servant, or employee of the State.

Contractor declares that it is engaged as an independent business and has complied with all applicable federal, state, and local laws regarding business permits and licenses of any kind, including, but not limited to, any insurance coverage, workers’ compensation, or unemployment compensation that is required in the normal course of business and will assume all responsibility for any federal, state, municipal or other tax liabilities. Additionally, Contractor understands that as an independent contractor, it is not a public employee and is not entitled to contributions from the State to any public employee retirement system.

Contractor acknowledges and agrees that any individual providing personal services under this Contract is not a public employee for purposes of Chapter 145 of the Ohio Revised Code. Unless Contractor is a “business entity” as that term is defined in Section 145.037 of the Ohio Revised Code (“an entity with five or more employees that is a corporation, association, firm, limited liability company, partnership, sole proprietorship, or other entity engaged in business”), Contractor must have any individual performing services under the Contract complete and submit to the Ordering Agency the Independent Contractor/Worker Acknowledgement form.

Contractor’s failure to complete and submit the Independent Contractor/Worker Acknowledgement form at the time Contractor executes this Contract will serve as Contractor’s certification that Contractor is a “business entity” as that term is defined in Section 145.037 of the Ohio Revised Code.

L. REGISTRATION WITH THE SECRETARY OF STATE. Contractor certifies that it is one of the following:

1. A domestic corporation that is properly registered with the Ohio Secretary of State; or

2. A foreign corporation, not incorporated under the laws of the State of Ohio, but is registered with the Ohio Secretary of State pursuant to Sections 1703.01 to 1703.31 of the Ohio Revised Code, as applicable; or

3. Exempt from the registration requirements of the Ohio Secretary of State.

M. TAXES. Pursuant to Section 5739.02 of the Ohio Revised Code, the State is exempt from sales tax. Pursuant to Section 5741.02(C) of the Ohio Revised Code, the State is exempt from use tax.

N. TRADE. Pursuant to Section 9.76(B) of the Ohio Revised Code, Contractor warrants that

Contractor is not boycotting any jurisdiction with whom the State of Ohio can enjoy open trade, including Israel, and will not do so during the Contract period.

The State of Ohio does not acquire supplies or services that cannot be imported lawfully into the United States or transact business with any entity or individual subject to financial sanctions imposed by the United States. The Contractor certifies that it, its subcontractors, and any agent of the Contractor or its subcontractors, will acquire any supplies or services in accordance with all trade control laws, regulations or orders of the United States, including the prohibited source https://dam.assets.ohio.gov/image/upload/procure.ohio.gov/pdf/StateLocalAgencies/Resources_Forms/Affirmation_and_Disclosure_Form_fillable_form.pdf https://dam.assets.ohio.gov/image/upload/procure.ohio.gov/pdf/StateLocalAgencies/Resources_Forms/Affirmation_and_Disclosure_Form_fillable_form.pdf https://www.opers.org/forms-archive/PEDACKN-Non-Member-Acknowledgment.pdf

Rev. 033125 Page 4 regulations set forth in subpart 25.7, Prohibited Sources, of the Federal Acquisition Regulation and any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control. A list of those entities and individuals subject to sanctions can be found at https://home.treasury.gov/policy-issues/financial-sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists. These sanctions generally preclude most transactions involving Cuba, Iran, and Sudan, and most imports from Burma or North Korea.

O. USE OF MBE AND EDGE VENDORS. Section 125.081 of the Ohio Revised Code requires State agencies to set-aside purchases for Minority Business Enterprises (MBE) and Executive Order 2008-13S encourages use of Encouraging Diversity, Growth and Equity (EDGE) businesses.

Therefore, the State encourages the Contractor to purchase goods and services from Ohio certified MBE and EDGE vendors.

P. LEGAL REPRESENTATION AND RIGHTS. The Ohio Attorney General is the chief law officer for the State of Ohio, its agencies, boards and commissions, and only the Ohio Attorney General has the authority to appoint outside legal counsel to represent the State. Contractor agrees that any provisions in this Contract or any documents incorporated by reference that provide or allow for outside legal representation to defend or settle claims on behalf of the State or provide for a third party to have sole control of a defense or settlement of a claim do not meet the requirements of state law and are considered stricken. Contractor also agrees that, unless specifically agreed to in writing by the State, any provisions that require or provide for a waiver of any legal rights, remedies, or litigation defenses (i.e., waiver of a jury trial) do not meet the requirements of state law and are considered stricken.

Q. STATUTE OF LIMITATIONS. Statutes of limitations generally do not apply to actions brought by the State and any such provisions in this Contract or in any documents incorporated by reference are considered stricken.

R. ACCESSIBILITY REQUIREMENTS. If applicable, the Contractor warrants it will comply with federal and state disabilities laws and regulations and also warrants that the Deliverables provided under this Contract conform to the applicable accessibility requirements of WCAG 2.1 Level AA or the most current version (the “Accessibility Standards”), Section 508 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act. The Contractor must promptly respond to and resolve any complaint regarding accessibility of its products and services. If at any time, the Deliverables provided under this Contract do not fully conform to the Accessibility Standards, the Contractor must immediately notify the State in writing of the nonconformance and provide to the State a plan to achieve conformance to the Accessibility Standards, including an intended timeline for conformance. The Contractor further agrees to indemnify and hold harmless the State from any claims or damages arising out of Contractor’s failure to comply with the requirements of this section.

Failure to comply with these requirements will constitute a material breach of this Contract for which the State may terminate this Contract.

III. CONTRACT CONSTRUCTION

A. TERM OF CONTRACT. The effective date of the Contract is the effective date stated in the Contract or the date the Contract is fully executed, whichever is later. The Contract will remain in effect until the ending date stated in the Contract unless earlier terminated pursuant to the terms of the Contract. Notwithstanding the foregoing, the expiration or early termination of this Contract will not limit the Contractor’s continuing obligations with respect to Deliverables that the State paid for or ordered before the expiration or termination, or limit the State’s rights in such, including any warranty services, licensed material, paid subscriptions, the support or maintenance thereof, or other services.

If not otherwise set forth in the Contract, the State may solely renew this Contract at its discretion for a period of one month. This Contract may be further renewed at the discretion of the State. The https://home.treasury.gov/policy-issues/financial-sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists https://home.treasury.gov/policy-issues/financial-sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists

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State will issue a notice to the Contractor if the State decides to renew this Contract and the Contractor may decline such renewal if it so desires. The Contractor must not obligate resources in anticipation of a renewal until notice is provided.

B. CONTRACT AMENDMENTS / WAIVER.

1. Amendments. No change to any provision of this Contract will be effective unless it is in writing and signed by the parties to the Contract. Unless specifically provided otherwise in this Contract or agreed to in writing by the Contracting or Ordering Agency, no terms or conditions included on a Contractor’s quote or ordering document will be valid or enforceable against the State and are specifically excluded from this Contract. Further, no “click-through,” “shrink-wrap,” “browse-wrap,” or other terms that have not been specifically negotiated by the Contractor and the State, whether before, on, or after the date of this Contract, will be effective to add or modify the terms of this Contract, regardless of any party’s “acceptance” of those terms by electronic means.

2. Waiver. The failure of either party at any time to demand strict performance by the other party of any of the terms of this Contract will not be a waiver of those terms or to any other terms of this Contract. Waivers must be in writing to be effective, and either party may at any later time demand strict performance.

C. ASSIGNMENT / DELEGATION. The Contractor must not assign any of its rights nor delegate any of its duties under this Contract without written consent of the State. Any assignment or delegation not consented to may be deemed void by the State.

D. BINDING EFFECT. Subject to the limitations on assignment provided elsewhere in this Contract, this Contract will be binding upon and inure to the benefit of the respective successors and assigns of the State and the Contractor.

E. LANGUAGE CONSTRUCTION. This Contract will be construed in accordance with the plain meaning of its language and neither for nor against the drafting party.

F. DAYS AND TIMES. When this Contract refers to days, it means calendar days, unless it expressly provides otherwise. When this Contract refers to times, it means Columbus, Ohio local time.

G. HEADINGS. The headings in this Contract are for convenience only and will not affect the interpretation of any of the Contract terms and conditions.

H. INJUNCTIVE RELIEF. Nothing in this Contract is intended to limit the State’s right to injunctive relief if such is necessary to protect its interests or to keep it whole.

I. NOTICES. For any notice under this Contract to be effective, the notice must be made in writing and delivered to the appropriate contact provided in the Contract.

J. ORDER OF PRIORITY. If there is any inconsistency or conflict between these Standard Terms and

Conditions and any provision incorporated by reference or included by the Contractor, these Standard Terms and Conditions will prevail.

K. PUBLICITY. The Contractor must not do the following without prior, written consent from the State:

1. Advertise that the Contractor is doing business with the State;

2. Use this Contract as a marketing or sales tool; or

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3. Affix any advertisement or endorsement, including any logo, graphic, text, sound, video, and company name, to any State-owned property, application, or website, including any website hosted by Contractor or a third party.

L. SEVERABILITY. If any provision of the Contract or the application of any provision is held by a court to be contrary to law, the remaining provisions of the Contract will remain in full force and effect.

M. SUBCONTRACTING. The State recognizes that it may be necessary for the Contractor to use a subcontractor to perform a portion of the work under the Contract. In those circumstances, the Contractor must submit a list identifying the Contractor’s subcontractors. The Contractor may not enter into subcontracts related to the Contract after award without written approval from the State.

If any change occurs during the term of the Contract that requires a change to identified subcontractors, the Contractor must amend its list of subcontractors and request written approval from the State. The State reserves the right to reject any subcontractor submitted by the Contractor.

All subcontracts will be at the sole expense of the Contractor and the Contractor will be solely responsible for payment of its subcontractors. The Contractor assumes responsibility for all sub-contracting and third-party manufacturer work performed or product delivered under the Contract.

All agreements with subcontractors must incorporate the applicable terms of this Contract by reference and include the following provisions: (1) the subcontractor agrees to be bound by all applicable terms and conditions of this Contract; and (2) the terms of this Contract prevail over any conflicting terms of the agreement with the subcontractor. The Contractor will be the sole point of contact with regard to all contractual matters.

N. SURVIVORSHIP. All sections herein relating to payment, confidentiality, license and ownership, indemnification, maintenance, publicity, warranties and limitations on damages will survive the termination of this Contract. In addition, to the extent necessary to carry out the purpose of this Contract, all other terms, conditions, representations or warranties contained in this Contract will survive the expiration or termination of this Contract.

O. COUNTERPARTS. This Contract may be executed simultaneously in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

IV. ORDER AND PAYMENT PROVISIONS

A. CERTIFICATION OF FUNDS/PURCHASE ORDER REQUIREMENTS. None of the duties or obligations in this Contract are binding on the State and the Contractor will not begin performance on this Contract until all of the following conditions are met:

1. All statutory provisions under the Ohio Revised Code have been met.

2. All necessary funds are made available by the appropriate Ordering Agency.

3. If required, the Controlling Board of Ohio has approved the purchase in accordance with

Section 127.16 of the Ohio Revised Code.

4. If applicable, an official State of Ohio Purchase Order (P.O.) has been issued from the appropriate Ordering Agency, which is certification that the above requirements have been met.

B. CONTRACT ORDERS. Ordering Agencies will order supplies or services under this Contract from the Contractor directly, unless otherwise provided in the Contract. All orders must be in writing and the Contractor may receive orders by Ordering Agencies electronically, in person, by payment card (if applicable), or by purchase order from the Ordering Agency. If different than the Ordering Agency, the Contracting Agency will not be responsible for orders placed by unauthorized

Rev. 033125 Page 7 employees of the Ordering Agency. The Contractor must ensure that any entity placing an order under this Contract has the authority to do so.

If Contractor’s quote or ordering document contains or incorporates by reference any terms or conditions other than a description of the goods or scope of services and the prices for those goods and/or services, those terms or conditions are excluded from this Contract and are of no effect.

C. INVOICE REQUIREMENTS. The Contractor or dealer authorized to submit invoices must submit an invoice to the office designated in the purchase order. The Contractor will only be compensated for the Deliverables accepted by the State. To be a proper invoice, the invoice must include the following:

1. The purchase order number authorizing the delivery of supplies or services;

2. State of Ohio Contract Number (if applicable);

3. Ordering Agency Name;

4. Ordering Agency Billing Address;

5. Delivery location of supplies or services;

6. Contractor Name;

7. Contractor Address;

8. Contractor’s Unique Invoice Number;

9. Date that services were provided or that supplies were delivered;

10. Itemization of supplies or services provided, including cost;

11. For leases, the invoice must also include the payment number (e.g., 1 of 36);

12. For Time and Materials Contracts, the invoice must reflect labor hours actually worked and, if applicable, supplies used; and

13. Clear statement of total payment expected.

D. PAYMENT DUE DATE AND PROCESS. Unless otherwise stated in this Contract and in accordance with Section 126.30 of the Ohio Revised Code, payments under this Contract will be due on the 30th calendar day after the date of actual receipt of a proper invoice in the office designated to receive the invoice. The date payment is issued by the State will be considered the date payment is made. Payment of an invoice by the State will not prejudice the State’s right to object to or question that or any other invoice or matter in relation thereto. The State’s preferred method of payment is by electronic funds transfer. However, the Ordering Agency may also make payment by State of Ohio payment card or by warrant issued by the Office of Budget and Management. At the time of Contract award, Contractor must be able to accept all forms of payment from the State and Ordering Agency.

E. REIMBURSABLE EXPENSES. The State will not pay reimbursable expenses unless specifically identified in the Contract. The Contractor will assume all expenses that it incurs in the performance of this Contract that are not identified as reimbursable.

F. TRAVEL. Any travel that the Contractor requires to perform its obligations under this Contract will be at the Contractor’s expense. The State will pay for any additional travel that it requests only with prior written approval of the Contractor’s submitted travel expenses. The State will pay for all additional travel expenses that it requests and approves in accordance with Section 126.31 of the Ohio Revised Code and Rule 126-1-02 of the Ohio Administrative Code.

V. LIABILITY PROVISIONS

A. GENERAL REPRESENTATIONS AND WARRANTIES. The Contractor warrants that:

1. The recommendations, guidance, and performance of the Contractor under this Contract will be in accordance with the industry’s professional standards, the requirements of this Contract and without any material defect.

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2. No Deliverable will infringe on the intellectual property rights of any third party.

3. All warranties are in accordance with the Contractor’s standard business practices.

4. The Deliverables are merchantable and fit for the particular purpose described in this Contract and will perform substantially in accordance with its user manuals, technical materials, and related writings.

5. The Deliverables comply with all governmental, environmental and safety standards.

6. The Contractor has the right to enter into this Contract.

7. The Contractor has not entered into any other contracts or employment relationships that restrict the Contractor’s ability to perform under this Contract.

8. The Contractor will observe and abide by all applicable laws and regulations, including those of the State regarding conduct on any premises under the State’s control.

9. The Contractor has good and marketable title to any Deliverable delivered under this Contract for which title passes to the State.

10. The Contractor has the right and ability to grant the license granted in any Deliverable for which title does not pass to the State.

11. If this Contract is labeled as a mandatory use contract by the State, the Contractor warrants that the Contractor has not and will not enter into any contracts without written approval of the State to perform substantially identical services for the Ordering Agencies required to use this Contract such that the services duplicate the work done or to be done under the other contracts.

12. For one year from the delivery date of any products or software, the products or software will be free of material defects, including the media on which it is delivered, if applicable.

The Contractor must notify the State in writing immediately upon the discovery of any breach of the warranties given above. Further, if any work of the Contractor or any Deliverable fails to comply with these warranties, and the Contractor is so notified in writing, the Contractor will correct such failure in a commercially reasonable time or as specified in the Contract. If the Contractor fails to comply, the Contractor will refund the amount paid for the Deliverable. The Contractor will also indemnify the State for any direct damages and claims by third parties based on breach of these warranties.

Any other express warranties offered by the Contractor will be a minimum of one year from acceptance or the Contractor’s standard warranty whichever is longer.

B. INDEMNITY.

1. General Indemnity. The Contractor must indemnify the State for all liability and expense arising out of the performance of this Contract, provided that such liability or expense is due to the negligence or other tortious conduct of the Contractor, its employees, agents, or subcontractors. The Contractor will not be responsible for any damages or liability to the extent caused by the negligence or willful misconduct of the State, its employees, other contractors, or agents.

2. Security Incident Indemnity. Contractor must indemnify the State for all third party liability and expense resulting from a Security Incident (defined in Exhibit I) arising from Contractor’s performance under this Contract and involving Contract Data. Damages resulting from the Security Incident will be considered direct damages under this Contract and include the following: (i) expenses for legally-required notification of impacted individuals; (ii) responding to inquiries from such notifications; (iii) government fines and penalties assessed against the State; (iv) costs to the State for investigations, audits or forensic services as applicable related to the Security Incident; (v) mitigation measures, including 12 months of credit monitoring and identity theft protection for individuals impacted by the Security Incident; (vi) costs to the State to reconstruct data that was lost or to repair any damaged State information technology infrastructure; and (vii) other such expenses incurred by the State as a result of the Security Incident involving Contract Data. Regardless of any limitation on liability of any kind in this Contract, the Contractor will be responsible for acquiring one year’s identity theft protection

Rev. 033125 Page 9 services on behalf of any individual or entity whose personally identifiable information is compromised while it is in the Contractor’s possession. Contractor’s indemnification obligations under this paragraph apply whether the expenses or costs incurred by the State are performed by State employees or hired contractors. Contractor must also work with the State to directly notify impacted individuals or persons as required by Chapters 1347 and 1349 of the Ohio Revised Code or as otherwise directed by the State.

3. Infringement Indemnity. The Contractor must indemnify, release, protect, and hold the State harmless from any third party claim of infringement of a copyright, patent, trade secret, or similar intellectual property right based on the State’s proper use of any Deliverable under this Contract. This obligation of indemnification will not apply where the State has modified or misused the Deliverable and the claim of infringement is based on the modification or misuse.

If a successful claim of infringement is made, or if the Contractor reasonably believes that an infringement claim that is pending may actually succeed, the Contractor must take one of the following four actions within an acceptable timeframe:

a. Modify the Deliverable so that the Deliverable is no longer infringing;

b. Replace the Deliverable with an equivalent or better item;

c. Acquire the right for the State to use the infringing Deliverable as intended; or

d. Remove the infringing Deliverable and refund the fee the State paid for such Deliverable and any other affected Deliverable.

4. Indemnity Procedure. For the Contractor’s indemnification obligations in this section, the State agrees to: (i) give the Contractor notice of any claim under this section as soon as reasonably practicable; (ii) give the Contractor the authority to settle or otherwise defend any such claim only upon consultation with and approval by the Ohio Attorney General; and (iii) assist with and cooperate in such defense or settlement as reasonably necessary and at Contractor’s expense. The State has the right to participate in the defense or settlement or any claim at its own expense.

C. INSURANCE. Until all obligations under this Contract are satisfied, and without limiting Contractor’s indemnification obligations herein, Contractor must procure and maintain, for the duration of the Contract, the insurance policies set forth below. Contractor must procure and maintain insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the services hereunder by the Contractor, its agents, representatives, or employees. All commercial insurance required must be provided by insurers with a rating of not less than A:VII from A.M. Best or a comparable rating agency, unless otherwise accepted by the State.

Coverage must be at least as broad as:

1. Commercial General Liability: written on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits of no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit will apply separately to this project/location or the general aggregate limit will be twice the required occurrence limit. Defense costs are outside of the policy limit.

The State of Ohio, its officers, officials and employees are to be covered as additional insureds on the commercial general liability policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations.

2. Automobile Liability: covering Symbol 1 (any auto), or if Contractor has no owned autos, Symbol 8 (hired) and 9 (non-owned), with a limit of no less than $1,000,000 per accident for bodily injury and property damage.

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3. Workers' Compensation: as required by the State of Ohio, or the state in which the work will be performed, with statutory limits, and Employer's Liability Insurance with a limit of no less than $1,000,000 per accident for bodily injury or disease. If Contractor is a sole proprietor, partnership, or has no statutory requirement for workers’ compensation, Contractor must provide a letter stating that it is exempt and agreeing to hold the State harmless from loss or liability for such.

The insurance obligations under this Contract are the minimum insurance coverage requirements and/or limits shown in this Contract. Any insurance proceeds in excess of or broader than the minimum required coverage and/or minimum required limits, which are applicable to a given loss, will be available to the State of Ohio. No representation is made that the minimum insurance requirements of this Contract are sufficient to cover the obligations of the Contractor under this

Pursuant to Section 2743.02(D) of the Ohio Revised Code, all applicable insurance or other means of recovery will apply to any claim arising from the Contractor’s activities relating to this Contract on a primary basis. The insurance or self-insurance maintained by the State will not contribute to claims made due to the Contractor’s negligence, errors, or omissions. No subrogation demands will be made against the State of Ohio, except where there is negligence on the part of the State, and any such demands will be reduced by all collateral recovery sources available to or received by the claimant.

Umbrella or Excess Insurance Policies. Umbrella or excess commercial liability policies may be used in combination with primary policies to satisfy the limit requirements above. Such umbrella or excess commercial liability policies must apply without any gaps in the limits of coverage and be at least as broad as and follow the form of the underlying primary coverage required above.

Notice of Cancellation. Contractor must provide the State of Ohio with written notice of cancellation of any insurance policy required above as soon as possible and must use best efforts to notify the State at least 30 days in advance of such cancellation. A lapse in any required insurance coverage during this Contract will be a breach of this Contract.

Deductibles and Self-Insured Retentions. Self-insured retentions must be declared to and approved by the State. The State may require the Contractor to provide proof of ability to pay losses and related investigations, claims administration and defense expenses within the retention. The policy language must provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or the State. Any and all deductibles and self-insured retentions will be the sole responsibility of the Contractor or subcontractor who procured such insurance and will not apply to the indemnified additional insured parties. The State may deduct from any amounts otherwise due to the Contractor to fund the self-insured retentions. Policies must not contain any self-insured retention provision that limits the satisfaction of the self-insured retention to the named insured. The policy must also provide that defense costs, including the allocated loss adjustment expenses, will satisfy the self-insured retention. The State reserves the right to obtain a copy of any policies and endorsements for verification.

Claims Made Policies. If any of the required policies provide coverage on a claims-made basis:

1. The retroactive date must be shown and must be before the date of the Contract or the beginning of contract work.

2. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Contract work.

3. If coverage is canceled or non-renewed and not replaced with another claims-made policy with a retroactive date prior to the Contract effective date, the Contractor must purchase "extended

Rev. 033125 Page 11 reporting'' coverage for a minimum of five years after completion of Contract work. The discovery period must be active during the extended reporting period.

Verification of Coverage. Contractor must furnish the State of Ohio with certificates of insurance and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates are to be received and approved by the State of Ohio before work commences. However, failure to obtain the required documents prior to the work beginning will not waive the Contractor’s obligation to provide them. The State of Ohio reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.

Subcontractors. Contractor must require and verify that all subcontractors maintain insurance with sufficient limits for the nature of the products or services they are providing, and Contractor must ensure that the State of Ohio is an additional insured on commercial general liability insurance required from subcontractors. Contractor will indemnify the State for damages that exceed a subcontractor’s policy limits.

Special Risks or Circumstances. The State reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances, as mutually agreed with the Contractor and incorporated into the Contract by written amendment.

D. LIMITATION OF LIABILITY. The parties agree as follows:

1. Neither party will be liable for any indirect, incidental or consequential loss or damage of any kind including but not limited to lost profits, even if the parties have been advised, knew, or should have known of the possibility of damages.

2. Notwithstanding any other limitation provisions and pursuant to Section 9.27 of the Ohio Revised Code, the Contractor is liable for any direct loss to the State for bodily injury, death, or damage to property of the State caused by the negligence, intentional or willful misconduct, fraudulent act, recklessness, or other tortious conduct of the Contractor or Contractor's employees or agents during its performance under this Contract.

3. Notwithstanding any other limitation provisions, the Contractor is liable for any other direct loss or damage to the State caused by the gross negligence, intentional or willful misconduct, fraudulent act, recklessness, or other tortious conduct of the Contractor or Contractor's employees or agents during its performance under this Contract.

4. Any limitation provisions contained in the documents and materials incorporated by reference into this Contract are considered stricken and of no force and effect.

5. All limitations provisions in this Contract are only to the extent such limitations do not impose an unlawful indemnification on the State.

E. PRODUCT RECALL. In the event a Deliverable has been recalled, seized, or embargoed and/or has been determined to be misbranded, adulterated, or in the case of consumable product, found to be unfit for human consumption by the packer, processor, manufacturer or by any state or federal regulatory agency, the Contractor must notify the Contracting Agency and all Ordering Agencies within two business days after notice has been given. The Contractor must, at the option of the Ordering Agency, either reimburse the purchase price or provide an equivalent replacement product at no additional cost. The Contractor must remove and/or replace the affected product within a reasonable time as determined by the Ordering Agency. At the option of the Ordering Agency, the Contractor may be required to reimburse storage and handling fees to be calculated from time of delivery and acceptance to actual removal. The Contractor will bear all costs associated with the removal and proper disposal of the affected product. Failure to reimburse the purchase price or provide equivalent replacement product will be considered a Default.

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VI. PERFORMANCE AND COMPLIANCE

A. AUDITS. The Contractor must keep all financial records related to this Contract in a manner consistent with Generally Accepted Accounting Principles (GAAP) or equivalent accounting principles. Additionally, the Contractor must keep separate business records for this Contract, including records of disbursements and obligations incurred that must be supported by contracts, invoices, vouchers and other data as appropriate.

During the period covered by this Contract and until the expiration of three years after final payment under this Contract, the Contractor agrees to provide the State, or any authorized representatives providing financial support to the work undertaken hereunder, with access to and the right to examine any books, documents, papers and records of the Contractor involving transactions related to this Contract.

The Contractor must, for each subcontract in excess of $25,000.00, require its subcontractors to agree to the same provisions of this Section. The Contractor may not artificially divide contracts with its subcontractors to avoid requiring subcontractors to agree to this provision. This provision does not apply to contracts where federal funds are used and the federal government requires audits of all subcontracts regardless of the amount of the contract.

The Contractor must provide access to the requested records at the location specified by the State no later than five business days after the request by the State, the State’s designee or any party with audit rights. If an audit reveals any of the following: (i) any material deviation from the Contract requirements; (ii) any misrepresentations; or (iii) any overcharge to the State or any other provider of funds for the Contract, the State or other party will be entitled to recover damages as well as the cost of the audit.

B. F.O.B. DESTINATION/PRE-PAID/ALLOWED. The Contractor must provide Deliverables under this Contract F.O.B. Destination/Pre-Paid/Allowed. The place of destination will be specified by the Ordering Agency on its purchase order or other ordering document. Cost of the freight must be borne and paid by the Contractor unless otherwise stated.

All risk of loss, regardless of the cause, will remain with the Contractor until title to the Deliverable passes to the State. Unless otherwise provided in this Contract, the State will determine whether the Contractor provided each Deliverable required in this Contract and has fully met all work requirements of this Contract. Title to any Deliverables will pass to the State on Acceptance of the Deliverable.

C. RETURNED GOODS. When the use of this Contract involves the purchase of goods, the following applies:

1. Returned goods, when due to Contractor error (i.e., over-shipment, defective merchandise, unapproved substitution, etc.), must be returned to the Contractor at the Contractor’s expense.

The Contractor must make arrangements to remove the returned goods from the Ordering Agency premises within seven calendar days after notification. The Contractor must not apply any restocking or other charges to the Ordering Agency. At the option of the Ordering Agency, replacement items may be accepted and will be shipped within seven calendar days of notification. Failure of the Contractor to arrange for return of the items within the specified time will result in the items being deemed as abandoned property and the Ordering Agency will dispose of the items accordingly.

2. For orders of custom manufactured items, the Contractor must provide a production sample of the item to the Ordering Agency for acceptance. The production sample must be identical to the item to be provided. The Ordering Agency will provide written acceptance of the item prior

Rev. 033125 Page 13 to the Contractor continuing with production. Once delivery and acceptance has been completed and the Ordering Agency determines for any reason that any remaining quantities will not be used, the Ordering Agency may request the return of the custom manufactured items. Acceptance of the return of custom manufactured items will be at the option of the Contractor. Failure of the Contractor to provide a production sample and obtain written approval from the Ordering Agency will result in the Contractor bearing all responsibility and costs associated with the return of these goods.

3. Returned goods of regular catalog stock merchandise, when due to Ordering Agency error (i.e., over purchase, discontinued use, inventory reduction, etc.) will be accepted by the Contractor if notice is given by the Ordering Agency within six months of delivery and acceptance. All items to be returned must be unused and in their original containers and in suitable condition for resale. Return of regular stock catalog merchandise, when delivery and acceptance exceed six months, will be at the option of the Contractor.

D. CUSTOM DELIVERABLES. All custom work done by the Contractor and covered by this Contract, including any software modifications, and documentation, will belong to the State with all rights, title, and interest in all intellectual property that comes into existence through the Contractor's work under this Contract being assigned to the State. Additionally, the Contractor waives any shop rights, author rights, and similar retained interests in any such custom developed materials. The Contractor must provide the State with all assistance reasonably needed to vest such rights of ownership in the State. However, the Contractor will retain ownership of all tools, methods, techniques, standards, and other development procedures, as well as generic and preexisting shells, subroutines, and similar material incorporated in any custom Deliverable ("Pre-existing Materials").

The Contractor grants the State a worldwide, non-exclusive, royalty-free, perpetual license to use, modify, and otherwise distribute all Pre-existing Materials that are incorporated in any custom-developed Deliverable, including distribution to third parties as required by funding mandates. The Contractor may not include in any custom Deliverable any intellectual property unless such has been created under this Contract or qualifies as Pre-existing Material. If the Contractor wants to incorporate any Pre-existing Materials in a custom Deliverable, the Contractor must disclose that desire to the State and obtain written approval from the State for doing so in advance. On the request of the Contractor, the State will incorporate any proprietary notice that Contractor may reasonably want for any Pre-existing Materials included in a custom Deliverable in all copies the State makes of that Deliverable. Subject to the limitations and obligations of the State with respect to Pre-existing Materials, the State may make all custom Deliverables available to the general public without any proprietary notices of any kind.

E. FORCE MAJEURE (EXCUSABLE DELAY). Neither party will be liable for any delay in its performance that arises from causes beyond its or its subcontractor’s control and without its or its subcontractor’s negligence or fault. For purposes of this section, the term “force majeure event” includes without limitation, the following: Acts of God, such as pestilence, lightning, earthquakes, fires, storms, hurricanes, tornadoes, floods, washouts, droughts, severe weather. Additional circumstances and events include epidemics, explosions, restraining of government and people, war, strikes, and other similar events or causes.

If the State or the Contractor…