3-Form North Carolina General Terms and Conditions 11 2023.pdf

North Carolina General Terms and Conditions Version Date: 11/2023

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NORTH CAROLINA GENERAL TERMS & CONDITIONS

1. PERFORMANCE:

a) It is an�cipated that the tasks and du�es undertaken by the Vendor under the contract which results from the State solicita�on in this mater (Contract) shall include Services, and/or the manufacturing, furnishing, or development of goods and other tangible features or components, as deliverables.

b) Except as provided herein, and unless otherwise mutually agreed in wri�ng prior to award, any deliverables not subject to an agreed Vendor license and provided by Vendor in performance of this Contract shall be and remain property of the State. During performance, Vendor may provide proprietary components as part of the deliverables that are iden�fied in this Contract. Vendor grants the State a personal, permanent, non-transferable license to use such proprietary components of the deliverables and other func�onali�es, as provided under this Contract. Any technical and business informa�on owned by Vendor or its suppliers or licensors made accessible or furnished to the State shall be and remain the property of the Vendor or such other party, respec�vely. Vendor agrees to perform under the Contract in at least the same or similar manner provided to comparable users and customers. The State shall no�fy the Vendor of any defects or deficiencies in performance or failure of deliverables to conform to the standards and specifica�ons provided in this Contract. Vendor agrees to �mely remedy defec�ve performance or any nonconforming deliverables on its own or upon such no�ce provided by the State.

c) Vendor has a limited, non-exclusive license to access and use State Data provided to Vendor, but solely for performing its obliga�ons under and during this Agreement and in confidence as further provided for herein or by law.

d) Vendor or its suppliers, as specified and agreed in the Contract, shall provide support assistance to the State related to all Services performed or other deliverables procured hereunder during the State’s normal business hours. Vendor warrants that its support, customer service, and assistance will be performed at a minimum in accordance with generally accepted and applicable industry standards.

e) The State may document and take into account in awarding or renewing future procurement contracts the general reputa�on, performance and performance capabili�es of the Vendor under this Contract as provided by G.S. 143-52 and 143-135.9 (a) and (b) (Best Value).

2. DEFAULT AND TERMINATION:

a) In the event of default by the Vendor, the State may, as provided by NC law, procure goods and services necessary to complete performance hereunder from other sources and hold the Vendor responsible for any excess cost occasioned thereby. See, G.S. 25-2-712. In addi�on, and in the event of default by the Vendor under the Contract, or upon the Vendor filing a pe��on for bankruptcy or the entering of a judgment of bankruptcy by or against the Vendor, the State may immediately cease doing business with the Vendor, terminate the Contract for cause, and take ac�on to recover relevant damages, and if permited by applicable law, debar the Vendor from doing future business with the State. 01 NCAC 05B.1520.

b) If, through any cause, Vendor shall fail to fulfill in a �mely and proper manner the obliga�ons under the Contract, including, without limita�on, in these North Carolina General Terms and Condi�ons, the State shall have the right to terminate the Contract by giving thirty days writen no�ce to the Vendor and

Page | 2 specifying the effec�ve date thereof. In that event, any or all finished or unfinished deliverables that are prepared by the Vendor under the Contract shall, at the op�on of the State, become the property of the State (and under any applicable Vendor license to the extent necessary for the State to use such property), and the Vendor shall be en�tled to receive just and equitable compensa�on for any acceptable deliverable completed (or par�ally completed at the State’s op�on) as to which such op�on is exercised. Notwithstanding, Vendor shall not be relieved of liability to the State for damages sustained by the State by virtue of any breach of the Contract, and the State may withhold any payment due the Vendor for the purpose of setoff un�l such �me as the exact amount of damages due the State from such breach can be determined. The State, if insecure as to receiving proper performance or provision of goods deliverables, or if documented Vendor Services performance issues exist, under this Contract, may require at any �me a performance bond or other alterna�ve performance guarantees from a Vendor without expense to the State as provided by applicable law. G.S. 143-52(a); 01 NCAC 05B.1521; G.S. 25-2-609.

c) If this Contract contemplates deliveries or performance over a period of �me, the State may terminate this Contract for convenience at any �me by providing 60 days’ no�ce in wri�ng from the State to the Vendor. In that event, any or all finished or unfinished deliverables prepared by the Vendor under this Contract shall, at the op�on of the State, become its property, and under any applicable Vendor license to the extent necessary for the State to use such property. If the Contract is terminated by the State for convenience, the State shall pay for those items or Services for which such op�on is exercised, less any payment or compensa�on previously made.

3. INTERPRETATION, CONFLICT OF TERMS:

a) The defini�ons in the Instruc�ons to Vendors in the relevant solicita�on for this Contract, and in 01 NCAC 05A.0112 are specifically incorporated herein.

b) If federal funds are involved in the transac�ons under this Contract, the Vendor shall comply with all applicable state and federal requirements and laws, except where State requirements are more restric�ve. See the addi�onal federal requirements included in the “Federal Funds Provisions” sec�on below.

c) “Purchasing Agency” herein is as defined in 01 NCAC 05A.0112, except that if this Contract has been entered into by the NC Department of Administra�on, Division of Purchase and Contract (P&C) as indicated in the Contract (e.g., a State Term Contract), then P&C will then be a Purchasing Agency for the purposes herein and in the Federal Funds Provisions, below.

d) Contracts made in contraven�on of General Statutes, Chapter 143, Ar�cle 3 and the Rules in 05 NCAC Chapter 5, are void. G.S. 143-58.

e) In cases of conflict between specific provisions in this Contract and any other referenced documents, the Order of Precedence shall be (high to low) (1) any special terms and condi�ons specific to this Contract, including any nego�ated terms; (2) requirements, specifica�ons and administra�ve terms; (3) these NORTH CAROLINA GENERAL TERMS AND CONDITIONS, including the Federal Funds Provisions;

(4) Defini�ons and other provisions in INSTRUCTIONS TO VENDORS in this solicita�on, which is specifically incorporated in this Contract; (5) PRICING, and (6) Vendor’s Bid, to the extent specifically and mutually incorporated into this Contract.

f) In the event of conflict of terms between applicable provisions of the Federal Funds Provisions and the other provisions of these North Carolina General Contract Terms and Condi�ons, the more restric�ve provision will govern.

4. GOVERNMENTAL RESTRICTIONS: In the event any Governmental restric�ons are imposed which necessitate altera�on of the goods, material, quality, workmanship, or performance of the Services offered, prior to acceptance, it shall be the responsibility of the Vendor to no�fy the State Contract Lead or Administrator indicated in the Contract at once, in wri�ng, indica�ng the specific regula�on which requires such altera�ons.

The State reserves the right to accept any such altera�ons, including any price adjustments occasioned thereby, or to cancel the Contract.

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5. AVAILABILITY OF FUNDS: Any and all payments to the Vendor shall be dependent upon and subject to the availability of funds appropriated or allocated to the agency for the purpose set forth in the Contract.

6. TAXES: Any applicable taxes shall be invoiced as a separate item.

a) G.S. 143-59.1 bars the Secretary of Administra�on from entering into Contracts with Vendors if the Vendor or its affiliates meet one of the condi�ons of G.S. 105-164.8(b) and refuses to collect use tax on sales of tangible personal property to purchasers in North Carolina. Condi�ons under G.S. 105-164.8(b) include: (1) Maintenance of a retail establishment or office, (2) Presence of representa�ves in the State that solicit sales or transact business on behalf of the Vendor and (3) Systema�c exploita�on of the market by media-assisted, media-facilitated, or media-solicited means. By execu�on of the proposal document the Vendor cer�fies that it and all of its affiliates, (if it has affiliates), collect(s) the appropriate taxes.

b) The agency(ies) par�cipa�ng in the Contract are exempt from Federal Taxes, such as excise and transporta�on. Exemp�on forms submited by the Vendor will be executed and returned by the using agency.

c) Prices offered are not to include any personal property taxes, nor any sales or use tax (or fees) unless required by the North Carolina Department of Revenue.

7. SITUS AND GOVERNING LAWS:

a) This Contract is made under and shall be governed by and construed in accordance with the laws of the State of North Carolina, including, without limita�on, the relevant provisions of G.S. Chapter 143, Ar�cle 3, and the Rules in 01 NCAC Chapter 05, and any applicable successor provisions, without regard to its conflict of laws rules, and within which State all maters, whether sounding in Contract, tort or otherwise, rela�ng to its validity, construc�on, interpreta�on and enforcement shall be determined.

G.S. 22B-3.

b) Vendor shall comply with all laws, ordinances, codes, rules, regula�ons, and licensing requirements that are applicable to the conduct of its business and its performance in accordance with the Contract, including those of federal, state, and local agencies having jurisdic�on and/or authority, and including, without limita�on, the applicable requirements in the Federal Funds Provisions, below.

c) Non-resident Vendor corpora�ons not formed under NC law must be domes�cated in the Office of the NC Secretary of State in order to contract with the State of North Carolina. G.S. 55A-15- 01.

8. NON-DISCRIMINATION COMPLIANCE:

Wholly State Funded Contracts.

a) The Vendor will take affirma�ve ac�on in complying with all State requirements and laws concerning fair employment and employment of people with disabili�es, and concerning the treatment of all employees without regard to discrimina�on by reason of race, color, religion, sex, na�onal origin or disability or rights, such as preserved by Governor Roy Cooper Order E.O. 24 or 25, and will take necessary ac�on to ensure that its internal employee policies and procedures are consistent with Execu�ve Order #82 (Roy Cooper, December 6, 2018), which extends workplace protec�ons and accommoda�ons to pregnant employees.

b) Federal Law, such as the following, applies as provided for therein: Titles VI and VII of the Civil Rights Act of 1964 (PL 88-352), and the regula�ons issued pursuant thereto (prohibi�ng discrimina�on on the basis race, color, na�onal origin and ensuring that individuals are employed, and that employees are treated during employment, without regard to their race, color, creed, na�onal origin, sex, or age); Title IX of the Educa�on Amendments of 1972 (codified as amended at 20 U.S.C. § 1681 et seq.) (prohibi�ng discrimina�on on the basis of sex); Titles I, II, III, IV, and V of the Americans with Disability Act of 1990 (prohibi�ng discrimina�on on the basis of disability); Sec�on 504 of the Rehabilita�on Act of 1973 (codified as amended at 29 U.S.C. §

794) (prohibi�ng discrimina�on on the basis of handicap); the Age Discrimina�on Act of 1975 (codified as amended at 42 U.S.C. § 6101 et seq.) (prohibi�ng age discrimina�on); Execu�ve Order 11063 as amended

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Contracts Partially or Wholly Federally Funded.

To the extent federal funding is involved in this procurement, in whole or in part, compliance with the following is required:

c) The Vendor shall comply with all Federal Funds Provisions requirements (below) and not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orienta�on, gender iden�ty, or na�onal origin. The Vendor will take affirma�ve ac�on to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orienta�on, gender iden�ty, or na�onal origin. Such ac�on shall include, but not be limited to the following:

Employment, upgrading, demo�on, or transfer; recruitment or recruitment adver�sing; layoff or termina�on; rates of pay or other forms of compensa�on; and selec�on for training, including appren�ceship. The Vendor agrees to post in conspicuous places, available to employees and applicants for employment, no�ces to be provided se�ng forth the provisions of this nondiscrimina�on clause.

d) The Vendor shall, in all solicita�ons or adver�sements for employees placed by or on behalf of the Vendor, state that all qualified applicants will receive considera�on for employment without regard to race, color, religion, sex, sexual orienta�on, gender iden�ty, or na�onal origin:

e) The Vendor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensa�on of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensa�on informa�on of other employees or applicants as a part of such employee's essen�al job func�ons discloses the compensa�on of such other employees or applicants to individuals who do not otherwise have access to such informa�on, unless such disclosure is in response to a formal complaint or charge, in furtherance of an inves�ga�on, proceeding, hearing, or ac�on, including an inves�ga�on conducted by the employer, or is consistent with the Vendor's legal duty to furnish informa�on.

f) The Vendor will send to each labor union or representa�ve of workers with which it has a collec�ve bargaining agreement or other contract or understanding, a no�ce to be provided advising the said labor union or workers' representa�ves of the Vendor's commitments under this sec�on, and shall post copies of the no�ce in conspicuous places available to employees and applicants for employment.

g) The Vendor shall comply with all provisions of Execu�ve Order 11246 of September 24, 1965, and of the rules, regula�ons, and relevant orders of the Secretary of Labor.

h) The Vendor shall furnish all informa�on and reports required by Execu�ve Order 11246 of September 24, 1965, and by rules, regula�ons, and orders of the Secretary of Labor, or pursuant thereto, and shall permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of inves�ga�on to ascertain compliance with such rules, regula�ons, and orders.

i) In the event of the Vendor's noncompliance with the nondiscrimina�on clauses of this Contract or with any of the said rules, regula�ons, or orders, this Contract may be canceled, terminated, or suspended in whole or in part and the Vendor may be declared ineligible for further Government contracts or federally assisted construc�on Contracts in accordance with procedures authorized in Execu�ve Order 11246 of September 24, 1965, and such other sanc�ons may be imposed and remedies invoked as provided in Execu�ve Order 11246 of September 24, 1965, or by rule, regula�on, or order of the Secretary of Labor, or as otherwise provided by law.

j) The Vendor shall include the por�on of the sentence immediately preceding paragraph (a) and the provisions of paragraphs (a) through (g) in every subcontract or purchase order unless exempted by rules, regula�ons, or orders of the Secretary of Labor issued pursuant to sec�on 204 of Execu�ve Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Vendor will take such ac�on with respect to any subcontract or purchase order as the administering agency may

Page | 5 direct as a means of enforcing such provisions, including sanc�ons for noncompliance: Provided, however, that in the event a Vendor (or herein “applicant,” as applicable in context within these Federal Funds Provisions) becomes involved in, or is threatened with, li�ga�on with a subcontractor or vendor as a result of such direc�on by the administering agency, the Vendor may request the United States to enter into such li�ga�on to protect the interests of the United States.

k) The Vendor further agrees that it shall be bound by the above equal opportunity clause with respect to its own employment prac�ces when it par�cipates in federally assisted construc�on work: Provided, that if the Vendor so par�cipa�ng is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not par�cipate in work on or under the Contract.

l) The Vendor agrees that it shall assist and cooperate ac�vely with the administering agency and the Secretary of Labor in obtaining the compliance of Vendors and subcontractors with the equal opportunity clause and the rules, regula�ons, and relevant orders of the Secretary of Labor, that it shall furnish the administering agency and the Secretary of Labor such informa�on as they may require for the supervision of such compliance, and that it shall otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.

m) The Vendor further agrees that it shall refrain from entering into any contract or contract modifica�on subject to Execu�ve Order 11246 of September 24, 1965, with a Vendor debarred from, or who has not demonstrated eligibility for, Government Contracts and federally assisted construc�on contracts pursuant to the Execu�ve Order and will carry out such sanc�ons and penal�es for viola�on of the equal opportunity clause as may be imposed upon Vendors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Execu�ve Order. In addi�on, the Vendor agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following ac�ons: Cancel, terminate, or suspend in whole or in part any relevant grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the Vendor under the program with respect to which the failure or refund occurred un�l sa�sfactory assurance of future compliance has been received from such Vendor; and refer the case to the Department of Jus�ce for appropriate legal proceedings.

9. PAYMENT TERMS: Payment terms are net not later than 30 days a�er receipt of a correct invoice or acceptance of goods, whichever is later. The Procuring Agency is responsible for all payments to the Vendor under the Contract. Payment by some agencies may be made by procurement card. If the Vendor accepts Visa, MasterCard, etc., from other customers, it shall accept procurement card payment by the State under the terms provided for the procurement card. 01 NCAC 05B.1523. If payment is made by procurement card, then payment for amounts then due may be processed immediately by the Vendor.

The State does not agree in advance, in contract, pursuant to Cons�tu�onal limita�ons, to pay costs such as interest, late fees, penal�es or atorney’s fees. This Contract will not be construed as an agreement by the State to pay such costs and will be paid only as ordered by a court of competent jurisdic�on.

10. CONDITION AND PACKAGING: Unless otherwise expressly provided by special terms and condi�ons or specifica�ons in the Contract or by express, specific federal law or rule, it is understood and agreed that any item offered or shipped has not been sold or used for any purpose, is newly manufactured, and shall be in first class condi�on. All containers/packaging shall be suitable for handling, storage or shipment.

11. INTELLECTUAL PROPERTY WARRANTY AND INDEMNITY: Vendor shall hold and save the State, its officers, agents and employees, harmless from liability of any kind, including costs and expenses, resul�ng from infringement of the rights of any third party in any Services or copyrighted material, patented or patent-pending inven�on, ar�cle, device or appliance delivered in connec�on with the Contract.

a) Vendor warrants to the best of its knowledge that:

1. Performance under the Contract does not infringe upon any intellectual property rights of any third party; and

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2. There are no actual or threatened ac�ons arising from, or alleged under, any intellectual property rights of any third party.

b) Should any deliverables supplied by Vendor become the subject of a claim of infringement of a patent, copyright, trademark or a trade secret in the United States, the Vendor, shall at its op�on and expense, either procure for the State the right to con�nue using the deliverables, or replace or modify the same to become non-infringing. If neither of these op�ons can reasonably be taken in Vendor’s judgment, or if further use shall be prevented by injunc�on, the Vendor agrees to cease provision of any affected deliverables and refund any sums the State has paid Vendor for such deliverables and make every reasonable effort to assist the State in procuring subs�tute deliverables. If, in the sole opinion of the State, the cessa�on of use by the State of any such deliverables due to infringement issues makes the reten�on of other items acquired from the Vendor under this Agreement imprac�cal, the State shall then have the op�on of termina�ng the Agreement, or applicable por�ons thereof, without penalty or termina�on charge; and Vendor agrees to refund any sums the State paid for unused Services or other deliverables.

c) The Vendor, at its own expense, shall defend any ac�on brought against the State to the extent that such ac�on is based upon a claim that the deliverables supplied by the Vendor, their use or opera�on, infringe on a patent, copyright, trademark or violate a trade secret in the United States. The Vendor shall pay those costs and damages finally awarded or agreed in a setlement against the State in any such ac�on. Such defense and payment shall be condi�oned on the following:

1. That the Vendor shall be no�fied within a reasonable �me in wri�ng by the State of any such claim; and

2. That the Vendor shall have the sole control of the defense of any ac�on on such claim and all nego�a�ons for its setlement or compromise provided, however, that the State shall have the op�on to par�cipate in such ac�on at its own expense.

d) Vendor will not be required to defend or indemnify the State to the extent any claim by a third party against the State for infringement or misappropria�on results solely from the State’s material altera�on of any Vendor-branded deliverables or Services, or from the con�nued use of the Services or other deliverables a�er receiving writen no�ce from the Vendor of the claimed infringement.

12. ADVERTISING: Vendor agrees not to use the existence of the Contract or the name of the State of North Carolina as part of any commercial adver�sing or marke�ng of products or Services except as provided in 01 NCAC 05B.1516. A Vendor may inquire whether the State is willing to be included on a lis�ng of its exis�ng customers.

13. ACCESS TO PERSONS AND RECORDS:

(a) During, and after the term hereof during the relevant period required for retention of records by State law (G.S. 121-5, 132-1 et seq., typically five years), the State Auditor and any Purchasing Agency’s internal auditors shall have access to persons and records related to the Contract to verify accounts and data affecting fees or performance under the Contract, as provided in G.S. 143-49(9). However, if any audit, litigation or other action arising out of or related in any way to this project is commenced before the end of such retention of records period, the records shall be retained for one (1) year after all issues arising out of the action are finally resolved or until the end of the record retentions period, whichever is later.

(b) The following entities may audit the records of this contract during and after the term of the contract to verify accounts and data affecting fees or performance:

1. The State Auditor.

2. The internal auditors of the affected department, agency or institution.

3. The Joint Legislative Commission on Governmental Operations and legislative employees whose primary responsibility is to provide professional or administrative services to the Commission.

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(c) The Joint Legislative Commission on Governmental Operations has the authority to:

1. Study the efficiency, economy and effectiveness of any non-State entity receiving public funds.

2. Evaluate the implementation of public policies, as articulated by enacted law, administrative rule, executive order, policy, or local ordinance, by any non-State entity receiving public funds.

3. Investigate possible instances of misfeasance, malfeasance, nonfeasance, mismanagement, waste, abuse, or illegal conduct by officers and employees of a non-State entity receiving, directly or indirectly, public funds, as it relates to the officer’s or employee’s responsibilities regarding the receipt of public funds.

4. Receive reports as required by law or as requested by the Commission.

5. Access and review

a. Any documents or records related to any contract awarded by a State agency, including the documents and records of the contractor, that the Commission determines will assist in verifying accounts or will contain data affecting fees or performance; and

b. Any records related to any subcontract of a contract awarded by a State agency that is utilized to fulfill the contract, including, but not limited to (i) records related to the drafting and approval of the subcontract, and (ii) documents and records of the contractor or subcontractor that the Commission determines will assist in verifying accounts or will contain data affecting fees or performance.

(d) The Joint Legislative Commission on Governmental Operations has the power to:

1. Compel access to any document or system of records held by a non-State entity receiving, directly or indirectly, public funds, to the extent the documents relate to the receipt, purpose or implementation of a program or service paid for with public funds.

2. Compel attendance of any officer or employee of any non-State entity receiving public funds, provided the officer or employee is responsible for implementing a program or providing a service paid for with public funds.

(e) Unless prohibited by federal law, the Commission and Commission staff in the discharge of their duties under this Article shall be provided access to any building or facility owned or leased by a non-State entity receiving public funds provided (i) the building or facility is used to implement a program or provide a service paid for with public funds and (ii) the access is reasonably related to the receipt, purpose, or implementation of a program or service paid for with public funds.

(f) Any confidential information obtained by the Commission shall remain confidential and is not a public record as defined in G.S. 132-1.

(g) Any document or information obtained or produced by Commission staff in furtherance of staff’s duties to the Commission is confidential and is not a public record as defined in G.S. 132-1.

(h) A person who conceals, falsifies, or refuses to provide to the Commission any document, information, or access to any building or facility as required by this Article with the intent to mislead, impede, or interfere with the Commission's discharge of its duties under this Article shall be guilty of a Class 2 misdemeanor.

14. ASSIGNMENT OR DELEGATION OF DUTIES:

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a) As a convenience to the Vendor, the State may include any person or en�ty designated by the Vendor in wri�ng as a joint payee on the Vendor’s payment check. In no event shall such approval and ac�on obligate the State to anyone other than the Vendor.

b) If Vendor requests any assignment, or delega�on of du�es, the Vendor shall remain responsible for fulfillment of all Contract obliga�ons. Upon writen request, the State may, in its unfetered discre�on, approve an assignment or delega�on to another responsible en�ty acceptable to the State, such as the surviving en�ty of a merger, acquisi�on or a corporate reorganiza�on if made as part of the transfer of all or substan�ally all of the Vendor’s assets. 01 NCAC 05B.1507. Any purported assignment or delega�on made in viola�on of this provision shall be void and a material breach of the Contract. G.S.

143-58.

15. INSURANCE: This sec�on provides minimum insurance coverage rates that are applicable to most moderate risk solicita�ons. Agency Risk Analysis will determine if higher insurance coverage amounts are needed based on the likelihood and severity of exposure to the State. The analysis is documented in wri�ng in the official file and considers the following non-exclusive factors:

1. Poten�al for damage to State property or property of a third party,

2. Poten�al for bodily injury to State employees or third par�es,

3. Whether Vendor will transport State property, clients, or employees,

4. Use of a vehicle to accomplish the work or to travel to or from State loca�ons,

5. An�cipated physical contacts of the Vendor with the State,

6. An�cipated number and ac�vity of Vendor personnel within the State, and

7. Any other unique considera�ons that could result in harm, bodily injury, or property damage.

The Purchasing Agency has specified elsewhere in this Contract any increase in the minimum insurance coverage requirements below if the risk from the above factors is high.

a) REQUIREMENTS - Providing and maintaining adequate insurance coverage is a material obliga�on of the Vendor and is of the essence of the Contract. All such insurance shall meet all laws of the State of North Carolina. Such insurance coverage shall be obtained from companies that are authorized to provide such coverage and that are authorized by the NC Commissioner of Insurance to do business in North Carolina.

The Vendor shall at all �mes comply with the terms of such insurance policies, and all requirements of the insurer under any such insurance policies, except as they may conflict with exis�ng North Carolina laws or the Contract. The limits of coverage under each insurance policy maintained by the Vendor shall not be interpreted as limi�ng the Vendor’s liability and obliga�ons or the indemnifica�on requirements under the Contract. As provided above, a State agency is authorized, upon writen evalua�on and substan�a�on in the official file of the significant risk of bodily injury and/or property or other damage in the contract, to require and enforce higher coverage limits to mi�gate the poten�al risk of liability to the State.

b) COVERAGE - During the term of the Contract, the Vendor at its sole cost and expense shall provide commercial insurance of such type and with such terms and limits as may be reasonably associated with the Contract. At a minimum, the Vendor shall provide and maintain the following coverage and limits, subject to higher requirements by an agency a�er the risk analysis indicated above:

1. For Small Purchases as defined under North Carolina Administra�ve Code 01 NCAC 05A.0112 (35) and 05B.0301 (1), the minimum applicable insurance requirements for Worker’s Compensa�on and Automobile Liability will apply as required by North Carolina law. The Purchasing Agency may require Commercial General Liability coverage consistent with the assessed risks involved in the procurement.

2. For Contracts valued in excess of the Small Purchase threshold, but up to $1,000,000.00 the following limits shall apply:

i. Worker’s Compensa�on - The Vendor shall provide and maintain Worker’s Compensa�on Insurance, as may be required by the laws of North Carolina, as well as employer’s liability coverage, with minimum limits of $250,000.00, covering all of Vendor’s employees who are engaged in any work under the Contract in North Carolina. If any work is sub-Contracted, the

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Vendor shall require the sub-contractor to provide the same coverage for any of its employees engaged in any work under the Contract within the State.

ii. Commercial General Liability - General Liability Coverage on a Comprehensive Broad Form on an occurrence basis in the minimum amount of $500,000.00 Combined Single Limit. Defense costs shall be in excess of the limit of liability.

iii. Automobile - Automobile Liability Insurance, to include liability coverage covering all owned, hired and non-owned vehicles, used within North Carolina in connec�on with the Contract.

The minimum combined single limit shall be $250,000.00 bodily injury and property damage;

$250,000.00 uninsured/under insured motorist; and $2,500.00 medical payment.

3. For Contracts valued in excess of $1,000,000.00 the following limits shall apply:

i. Worker’s Compensa�on - The Vendor shall provide and maintain Worker’s Compensa�on Insurance, as may be required by the laws of North Carolina, as well as employer’s liability coverage, with minimum limits of $500,000.00, covering all of Vendor’s employees who are engaged in any work under the Contract in North Carolina. If any work is sub-Contracted, the Vendor shall require the sub-contractor to provide the same coverage for any of its employees engaged in any work under the Contract within the State.

ii. Commercial General Liability - General Liability Coverage on a Comprehensive Broad Form on an occurrence basis in the minimum amount of $1,000,000.00 Combined Single Limit. Defense costs shall be in excess of the limit of liability.

iii. Automobile - Automobile Liability Insurance, to include liability coverage covering all owned, hired and non-owned vehicles, used within North Carolina in connec�on with the Contract.

The minimum combined single limit shall be $500,000.00 bodily injury and property damage;

$500,000.00 uninsured/under insured motorist; and $5,000.00 medical payment.

16. GENERAL INDEMNITY:

a) The Vendor shall indemnify, defend and hold and save the State, its officers, agents, and employees, harmless from liability of any kind, including all claims and losses accruing or resul�ng to any other person, firm, or corpora�on furnishing or supplying work, Services, materials, or supplies in connec�on with the performance of the Contract, and also from any and all claims and losses accruing or resul�ng to any person, firm, or corpora�on that may be injured or damaged by the Vendor in the performance of the Contract that are atributable to the negligence or inten�onally tor�ous acts of the Vendor, provided that the Vendor is no�fied in wri�ng within 30 days from the date that the State has knowledge of such claims.

b) The Vendor, at its own expense shall defend any ac�on brought against the State, under this sec�on.

The Vendor shall have the sole control of the defense of any ac�on on such claim and all nego�a�ons for its setlement or compromise, provided, however, that the State shall have the op�on to par�cipate in such ac�on at its own expense.

c) The Vendor represents and warrants that it shall make no claim of any kind or nature against the State’s agents who are involved in the delivery or processing of Vendor deliverables or Services as part of this Contract with the State.

d) As part of this provision for General indemnity, if federal funds are involved in this procurement, the Vendor warrants that it will comply with all relevant and applicable federal requirements and laws, and will indemnify, defend and hold and save the State harmless from any claims or losses resul�ng to the State from the Vendor’s noncompliance with such federal requirements or law in the performance of this Contract. The representa�ons and warran�es in the preceding two sentences shall survive the termina�on or expira�on of the Contract.

e) The State does not par�cipate in indemnifica�on due to Cons�tu�onal restric�ons, or arbitra�on, which effec�vely and unacceptably waives jury trial. See, G.S. 22B-3, -10.

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17. ELECTRONIC PROCUREMENT: (G.S. 143-48.3)

GENERALLY APPLICABLE TO GOODS AND SERVICES PURCHASES:

a) Purchasing shall be conducted through the Statewide E-Procurement Service. The State’s third-party agent shall serve as the Supplier Manager for this E-Procurement Service. The Vendor shall register for the Statewide E-Procurement Service within two (2) business days of no�fica�on of award in order to receive an electronic purchase order resul�ng from award of this Contract.

b) The Supplier Manager will capture an order from a State approved user, including the shipping and payment informa�on, and submit the order in accordance with E-Procurement Service procedures.

Subsequently, the Supplier Manager will send those orders to the appropriate Vendor on State Contract.

The State or State-approved user, not the Supplier Manager, shall be responsible for the solicita�on, bids received, evalua�on of bids received, award of Contract, and the payment for goods delivered.

c) Vendor shall at all �mes maintain the confiden�ality of its username and password for the Statewide E- Procurement Services. Vendor shall be responsible for all ac�vity and all charges by its agents or employees. Vendor agrees not to permit a third party to use its E-Procurement Services account. If there is a breach of security through the Vendor’s account, Vendor shall immediately change its password and no�fy the Supplier Manager of the security breach by email. Vendor shall cooperate with the State and the Supplier Manager to mi�gate and correct any security breach.

E-PROCUREMENT FEES – APPLICABLE ONLY TO GOODS PURCHASES

d) THE SUCCESSFUL BIDDER(S) SHALL PAY A TRANSACTION FEE, CURRENTLY 1.75% (.0175), ON THE

TOTAL DOLLAR AMOUNT (EXCLUDING SALES TAXES) FOR THE AMOUNT OF ANY GOODS INCLUDED

ON EACH PURCHASE ORDER ISSUED THROUGH THE STATEWIDE E-PROCUREMENT SERVICE (OR ANY

OFFICIAL REPLACEMENT

SERVICE). G.S. 66-58.12; See, NC E-Procurement Terms of Use. This applies to all purchase orders, regardless of the quan�ty or dollar amount of the purchase order. The transac�on fee shall not be stated or included as a separate item on the invoice. Vendor will receive a credit for transac�on fees they paid for the purchase of any item(s) if an item(s) is returned through no fault of the Vendor.

Transac�on fees are non-refundable when an item is rejected and returned, or declined, due to the Vendor’s failure to perform or comply with specifica�ons or requirements of the Contract.

e) Vendor or its Authorized Reseller, as applicable, will be invoiced monthly for the State’s transac�on fee by the E-Procurement Supplier Manager (Supplier Manager), based on a) purchase ac�vity for the prior month, or b) purchases for which the supplier invoice has been paid. Unless the Supplier Manager receives writen no�ce from the Vendor iden�fying with specificity any errors in an invoice for the transac�on fee within thirty (30) days of the receipt of invoice, such invoice shall be deemed to be correct and Vendor shall have waived its right to later dispute the accuracy and completeness of the invoice. Payment of the transac�on fee by the Vendor is due to the account designated by the State within thirty (30) days a�er receipt of the invoice for the transac�on fee, or it shall be considered a material breach of Contract.

Pursuant to G.S. 147-86.23, the service will charge 1) interest on past due balances at the rate set by the Secretary of Revenue pursuant to G.S. 105-241.21 as of the date the balances are past due, and, 2) late payment penal�es, currently ten percent (10%) of the account receivable. No interest shall be charged on disputed and overdue amounts to the extent the State agrees to reduce or adjust the amount in dispute. The Supplier Manager shall provide, whenever reasonably requested by the Vendor in wri�ng (including electronic documents), suppor�ng documenta�on from the E-Procurement Service that accounts for the amount of the invoice.

18. SUBCONTRACTING: Performance under the Contract by the Vendor shall not be subcontracted without prior writen approval of the State’s assigned Contract Lead. Unless otherwise agreed in wri�ng, acceptance of a Vendor’s proposal shall include approval to use the subcontractor(s) that have been specified therein.

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19. CONFIDENTIALITY: Vendor informa�on that cannot be shown to be, e.g., a trade secret, may be subject to public disclosure under the terms of the State Public Records Act (SPRA), beginning at G.S. 132.1. Blanket asser�ons of confiden�ality are not favored, but confiden�ality of specific material mee�ng one or more excep�ons in the SPRA will be honored. Vendors are no�fied that if the confiden�ality of material is challenged by other par�es, the Vendor has the responsibility of defending the asser�on of confiden�ality. G.S. 143-52(a).

20. CARE OF STATE DATA AND PROPERTY: Any State property, informa�on, data, instruments, documents, studies or reports given to or prepared or assembled by or provided to the Vendor under the Contract shall be kept as confiden�al, used only for the purpose(s) required to perform the Contract and not divulged or made available to any individual or organiza�on without the prior writen approval of the State.

The State’s data and property in the hands of the Vendor shall be protected from unauthorized disclosure, loss, damage, destruc�on by a natural event or another eventuality. The Vendor agrees to reimburse the State for loss or damage of State property while in Vendor’s custody. Such State Data shall be returned to the State in a form acceptable to the State upon the termina�on or expira�on of this Agreement.

The Vendor shall no�fy the State of any security breaches within 24 hours as required by G.S. 143B1379. For further informa�on, see, G.S. 75-60 et seq. No�ce is given to the Vendor that the NC Department of Informa�on Technology (DIT) has requirements rela�ng to the security of the State network, and rules rela�ng to the use of the State network, IT so�ware and equipment, that the Vendor must comply with, as applicable. See, e.g., G.S.

143B-1376.

21. OUTSOURCING: Any Vendor or subcontractor providing call or contact center services to the State of North Carolina or any of its agencies shall disclose to inbound callers the loca�on from which the call or contact center services are being provided.

If, a�er award of a Contract, and consistent with any applicable NC DIT security provisions, the Contractor wishes to relocate or outsource any por�on of performance to a loca�on outside the United States, or to contract with a subcontractor for any such performance, which subcontractor and nature of the work has not previously been disclosed to the State in wri�ng, prior writen approval must be obtained from the State Purchasing Agency.

Vendor shall give no�ce to the Purchasing Agency of any reloca�on of the Vendor, employees of the Vendor, subcontractors of the Vendor, or other persons providing performance under a State Contract to a loca�on outside of the United States. See, G.S. 14359.4.

22. ENTIRE AGREEMENT: The Contract (including any documents mutually incorporated specifically therein) resul�ng from a relevant solicita�on represents the en�re agreement between the par�es and supersedes all prior oral or writen statements or agreements. All promises, requirements, terms, condi�ons, provisions, representa�ons, guarantees, and warran�es contained herein shall survive the Contract expira�on or termina�on date unless specifically provided otherwise herein, or unless superseded by applicable Federal or State statutes of limita�on.

23. ELECTRONIC RECORDS: The State will digi�ze all Vendor responses to the relevant solicita�on, if not received electronically, as well as any awarded Contract together with associated procurementrelated documents. These electronic copies shall cons�tute a preserva�on record and shall serve as the official record of this procurement with the same force and effect as the original writen documents comprising such record. Any official electronic copy, printout or other output readable by sight shown to reflect such record accurately shall cons�tute an "original."

24. AMENDMENTS: This Contract may be amended only by a writen amendment duly executed by the State and the Vendor.

25. NO WAIVER: Notwithstanding any other language or provision in the Contract or in any Vendorsupplied material, nothing herein is intended nor shall be interpreted as a waiver of any right or remedy otherwise available to the State under applicable law. The waiver by the State of any right or remedy on any one occasion or instance shall not cons�tute or be interpreted as a waiver of that or any other right or remedy on any other occasion or instance.

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26. FORCE MAJEURE: Neither party shall be deemed to be in default of its obliga�ons hereunder if and so long as it is prevented from performing such obliga�ons as a result of events beyond its reasonable control, including, without limita�on, fire, power failures, any act of war, hos�le foreign ac�on, nuclear explosion, riot, strikes or failures or refusals to perform under subcontracts, civil insurrec�on, earthquake, hurricane, tornado, other catastrophic epidemic or pandemic, natural event or Act of God.

27. SOVEREIGN IMMUNITY: Notwithstanding any other term or provision in the Contract, nothing herein is intended nor shall be interpreted as waiving any claim or defense based on the principle of sovereign immunity or other State or federal cons�tu�onal provision or principle that otherwise would be available to the State under applicable law.

28. FEDERAL FUNDS PROVISIONS:

Where federal funds are utilized in connection with this procurement, and to the extent applicable and absent stricter or controlling State provisions, the following federal provisions (in addi�on to the North Carolina General Terms and Condi�ons above) may apply consistent with Uniform Guidance in 2 C.F.R. § 200.326 and 2 C.F.R. Part 200, and its Appendix II. Relevant federal authori�es may require addi�onal provisions depending on the scope and context of the Contract. Failure or unwillingness of the Vendor to con�nually meet any of these requirements, as applicable, may result in Contract termina�on.

Any links to websites not maintained by the State are provided as a courtesy. The State does not warrant or guarantee the accuracy of the hyperlink or the informa�on contained therein.

a) No governmental non-competes. Vendor shall not impose or enforce any non-compe��on agreement upon the employees included in Vendor’s bid that would prevent those employees from accep�ng any offer of employment from the State of North Carolina outside of the first Term of the Contract. By execu�ng this Contract, the Vendor affirms this condi�on. This affirma�on is a material condi�on for the State’s award of any work under this Contract.

b) Program Monitoring. Vendor agrees to assist and cooperate with the Federal grantor or funding agency and the relevant Purchasing Agency or their duly designated representa�ves in the monitoring of the project or projects to which this Contract relates, and to provide in form and manner approved by the Purchasing Agency such monitoring reports, progress reports, and the like as may be required and to provide such reports at the �mes specified.

c) Remedies and Termina�on. For purposes of this sec�on the State Remedies and Termina�on provisions above apply as writen.

d) Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708).

Compliance with the Contract Work Hours and Safety Standards Act.

1. Overtime requirements. No Vendor or subcontractor contrac�ng for any part of the Contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensa�on at a rate not less than one and one-half �mes the basic rate of pay for all hours worked in excess of forty hours in such workweek.

2. Violation; liability for unpaid wages; liquidated damages. In the event of any viola�on of the clause set forth in 29 C.F.R. §5.5(b)(1) the Vendor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addi�on, such Vendor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in viola�on of the clause set forth in 29 C.F.R. §5.5(b)(1), in the sum of $26 for each calendar day on which such individual was required or permited to work in excess of the standard workweek of forty hours without payment of the over�me wages required by the clause set forth in 29 C.F.R. §5.5(b)(1).

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3. Withholding for unpaid wages and liquidated damages. The Purchasing Agency shall upon its own ac�on or upon writen request of an authorized representa�ve of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Vendor or subcontractor under any such…