Board+Management+Software+Contract+001Executed.pdf

BOARD MANAGEMENT SOFTWARE - TECHNOLOGY CONTRACT - 001

1. PARTIES

The parties to this contract (Contract) are the state of North Dakota, acting through its Office of Management and Budget (STATE), and Pervasent Software Inc., a California C Corporation, having its principal place of business at 55 Santa Clara Avenue, Suite 180, Oakland CA 94610

(CONTRACTOR).

2. DEFINITIONS

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

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

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

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

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

3. SCOPE OF WORK

CONTRACTOR, in exchange for the compensation paid by STATE under this Contract, shall provide a license to access and use, during the term of this Contract and solely for STATE’s internal business purposes, the Board Management Software, a SaaS product and the documents listed in the Merger and Modification, Conflict in Documents Section of this Contract. CONTRACTOR and each Participating Entity shall complete Exhibit A – Participating Addendum.

For clarity, CONTRACTOR has all rights, title and interest in and to the SaaS software, all components thereof, all content which CONTRACTOR makes available to STATE for downloading and all intellectual and industrial property rights embodied therein or pertaining thereto, including, without limitation, copyrights, patent rights, trademarks and trade names, and trade secrets, (ii) any configuration or deployment of the SaaS software shall not affect or diminish CONTRACTOR’s rights, title, and interest in and to the SaaS software, and (iii) STATE shall not limit CONTRACTOR in any way from developing, using, licensing, distributing, modifying, or other-wise freely exploiting the SaaS software, any other materials provided by CONTRACTOR, or any modifications, enhancements, improvements or derivative works thereof, or from permitting third par-ties from so doing; provided, that, except as expressly set forth herein, CONTRACTOR shall not use any STATE Data for any purpose other than providing the SaaS software to STATE and Users.

4. COMPENSATION-PAYMENTS

a. Contractual Amount

STATE shall pay for the accepted Subscription Services provided by CONTRACTOR according to Exhibit B – Compensation details.

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

b. Invoicing The final cost set forth on each invoice shall be equivalent to the cost for each deliverable or service as specified in the Scope of Work. CONTRACTOR shall not submit an invoice for any deliverable or service specified in the Scope of Work that STATE has not fully accepted.

c. Payment Payment made in accordance with this Compensation section shall constitute payment in full for the Subscription Services and work performed and the deliverables provided under this Contract and CONTRACTOR shall not receive any additional compensation hereunder.

STATE shall make payment under this Contract within forty-five (45) calendar days after receipt of an approved invoice.

Payment of an invoice by STATE will not prejudice STATE’s right to object to or question that or any other invoice or matter in relation thereto. CONTRACTOR's invoice will be subject to reduction for amounts included in any invoice or payment made which are determined by STATE not to constitute allowable costs, on the basis of audits conducted in accordance with the terms of this Contract. At STATE’s sole discretion, all payments shall be subject to reduction for amounts equal to prior overpayments to CONTRACTOR.

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

d. Travel CONTRACTOR acknowledges travel expenses are covered by the Contractual Amount and shall not invoice STATE for travel expenses.

e. Prepayment STATE will not make any advance payments before performance or delivery by CONTRACTOR under this Contract.

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

CONTRACTOR.

g. Taxpayer ID CONTRACTOR’s federal employer ID number is: 46-1673568

h. Purchasing Card STATE may make payment using a government credit card. CONTRACTOR will accept a government credit card without passing the processing fees for the government credit card back to STATE.

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

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

a. On site means anywhere in North Dakota

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

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

CONTRACTOR.

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

6. TERM OF CONTRACT

This Contract term (Term or Initial Term) begins on its Effective Date and ends on March 1st 2025.

a. No Automatic Renewal

This Contract will not automatically renew.

b. Renewal Option

STATE may renew this Contract upon satisfactory completion of the Initial Term. STATE reserves the right to execute up to 3 options to renew this Contract under the same terms and conditions for a period of 12 months each (Renewal Term).

c. Extension Option STATE reserves the right to extend this Contract for an additional period, not to exceed 12 months, beyond the current termination date of this Contract.

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

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

7. TERMINATION

a. Termination by Mutual Agreement

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

b. Early Termination in the Public Interest

STATE is entering this Contract for the purpose of carrying out the public policy of the State of North Dakota, as determined by its Governor, Legislative Assembly, Agencies, and Courts. If this Contract ceases to further the public policy of the State of North Dakota, STATE, in its sole discretion, by written notice to CONTRACTOR, may terminate this Contract in whole or in part.

c. Termination for Lack of Funding or Authority STATE, by written notice to CONTRACTOR, may terminate the whole or any part of this Contract under any of the following conditions:

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

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

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

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

d. Termination for Cause.

STATE may terminate this Contract effective upon delivery of written notice to CONTRACTOR, or any later date stated in the notice:

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

2) If CONTRACTOR fails to perform any of the other provisions of this Contract, or so fails to pursue the work as to endanger performance of this Contract in accordance with its terms.

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

8. SUSPENSION FOR CONVENIENCE

STATE shall have the right at any time to order the Subscription Services fully or partially stopped for STATE’s own convenience. STATE shall provide CONTRACTOR written notice of the reason for and duration of the suspension. CONTRACTOR shall have the right to submit claims in accordance with the terms of this Contract as a result of suspensions issued under this section.

9. FORCE MAJEURE

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

10. INJUNCTIVE RELIEF

CONTRACTOR shall immediately report to STATE any and all unauthorized disclosures or uses of STATE’s confidential information or proprietary information of which CONTRACTOR or its staff is aware or has knowledge. CONTRACTOR acknowledges that any unauthorized publication or disclosure of STATE’s confidential information or proprietary information to others may cause immediate and irreparable harm to STATE. If CONTRACTOR should publish or disclose such confidential information or proprietary information without authorization, STATE shall immediately be entitled to seek injunctive relief or any other remedies to which it is entitled under law or equity without requiring a cure period.

11. RIGHT OF SETOFF DAMAGES

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

12. RIGHT TO REMEDIES AND CUMULATION OF RIGHTS

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

13. NON-WAIVER

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

14. INDEMNIFICATION

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

15. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION

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

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

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

STATE.

16. REPRESENTATIONS AND WARRANTIES

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

17. INSURANCE

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

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

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

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

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

a. Any deductible or self-insured retention amount or other similar obligation under the policies shall be the sole responsibility of the CONTRACTOR.

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

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

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

CONTRACTOR.

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

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

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

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

18. CYBER LIABILITY AND SECURITY INSURANCE

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

19. WORK PRODUCT

All work product, equipment or materials created for STATE or purchased by STATE under this Contract belong to STATE and must be immediately delivered to STATE at STATE's request upon termination of this Contract.

20. TECHNOLOGY STANDARDS

CONTRACTOR shall comply with applicable STATE enterprise architecture technology standards.

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

21. PERSONNEL

a. STATE will designate a Project Manager to serve as the primary project manager for this

Contract. If, during the course of this Contract, it becomes necessary for STATE to change the person assigned as STATE’s Project Manager, STATE will notify CONTRACTOR in writing, pursuant to Notice section of this Contract.

b. Unless STATE otherwise notifies CONTRACTOR, STATE’s Project Manager shall carry out STATE’s administrative and management functions under this Contract, shall be responsible for acceptance of the Contract deliverables, and shall provide support and overall direction to

CONTRACTOR.

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

d. CONTRACTOR agrees and understands that STATE’s execution of this Contract is predicated, in part and among other considerations, on the utilization of the specific individuals and personnel qualifications as identified; primary being Stuart Williams. Therefore, CONTRACTOR agrees that:

1) Prior to assignment of personnel, CONTRACTOR shall obtain written approval from STATE for all personnel to be assigned to this project

2) The personnel assigned must have the knowledge necessary to complete requirements as defined in this Contract.

3) CONTRACTOR shall warrant that all personnel assigned to perform tasks in response to this Contract will remain assigned for the agreed-upon length of time.

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

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

e. Upon request by STATE, CONTRACTOR shall replace any CONTRACTOR personnel that STATE determines, in its reasonable discretion, to be unable to perform the responsibilities of this Contract acceptably, e.g., inappropriate or unprofessional personal conduct, professional inabilities, etc.

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

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

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

i. CONTRACTOR shall conduct background investigations on all contracted staff and subcontractors assigned by CONTRACTOR to perform work under this Contract and shall furnish the results of such background investigations to STATE, unless prohibited by law.

STATE shall have the right to reject any individual assigned to perform work under this Contract if, in its sole discretion, it determines that the results of the background investigation make the individual unacceptable. The background investigations to be performed are:

1) Criminal and civil matters

2) References

22. PROJECT MANAGEMENT

a. Reporting

CONTRACTOR’s Project Manager shall deliver to STATE’s Project Manager/Point of Contact, every other week reports of CONTRACTOR’s progress on the project and meeting the objective/deliverables as stated in the Scope of Work for each Participating Addendum, unless otherwise agreed between CONTRACTOR and Participating Entity. Each report must contain a description of the current status of the project, the tasks on which time was spent, the estimated progress to be made in the next reporting period, and the problems encountered the proposed solutions to them and their effect, if any, on the project budget/schedule.

b. Integrated Change Control Process CONTRACTOR and STATE will utilize an integrated change control process to manage changes during the life of a project.

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

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

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

4) CONTRACTOR will continue performing in accordance with the original Contract unless otherwise agreed upon by STATE’s project manager. Work shall not commence on any new activities related to the change request until all Parties agree in writing.

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

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

7) During the course of this Contract, if CONTRACTOR determines or could reasonably determine any STATE actions or directions constitute a requirement to perform additional work, CONTRACTOR shall notify STATE within thirty (30) calendar days that STATE has requested CONTRACTOR to perform additional work in the form of a change request utilizing the process above. CONTRACTOR understands that it waives the right to request additional time and reimbursable costs if CONTRACTOR fails to notify STATE within thirty

(30) calendar days of determining or reasonably being able to determine that any STATE actions or directions constitute a requirement to perform additional work under this Contract.

c. Deliverable Acceptance

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

2) After receipt of items in Paragraph 22(c)(1), STATE will have five (5) working days or a different period of time as is agreed to by the Parties, in which to accept or reject each item in writing. STATE will accept by signature. If STATE rejects it, STATE will specify in writing its grounds for rejection and CONTRACTOR shall use its best efforts to revise any issues for the deliverables to be acceptable to STATE within the following five (5) working days. If STATE rejects it a second time, STATE will have the option of repeating the procedure as described in this acceptance statement above, escalating the issue to Agency Head, or terminating this Contract upon written notice to CONTRACTOR.

d. Final Acceptance

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

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

3) STATE has ten (10) calendar days thereafter in which to accept or reject it in writing. If STATE rejects it, STATE shall specify in writing its grounds for rejection and CONTRACTOR shall use its best efforts to make the product conform to the requirements of this Contract as soon as possible and at no additional cost to STATE. CONTRACTOR shall continue to use its best efforts to make the product conform to the requirements of this Contract until STATE accepts the product or terminates this Contract upon written notice to CONTRACTOR.

23. WARRANTY

CONTRACTOR shall provide a 60-day warranty upon Final Acceptance.

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

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

CONTRACTOR shall provide Subscription Services, including software/hardware updates and technical support services for the Subscription Services pursuant to this Contract commencing at the end of the warranty period. CONTRACTOR and STATE shall negotiate the terms and price of such services

a. Subscription Services:

Access to and use of Board Management Software to assemble and distribute electronic board and meeting books to board members and meeting participants, with maintenance and support per SaaS Agreement between the Contractor and STATE.

The service is based on the total number of licensed users.

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

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

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

b. Subscription Period The subscription period begins with a prorated period on [Month, Day], 20[Year], and continues on an annual basis for 5 years.

c. Purchase of Additional Users

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

d. Subscription Fee Cap CONTRACTOR agrees that any change to the annual Services fee may increase by not more than the lower of 5% or Consumer Price Index (CPI). The rates shall be adjusted in accordance with the index titled “All Urban Consumers (CPI-U). for the U.S. City Average. All Items 1982- 84=100”, prepared by the U.S. Bureau of Labor Statistics.

e. Right to Modify or Cancel Services STATE may choose to cancel Subscription Services at this Contract’s next renewal date upon thirty (30) calendar days’ notice to CONTRACTOR.

25. SAAS AND DATA SECURITY

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

26. DATA PROCESSING AND LOCATION:

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

States.

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

27. SOFTWARE AUDIT

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

28. NOTICE

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

STATE CONTRACTOR

Name Sowmya Karumanchi Name Stuart Williams Title IT Procurement Officer Title CEO Address 601 E Boulevard Ave Address 55 Santa Clara Avenue, Suite 180 City, State, Zip Bismarck ND 58505 Oakland, CA 94610 Email skarumanchi@nd.gov stuartw@pervasent.com

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

29. CONFIDENTIALITY

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

30. COMPLIANCE WITH PUBLIC RECORDS LAWS

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

Public records may include: (a) records STATE receives from CONTRACTOR under this Contract,

(b) records obtained by either Party under this Contract, and (c) records generated by either Party under this Contract.

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

31. INDEPENDENT ENTITY

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

32. ASSIGNMENT AND SUBCONTRACTS

CONTRACTOR may not assign or otherwise transfer or delegate any right or duty without STATE’s express written consent, provided, however, that CONTRACTOR may assign its rights and obligations under this Contract in the event of a change of control or sale of all or substantially all of its assets related to this Contract, whether by merger, reorganization, operation of law, or otherwise.

Should Assignee be a business or entity with whom STATE is prohibited from conducting business, STATE shall have the right to terminate in accordance with the Termination for Cause section of this Contract.

CONTRACTOR may enter subcontracts provided that any subcontract acknowledges the binding nature of this Contract and incorporates this Contract, including any attachments. CONTRACTOR is solely responsible for the performance of any subcontractor with whom CONTRACTOR contracts.

CONTRACTOR does not have authority to contract for or incur obligations on behalf of STATE.

33. SPOLIATION – NOTICE OF POTENTIAL CLAIMS

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

34. MERGER AND MODIFICATION, CONFLICT IN DOCUMENTS

This Contract, including the following documents, constitutes the entire agreement between the Parties. There are no understandings, agreements, or representations, oral or written, not specified within this Contract. This Contract may not be modified, supplemented, or amended, in any manner, except by written agreement signed by both Parties.

Notwithstanding anything herein to the contrary, in the event of any inconsistency or conflict among the documents making up this Contract, the documents must control in this order of precedence:

a. Any executed Participating Addendum;

b. The terms of this Contract as may be amended;

c. STATE’s Request for Best and Final Offer to Request for Proposal (“RFP”) number 110.7-23-

084 dated 12.15.2023;

d. STATE’s Solicitation Amendment #3 to Request for Proposal (“RFP”) number 110.7-23-084 dated 11.03.2023;

e. STATE’s Solicitation Amendment #2 to Request for Proposal (“RFP”) number 110.7-23-084 dated 11.02.2023;

f. STATE’s Solicitation Amendment #1 to Request for Proposal (“RFP”) number 110.7-23-084 dated 10.25.2023;

g. STATE’s Request for Proposal (“RFP”) number 110.7-23-084, dated 10.17.2023;

h. CONTRACTOR’s proposal dated 11.17.2023 in response to RFP number 110.7-23-084.

All automated end-user agreements (e.g., click-through, shrink-wrap, or browse-wrap) are specifically excluded and null and void. Clicking shall not represent acknowledgement or agreement to any terms and conditions contained in those agreements.

35. UNANTICIPATED AMENDMENTS

If additional work is required within the scope of this Contract due to a legitimate unforeseen circumstance, STATE shall provide CONTRACTOR a written description of the additional work and request CONTRACTOR to submit a proposal for accomplishing the scope of work. CONTRACTOR will not commence additional work until all Parties agree in writing.

36. SEVERABILITY

If any term of this Contract is declared to be illegal or unenforceable by a court having competent jurisdiction, the validity of the remaining terms is unaffected and, if possible, the rights and obligations of the Parties are to be construed and enforced as if this Contract did not contain that term.

37. APPLICABLE LAW AND VENUE

This Contract is governed by and construed in accordance with the laws of the State of North Dakota. Any action to enforce this Contract must be adjudicated exclusively in the state District Court of Burleigh County, North Dakota. Each Party consents to the exclusive jurisdiction of such court and waives any claim of lack of jurisdiction or forum non conveniens.

38. ALTERNATIVE DISPUTE RESOLUTION – JURY TRIAL

By entering this Contract, STATE does not agree to binding arbitration, mediation, or any other form of mandatory Alternative Dispute Resolution. The Parties may enforce the rights and remedies in judicial proceedings. STATE does not waive any right to a jury trial.

39. ATTORNEY FEES AND COSTS

In the event a lawsuit is instituted by STATE to obtain performance under this Contract, and STATE is the prevailing Party, CONTRACTOR shall, except when prohibited by N.D.C.C. § 28-26-04, pay STATE’s reasonable attorney fees and costs in connection with the lawsuit.

40. NONDISCRIMINATION - COMPLIANCE WITH LAWS

CONTRACTOR agrees to comply with all applicable federal and state laws, rules, and policies, including those relating to nondiscrimination, accessibility and civil rights. (See N.D.C.C. Title 34 – Labor and Employment, specifically N.D.C.C. ch. 34-06.1 Equal Pay for Men and Women.)

CONTRACTOR agrees to timely file all required reports, make required payroll deductions, and timely pay all taxes and premiums owed, including sales and use taxes, unemployment compensation and workers' compensation premiums. CONTRACTOR shall have and keep current all licenses and permits required by law during the Term of this Contract all licenses and permits required by law.

CONTRACTOR’s failure to comply with this section may be deemed a material breach by CONTRACTOR entitling STATE to terminate in accordance with the Termination for Cause section of this Contract.

41. STATE AUDIT

Pursuant to N.D.C.C. § 54-10-19, all records, regardless of physical form, and the accounting practices and procedures of CONTRACTOR relevant to this Contract are subject to examination by the North Dakota State Auditor, the Auditor’s designee, or Federal auditors, if required.

CONTRACTOR shall maintain these records for at least three (3) years following completion of this Contract and be able to provide them upon reasonable notice. STATE, State Auditor, or Auditor’s designee shall provide reasonable notice to CONTRACTOR prior to conducting examination.

42. COUNTERPARTS

This Contract may be executed in multiple, identical counterparts, each of which is be deemed an original, and all of which taken together shall constitute one and the same Contract.

43. EFFECTIVENESS OF CONTRACT

This Contract is not effective until fully executed by both Parties. If no start date is specified in the Term of Contract, the most recent date of the signatures of the Parties shall be the Effective Date.

CONTRACTOR STATE OF NORTH DAKOTA

Pervasent Acting through its Office of Management & Budget

BY:

Stuart Williams Printed Name: Sowmya Karumanchi Title: CEO Title: IT Procurement Officer Date: March 11, 2024 Date:

03/11/2024

EXHIBIT A – Participating Addendum

PARTICIPATING ADDENDUM

Board Management Software (Master Contract)

Pervasent Software Inc. (CONTRACTOR) and

NAME (PARTICIPATING ENTITY)

1. Entire Agreement – Modification – Conflict in Documents:

This Participating Addendum and the Master Contract together with any attachments set forth the entire agreement between the parties. This addendum may not be modified, supplemented, or amended, in any manner, except by written agreement signed by both parties. For the avoidance of doubt, in the event of conflict between the prior Agreement’s terms and conditions, including its practical application during the preexisting business relationship, the parties hereby agree that the terms and conditions of this Participating Addendum and the Master Contract shall control.

2. Effective Date and Contract Period:

The Term of this Participating Addendum shall run coterminous to the term of the Master Contract. This Participating Addendum retains the same Renewal Options as that of the Master Contract but is not considered renewed without a written amendment to this Participating Addendum.

3. Scope of Work: This Participating Addendum authorizes CONTRACTOR to provide the deliverables described in accordance with the Scope of Work specified in the Master Contract.

Deliverable dates are described below:

4. Project Plan:

ACCEPTANCE PROCESS:

Upon completion of a deliverable, the parties shall follow the acceptance process in accordance with the Contract.

A. DELIVERABLE 1: DEPLOYMENT

1) Description:

PARTICIPATING ENTITY will install the software. The following describes how the software will be deployed:

a) Build system per requirements.

b) Work in cooperation with CONTRACTOR to create plan for deployment.

2) Completion Date:

Date to be determined by PARTICIPATING ENTITY in conjunction with CONTRACTOR but must occur within Contract Start and Contract End Dates.

3) Acceptance Criteria:

For the acceptance of this deliverable to occur, the following criteria shall be met:

All of Deliverable 4 must be successfully met, installed, created, provided, and approved by PARTICIPATING ENTITY in writing.

B. DELIVERABLE 2: SYSTEM ACCEPTANCE TESTING

1) Description:

The goal of system acceptance testing is to ensure that the software is functioning properly. During system acceptance testing; PARTICIPATING ENTITY will be able to use the new system for their job roles to ensure that the system meets PARTICIPATING ENTITY’s business requirements.

2) Completion Date:

Date to be determined during deployment but must occur within Contract Start and Contract End Dates.

3) Acceptance Criteria:

For the acceptance of this deliverable to occur, the following criteria shall be met:

PARTICIPATING ENTITY must feel comfortable that the software is functioning properly and performing correctly to meet the requirements within the contract, RFP, scope of work. The PARTICIPATING ENTITY will approve their comfort level and completeness of system acceptance testing in writing.

C. DELIVERABLE 3: TRAINING

1) Description:

Training via webcasts will be conducted for staff members of PARTICIPATING ENTITY on the new software. On-going training of PARTICIPATING ENTITY staff will be conducted by the CONTRACTOR upon request as new staff is added.

2) Completion Date:

Date to be determined during deployment but must occur within Contract Start and Contract End Dates.

3) Acceptance Criteria:

For the acceptance of this deliverable to occur, the following criteria shall be met:

(i) PARTICIPATING ENTITY must be trained and equipped to its reasonable satisfaction with pertinent materials and agree by signing.

(ii) Instructional documentation (which may be embedded in the software or available on-line) must have been provided to all PARTICIPATING ENTITY staff.

D. DELIVERABLE 4: IMPLEMENTATION

1) Description:

CONTRACTOR shall support implementation of the final system.

2) Completion Date:

Date to be determined during deployment but must occur within Contract Start and Contract End Dates.

3) Expectations of CONTRACTOR:

1) CONTRACTOR shall participate, contribute, and collaborate with

PARTICIPATING ENTITY for implementation preparations.

2) CONTRACTOR shall make any fixes required in a timely manner to implement the system as approved in the acceptance testing deliverable.

3) CONTRACTOR shall provide technical support to state as needed for implementation efforts.

4) Expectations of PARTICIPATING ENTITY:

1) PARTICIPATING ENTITY shall participate, contribute, and collaborate with CONTRACTOR for implementation preparations.

2) PARTICIPATING ENTITY shall monitor the implementation and notify CONTRACTOR of any issues.

5) Acceptance criteria:

1) CONTRACTOR support during implementation

2) System go live with no unresolved issues

E. DELIVERABLE 5: FINAL ACCEPTANCE

1) Description:

Upon completion of all deliverables, and upon mutual agreement of STATE and CONTRACTOR, the project work will be considered complete.

2) Expectations of CONTRACTOR:

CONTRACTOR shall address any outstanding issues or completion of deliverables.

3) Expectations of PARTICIPATING ENTITY:

PARTICIPATING ENTITY shall alert CONTRACTOR to any outstanding issues.

4) Completion Date:

Date to be determined during deployment but must occur within Contract Start and Contract End Dates.

5) Acceptance Criteria:

For the acceptance of this deliverable to occur, the following criteria must be met:

1) No outstanding or unfinished deliverables

2) No outstanding project or system issues

5. Primary Contacts for this Participating Addendum:

PARTICIPATING ENTITY NAME Pervasent Software Inc.

Contact Name: Contact Name: Stuart Williams Address: Address: 55 Santa Clara Ave, Ste 180 City, State: City, State: Oakland, CA 94610 Phone: Phone: 510-903-1001 Email: Email: stuartw@pervasent.com

6. Termination:

PARTICIPATING ENTITY may terminate this Participating Addendum with 30 days’ notice to CONTRACTOR and OMB, State Procurement Office contact.

7. Distribution:

A copy of each executed Participating Addendum will be submitted by CONTRACTOR to:

ND State Procurement Office

Sowmya Karumanchi skarumanchi@nd.gov

8. Payment of Taxes:

PARTICIPATING ENTITY is not responsible for and will not pay local, state, or federal taxes.

Sales tax exemption number is and will be furnished upon request.

9. Project Deliverable Payment Schedule:

The deliverable payment schedule is not applicable as there are no implementation costs being charged by the CONTRACTOR.

IN WITNESS WHEREOF, the parties have executed this Addendum as of the date of execution by both parties below.

PARTICIPATING ENTITY CONTRACTOR

Signed: Signed:

Printed Name: INSERT NAME Printed Name: Stuart Williams Title: INSERT TITLE Title: CEO Date: Date:

OMB, ND STATE PROCUREMENT OFFICE

Signed:

Printed Name: Sowmya Karumanchi Title: IT Procurement Officer Date:

EXHIBIT B – Compensation Details

CONTRACTOR agrees to work with PARTICIPATING ENTITY AND NDIT to install on…