435500-O25-1755Bakery-00.pdf

Revision: 02/21/2025 (previous versions obsolete)

Wisconsin Department of Health Services

Contract Centralization Legal Review

Agreement Number:

Bureau of Procurement and Contracting (BPC) Review:

This agreement requires Standard OLC review.

This agreement uses a BPC template with Office of Legal Counsel (OLC) approved language and requires Simple OLC review.

This agreement uses a BPC template with Office of Legal Counsel (OLC) approved language and does not require Additional OLC review.

This agreement uses intergovernmental cooperative purchasing.

Description:

Office of Legal Counsel (OLC) Review and Approval:

This agreement has been reviewed for form and approved by the Wisconsin Department of

Health Services Office of Legal Counsel.

Name: Date Signed

Title:

Docusign Envelope ID: 14DFDD9C-5F39-40F1-BCB3-A75B8EEC805D

435500-O25-1755Bakery-00

X

6/20/2025 Cody Wagner

Office of Legal Counsel

N/A

Revision: 8/2/2022 (previous versions obsolete)

Bureau of Procurement and Contracting

Procurement Authority Review (Not required for CARS/GEARS agreements)

Submitting division:

Division submitter:

Procurement authority:

Request for Bid (provide solicitation#):

Request for Proposal (provide solicitation#):

Request for Services

Waiver (provide waiver#):

Simplified Bid

Interagency

Grant exemption (provide GE#):

Other (describe):

Appropriation (if applicable):

DCTS

Robert Stanley CA Brenda Montes Benitez

RFB 1755 Fresh Bakery Products

Revision: 11/26/2024 (previous versions obsolete)

CONTRACT FOR GOODS

between

State of Wisconsin Department of Health Services (DHS) and

Alpha Baking Company for

Fresh Bakery Products

This Contract is between the State of Wisconsin Department of Health Services (DHS), at 1 West Wilson Street, Madison, Wisconsin 53703, and Alpha Baking Company at 4545 West Lyndale Street, Chicago, IL 60639-3419.

Contract ID Number: 435500-O25-1755Bakery-00

Contract Amount: Price per unit shall not exceed Amount indicated on Exhibit A- Price Sheet

Contract Term: One Year after date Contract is Fully Executed

Optional Renewal Terms: Four (4) Option 1-year renewals

DHS Division: Division of Care and Treatment Services

DHS Contract Administrator: Brenda Montes Benitez

DHS Contract Manager: Robert Stanley

Contractor Contract Administrator: Tim Perakis

Contractor Telephone: 773-852-7957

Contractor Email: tperakis@alphabaking.com

Contractor ID: 0000006942

This Contract will become effective on the date of mutual execution by the parties’ authorized representatives. By signing below, the parties acknowledge that this Contract is executed with full knowledge of and agreement with the terms and conditions of this Contract. This Contract becomes null and void if the time between the earlier dated signature and the later dated signature exceeds sixty (60) days, unless waived by DHS.

State of Wisconsin Contractor

Department of Health Services Contractor Name:

Authorized Representative Authorized Representative

Name:

Name:

Title: Title:

Signature: Signature:

Date: Date:

VP Fresh DSD Sales

6/25/2025

Tim Perakis

Alpha Baking Company

Administrator

Gynger Steele

6/25/2025

TABLE OF CONTENTS

Definitions Order of Precedence Scope Of Work

3.1. List of Exhibits

Applicable Law and Venue Invoicing and Payments

5.1. Prompt Payment Law

5.2. State Tax Exemption

5.3. Payment Offsets for Contractor’s Delinquency

5.4. Refund of Credits

5.5. Purchase Order

Contract Modification High-Risk IT review Price Decreases Delivery Requirements

Freight Charges Defective Goods, Duplicates, and Over-Shipments Acceptance Testing Safety Notices/Recalls No Quantity Guarantees Contractor Compliance and Responsibility for Actions Independent Contractor and Apparent Agency Contractor Personnel

17.1. Identification of Contracted Personnel

17.2. Right to Approve Changes of Contracted Personnel

17.3. Removal of Contracted Personnel

17.4. Prior approval and substitution of Subcontractor(s)

Background Checks Cooperation with Other Contractors Specifications Insurance Responsibility Warranty and Liens Conflict of Interest

23.1. Notice of Potential Conflict

Ownership Rights Confidential, Proprietary, and Personally Identifiable Information Security of Premises, Equipment, Data, and Personnel Intellectual Property Infringement and Labor Standards Records Retention Examination of Records Breach not Waiver Severability Survival Sovereign Immunity Indemnification Limited Liability State Employees Promotional Advertising and News Releases Assignment Force Majeure

Default and Remedy Termination/Cancellation

41.1. Non-Appropriation

41.2. Termination for Cause

41.3. Termination for Convenience

41.4. Cancellation

Antitrust Assignment Anti-Lobbying Act Affirmative Action Conversion therapy Civil Rights Compliance Supplier Diversity and Reporting Requirements Federal Contract Requirements Drug Free Workplace Contact Information

DEFINITIONS

Words and terms will be defined by their ordinary and usual meanings. Unless negotiated otherwise by the parties, where capitalized, the following words and terms will be defined by the meanings indicated. The meanings are applicable to the singular, plural, masculine, feminine and neuter of the words and terms.

Acceptance: a manifestation of assent by DHS to the terms, Services, Goods or other items offered by the

Contractor under the Contract. Unless the particular methodology and measure of acceptance of the offered terms, Services, or Goods is set forth herein, acceptance shall occur, in the case of Goods, after delivery is taken and the

Goods are inspected, and payment has been made; or in the case of Services, those Services have been provided to

DHS’ satisfaction and acceptance, and payment has been made.

Agency: an office, department, agency, institution of higher education, association, society or other body in State of

Wisconsin government created or authorized to be created by the Wisconsin State Constitution or any law, which is entitled to expend monies appropriated by law, including the legislature and the courts.

Assistance Listing: refers to the publicly available listing of Federal assistance programs managed and administered by the General Services Administration, formerly known as the Catalog of Federal Domestic

Assistance (CFDA), pursuant to 2 C.F.R. § 200.1.

Business Associate: pursuant to 45 C.F.R. § 160.103, a business associate includes:

(i) A health information organization, e-prescribing gateway, or other person that provides data transmission services with respect to protected health information to a covered entity and that requires access on a routine basis to such protected health information.

(ii) A person that offers personal health record to one or more individuals on behalf of a covered entity.

(iii) A subcontractor that creates, receives, maintains, or transmits protected health information on behalf of the business associate.

Business Day: any day on which the State of Wisconsin is open for business, generally Monday through Friday unless otherwise specified in this Contract.

Confidential Information: all tangible and intangible information and materials being disclosed in connection with this Contract, in any form or medium without regard to whether the information is owned by the State of

Wisconsin or by a third party, which satisfies at least one (1) of the following criteria: (i) Personally Identifiable

Information; (ii) Protected Health Information under HIPAA, 45 CFR §160.103; (iii) non-public information related to DHS’ employees, customers, technology (including databases, data processing and communications networking systems), schematics, specifications, and all information or materials derived therefrom or based thereon; or (iv) information expressly designated as confidential in writing by DHS. Confidential Information includes all information that is restricted or prohibited from disclosure by state or federal law.

Contract Administrator: the DHS staff member responsible for the implementation, administration, and completion of the Contract.

Contract Manager: the DHS staff member who will oversee this Contract. This person will support the Contract

Administrator, and will help resolve issues that arise during the entire Contract lifecycle.

Contractor: Contractor means any individual or any legal entity, including its officers and directors, that submits bids or proposals for, or is awarded or may reasonably be expected to submit bids or proposals for or be awarded a department contract. Contractor includes any subcontractor of a contractor that conducts business with the department as an agent or representative of a contractor and any individual or legal entity that conducts business with the department as an agent or representative of a contractor. For this Contract, the Contractor is Alpha Baking

Company.

Day: calendar day unless otherwise specified in this Contract.

Default: the omission or failure to perform a contractual duty or provide Goods or Services as contractually required.

DHS: Department of Health Services.

Goods: articles of trade or items of merchandise, supplies, raw materials, or finished products; may also include incidental or related Services.

Inspection: a careful examination of Goods, commodities, and items produced under this Contract or the site that provides Services or Goods in order to determine their fitness for use.

Municipality: a county, city, village, town, school district, board of school directors, sewer district, drainage district, technical college district or any other public or quasi-public corporation, officer, board or other body having the authority to award public contracts. (§ 16.70(8), Wis. Stats.).

Personally Identifiable Information: an individual’s last name and the individual’s first name or first initial, in combination with and linked to any of the following elements, if that element is not publicly available information and is not encrypted, redacted, or altered in any manner that renders the element unreadable: (a) the individual’s

Social Security number; (b) the individual’s driver’s license number or state identification number; (c) the number of the individual’s financial account, including a credit or debit card account number, or any security code, access code, or password that would permit access to the individual’s financial account; (d) the individual’s DNA profile;

or (e) the individual’s unique biometric data, including fingerprint, voice print, retina or iris image, or any other unique physical representation, and any other information protected by state or federal law.

Protected Health Information (PHI): health information, including demographic information, created, received, maintained, or transmitted in any form or media by the Business Associate, on behalf of the Covered Entity, where such information relates to the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the payment for the provision of health care to an individual, that identifies the individual or provides a reasonable basis to believe that it can be used to identify an individual.

Publicly Available Information: any information that an entity reasonably believes is one of the following: a) lawfully made widely available through any media; b) lawfully made available to the general public from federal, state, or local government records or disclosures to the general public that are required to be made by federal, state, or local law.

State Purchase Order: State of Wisconsin’s standard document of purchase.

Services: all actions, recommendations, plans, research, customizations, modifications, documentation and maintenance and support provided by the Contractor necessary to fulfill that which the Contractor is obligated to accomplish under this Contract.

Subcontract: a Contract, written or oral, financial or non-financial, between the Contractor and any other party to fulfill the requirements and performance obligations of this Contract.

Subcontractor: Subcontractor means a person or company that assumes by secondary contract some or all of the obligations of an original contractor.

ORDER OF PRECEDENCE

This Contract and the following documents incorporated by reference into the Contract constitute the entire agreement of the parties and supersedes all prior communications, representations or agreements between the parties, whether oral or written. Any conflict or inconsistency will be resolved by giving precedence in the following descending order:

1. The Business Associate Agreement (BAA) if applicable.

2. The terms of this Contract.

3. Any and all exhibits or attachments to this Contract.

4. The official purchase order.

5. The terms of solicitation # S-1755 DCTS-25, including all attachments, addenda, and revisions, if applicable.

6. The terms of Contractor’s solicitation response as accepted by DHS of Wisconsin., if applicable.

SCOPE OF WORK

3.1. List of Exhibits

Exhibit A: Price Sheet

Exhibit B: Contract Deliverables

Exhibit C: Delivery Location and Hours

APPLICABLE LAW AND VENUE

This Contract shall be governed by the laws of the State of Wisconsin. The venue for any actions brought under this

Contract shall be the Circuit Court of Dane County, Wisconsin or the U.S. District Court for the Western District of

Wisconsin, as applicable.

INVOICING AND PAYMENTS

Invoices presented for payment must be submitted in accordance with instructions contained on the purchase order including reference to purchase order number and submittal to the correct address for processing.

5.1. Prompt Payment Law

DHS shall pay properly submitted Contractor invoices within 30 days of receipt, providing that the services to be provided to DHS have been delivered, rendered, or installed (as the case may be), and accepted as specified in this Contract and all documents incorporated herein by reference. A good faith dispute in regard to an invoice creates an exception to prompt payment pursuant to Wis. Stat. § 16.528.

5.2. State Tax Exemption

DHS is exempt from payment of Wisconsin sales or use tax on all purchases.

5.3. Payment Offsets for Contractor’s Delinquency

The State of Wisconsin may offset payments made to the Contractor under this Contract in an amount necessary to satisfy a certified or verifiable delinquent payment owed to the State or any state or local unit of government. DHS reserves the right to cancel this Contract as provided in the Section CONTRACT

CANCELLATION, if the delinquency is not satisfied by the offset or other means during the Contract term.

5.4. Refund of Credits

DHS may request a refund of credits owed at any time. Contractor agrees to refund credits owed within 60 days of DHS’ request.

5.5. Purchase Order

The Official State of Wisconsin Purchase Order (DOA – 3054A) with its standard terms and conditions are herein incorporated into this Contract and shall be the only method of ordering from this Contract. The

Supplemental Standard Terms and Conditions for Procurements for Services (DOA – 3681) is herein incorporated into this Contract for any purchase of services.

Docusign Envelope ID: 14DFDD9C-5F39-40F1-BCB3-A75B8EEC805D https://doa.wi.gov/Forms/DOA-3054AStandardTermsandConditionsPurchaseOrder.doc https://doa.wi.gov/Forms/DOA-3681SupplementalStandardTermsandConditions.doc

CONTRACT MODIFICATION

This Contract may not be modified or amended except by mutual agreement of both parties in writing. If this

Contract is the result of a competitive solicitation, then any modification(s) to this Contract must remain within the scope of the competitive solicitation that was accepted by DHS and used as a basis for a contract award(s).

HIGH-RISK IT REVIEW

Pursuant to Wis. Stat. 16.973(13), Contractor is required to submit, via the contracting agency, to the Department of

Administration for approval any order or amendment that would change the scope of the contract and have the effect of increasing the contract price. The Department of Administration shall be authorized to review the original contract and the order or amendment to determine whether the work proposed in the order or amendment is within the scope of the original contract and whether the work proposed in the order or amendment is necessary. The

Department of Administration may assist the contracting agency in negotiations regarding any change to the original contract price.

PRICE DECREASES

Any price decrease(s) from a manufacturer or third party that are passed through to the Contractor are required to be passed on to DHS within thirty (30) days of the effective date of the price decrease(s).

DELIVERY REQUIREMENTS

Please reference Exhibit B: Contract Deliverables.

FREIGHT CHARGES

Delivery will be made by common carrier or Contractor’s truck, with unloading performed by the carrier/Contractor. Products must be transported to the interior/ground floor or inside dock at address as per

Exhibit C: Delivery Location and Hours. Prices include all costs associated with shipping, including but not limited to: packing, transportation, labor, insurance charges, and installation/operation manuals. Fuel surcharges will not be allowed.

DEFECTIVE GOODS, DUPLICATES, AND OVER-SHIPMENTS

The Department reserves the right to reject any shipments that it deems faulty. Such shipments will be returned at the Contractor’s expense. The Department will not be responsible for charges incurred as a result of a defective product. If the Contractor is unable to furnish an acceptable product, the Department may elect to purchase from another Vendor such quantities as may be needed to fulfill the immediate need. Any difference in costs between the

Contract price and the price of such shipments from another Vendor shall be deducted from any invoices which may be due to the Contractor.

The Department will notify the Contractor within thirty (30) days of receipt of the need to return a duplicate shipment. The product must be removed within thirty (30) days of such notice at the Contractor’s expense without a restocking fee or shipping charges. If this is not possible, DHS reserves the right to dispose of the products and shall not be held liable for the cost.

The Department will notify the Contractor within thirty (30) days of receipt of the need to return of shipments ordered in error. The products must be removed within thirty (30) days of such notice. DHS and the Contractor will negotiate the terms of the restocking and shipping charges.

ACCEPTANCE TESTING

Please reference Exhibit B: Contract Deliverables.

SAFETY NOTICES/RECALLS

Contractor must provide immediate notification to DHS of any recall notices, warranty replacements, safety notices, legal notices, and potential and/or actual breaches in security involving sensitive products/access to facilities, etc. Failure to report this information may result in immediate termination of an order and Contract.

NO QUANTITY GUARANTEES

DHS may obtain related products and services from other sources during the term of the Contract. DHS makes no express or implied warranties whatsoever that any particular quantity or dollar amount of products or Services will be purchased through this Contract.

CONTRACTOR COMPLIANCE AND RESPONSIBILITY FOR ACTIONS

The Contractor shall at all times comply with and observe all federal, state, and local laws, ordinances, regulations, and DHS work rules that are in effect during the term of this Contract that may affect the Contractor’s work or obligations hereunder. The Contractor shall be solely responsible for its actions and those of its agents, employees, or Subcontractors.

Pursuant to 2023 Executive Order 184, grantee agrees it does not sell any products prohibited in the Order. In addition, grantee agrees that in fulfillment of its responsibilities under the Contract that no subcontractor relationship exists that would violate the prohibitions outlined in the Order.

INDEPENDENT CONTRACTOR AND APPARENT AGENCY

The Contractor, its officers, agents, and employees, in the performance of this Contract, shall act in the capacity of an independent contractor and not as an officer, employee, or agent of DHS. To the extent within its reasonable control, the Contractor agrees to take such steps as may be necessary toward assuring that each Subcontractor under this Contract will be deemed to be an independent contractor and will not be considered or permitted to be an agent, servant, joint venture, or partner of DHS.

The Contractor shall not take any action, or make any omission, that may imply, or cause others to reasonably infer, that the Contractor is acting as a DHS agent in any matter or in any way not expressly authorized by this Contract.

The Contractor shall be solely responsible for its actions and those of its agents, employees, or Subcontractors under this Contract, and neither the Contractor nor any of the foregoing parties has authority to act or speak on behalf of DHS.

CONTRACTOR PERSONNEL

17.1. Identification of Contracted Personnel

If requested by DHS, the Contractor will provide a list of the names of all Contractor’s employees, contracted personnel, or Subcontractor’s employees who may at any time require admission to the State’s premises in connection with the rendering of Services, specifying each such person’s connection to the Contractor, the role the person is to take in the performance of the Contract, and other information as requested by DHS. DHS reserves the right to refuse to admit to the State's premises any person employed or contracted by the

Contractor.

The Contractor shall furnish each contracted personnel with a means of identifying themselves as agents, Subcontractors, or employees of the Contractor assigned to perform Services under the Contract, and furnish

DHS with security credentials on these contracted personnel, if requested.

17.2. Right to Approve Changes of Contracted Personnel

DHS shall be apprised of any change of contracted personnel. Any changes in personnel must ensure compliance with this Contract. DHS shall notify Contractor if it determines that any change in personnel may interfere with performance of this Contract and Contractor shall take appropriate and timely action to cure by making personnel changes as it deems necessary to perform this Contract.

17.3. Removal of Contracted Personnel

DHS shall make Contractor aware of any business concerns with Contractor’s/Subcontractor’s personnel and

Contractor shall take necessary action to ensure that its employees do not interfere with the operations of DHS, including removing Contractor’s/Subcontractor’s personnel from the DHS facility or site, if necessary. DHS’ right to do so does not implicate DHS as a party to any of the Contractor’s obligations in the Contract. DHS may request that key personnel or personnel that will perform Services on-site at a DHS facility be replaced within thirty (30) Calendar Days from such removal.

17.4. Prior approval and substitution of Subcontractor(s)

All subcontractor(s) of the Contractor must have prior written approval from DHS in the performance of this

Contract. A thirty (30) calendar days advance notice to substitute a previously approved subcontractor(s) shall be sent by the Contractor to DHS for a prior written approval of any such substitute of an approved subcontractor(s). The thirty (30) calendar days advance notice to substitute a previously approved subcontractor(s) can be temporarily waived at the sole discretion of DHS.

BACKGROUND CHECKS

Prior to the commencement of any Services under this Contract, in order to ensure safety and security at its premises, DHS may request a background or criminal history investigation of contracted personnel at any time during the term of this Contract for any of Contractors’ contracted personnel and Subcontractor’s employees, who will be providing Services to DHS under the Contract. If any contracted personnel, including Subcontractor’s employees, providing Services to DHS under this Contract are not acceptable to DHS to ensure safety and security in its premises, in its sole discretion as a result of the background or criminal history investigation, DHS shall provide notice to the Contractor that the contracted personnel do not meet DHS’ safety and security needs and that the personnel will not be allowed on DHS premises. Contractor shall as soon as practicable replace the contracted personnel with another of its contracted personnel in order to ensure compliance with this Contract.

COOPERATION WITH OTHER CONTRACTORS

In the event that DHS enters into a Contract with another Contractor for additional services, the Contractor will ensure that Contractor’s personnel fully cooperate with said other Contractor. Contracted personnel shall not commit any act that interferes with the rendering of Services by any other Contractor or by DHS. Contracted personnel shall cooperate with State personnel, hardware manufacture representatives, system software Contractors, and communications systems Contractors in the provision of Services under this Contract.

SPECIFICATIONS

The apparent silence of the DHS' specifications as to any detail, or the apparent omission of a detailed description concerning any matter, shall be regarded as meaning that only the best commercial practice shall be followed and only material and workmanship of the first quality may be used. Upon any notice of noncompliance provided by

DHS, Contractor shall supply proof of compliance with the specifications or provide written notice of their intent to deliver alternate or substitute Services or deliverables. Alternate or substitute Services or deliverables may be accepted or rejected in the sole discretion of DHS, and any such alternates or substitutes shall be accompanied by

Contractor's certification and evidence satisfactory to DHS that the function, characteristics, performance and endurance shall be equal or superior to the original Services or deliverables specified. DHS will not unreasonably withhold the approval of alternates or substitutes under this section.

INSURANCE RESPONSIBILITY

The Contractor shall maintain the following insurance coverage:

a) Worker's compensation insurance, as required by Wis. Stat. ch. 102 or applicable state law where contracted personnel are employed, for Contractor’s contracted personnel engaged in work performed under this Contract;

b) As the employer of the contracted personnel, Contractor shall fund an account with the Wisconsin unemployment reserve fund or, if the Contractor employs contracted personnel to work under this Contract in another state, the reserve fund in the state where the contracted employees are employed, as required by applicable statutes and regulations;

c) Commercial liability, bodily injury and property damage insurance against any claim(s) that may occur in carrying out the terms of this Contract, with a minimum coverage of one million dollars ($1,000,000) liability for bodily injury and property damage including products liability and completed operations; and

d) Motor vehicle insurance for all owned, non-owned and hired vehicles that are used in carrying out the terms of this Contract, with a minimum coverage of one million dollars ($1,000,000) per occurrence combined single limit for automobile liability and property damage.

The Contractor shall maintain a Certificate of Insurance, showing up-to-date coverage, and shall be made available to DHS upon request.

WARRANTY AND LIENS

The Contractor warrants and represents that all deliverables ordered under this Contract are free and clear of all liens, claims or encumbrances of any kind.

Deliverables and Services rendered shall be strictly in accordance with the order placed and may not deviate in any way from the terms, conditions or specifications of this Contract, without the prior written approval of DHS.

Deliverables delivered under this Contract may be subject to inspection and testing upon receipt.

The Contractor warrants that the deliverables provided shall conform to the specifications in this Contract, are fit and sufficient for the purpose manufactured, of good material and workmanship, and free from defect. Deliverables offered must be new and unused and of the latest model or manufacture, unless otherwise specified by DHS. Items shall be equal in quality and performance to the standards indicated herein. Deliverables delivered that do not conform to the Contract terms, conditions, and specifications may be rejected and returned at the Contractor’s expense. Contractor shall assign to DHS its right to recover under any warranties applicable to the deliverables offered.

CONFLICT OF INTEREST

Contractor represents and warrants the following: That Contractor has no business, professional, personal, or other interest, including, but not limited to, the representation of other clients, that would conflict in any manner or degree with the performance of its obligations under this Contract.

23.1. Notice of Potential Conflict

If any such actual or potential conflict of interest arises under this Contract, Contractor shall immediately inform DHS in writing of such conflict. Full written disclosure shall include, but is not limited to, identification of all persons implicated and a complete description of all relevant information.

If any such actual or potential conflict of interest is identified by DHS under this Contract, DHS shall immediately inform the Contractor in writing of such conflict and request a full investigation. A request for investigation must include a written disclosure that contains, but is not limited to, identification of all persons implicated and a complete description of all relevant information.

If any such actual or potential conflict of interest is identified by either DHS or the Contractor, a final determination will be made, at the sole discretion of DHS, as to whether a conflict exists, and, if so, what mitigation activities shall be taken.

Additionally, if either DHS or the Contractor identifies required work functions that present an actual or potential conflict of interest internally to the Contractor and/or externally to DHS, the Contractor shall immediately make full written disclosure of such facts to DHS. Full written disclosure shall include, but will not be limited to, identification of all persons implicated, a complete description of all relevant information and a potential resolution of the conflict describing assurance that the required work functions will not pose additional conflicts on an ongoing basis.

OWNERSHIP RIGHTS

Unless an ownership interest is granted or reserved in this Contract, a State Purchase Order issued under this

Contract shall allow DHS unrestricted authority to reproduce, distribute, and use any submitted report, data, or material, and any software or modifications and any associated documentation that is designed or developed and delivered to DHS as part of the performance of the Contract.

CONFIDENTIAL, PROPRIETARY, AND PERSONALLY IDENTIFIABLE INFORMATION

In connection with the performance of the work prescribed in this Contract, it may be necessary for DHS to disclose to Contractor certain information that is considered to be confidential, proprietary, or containing Personally

Identifiable Information (Confidential Information). The Contractor shall not use such Confidential Information for any purpose other than the limited purposes set forth in this Contract, and all related and necessary actions taken in fulfillment of the obligations herein. The Contractor shall hold all Confidential Information in confidence, and shall not disclose such Confidential Information to any persons other than those directors, officers, employees, and agents who have a business-related need to have access to such Confidential Information in furtherance of the limited purposes of this Contract and who have been apprised of, and agree to maintain, the confidential nature of such information in accordance with the terms of this Contract.

Contractor shall institute and maintain such security procedures as are commercially reasonable to maintain the confidentiality of the Confidential Information while in its possession or control including transportation, whether physically or electronically.

Contractor shall ensure that all indications of confidentiality contained on or included in any item of Confidential

Information shall be reproduced by the Contractor on any reproduction, modification, or translation of such

Confidential Information. If requested by DHS, the Contractor shall make a reasonable effort to add a proprietary notice or indication of confidentiality to any tangible materials within its possession that contain Confidential

Information of DHS, as directed.

Contractor or its employees and Subcontractors will not reuse, sell, make available, or make use in any format the data researched or compiled for this Contract for any venture, profitable or not, outside this Contract.

The restrictions herein shall survive the termination of this Contract for any reason and shall continue in full force and effect and shall be binding upon the Contractor or its agents, employees, successors, assigns, Subcontractors, or any party claiming an interest in this Contract on behalf of or under the rights of Contractor following any termination. Contractor shall advise all of their agents, employees, successors, assigns and Subcontractors which are engaged by the State of the restrictions, present and continuing, set forth herein. Contractor shall defend and incur all costs, if any, for actions that arise as a result of noncompliance by Contractor, its agents, employees, successors, assigns and Subcontractors regarding the restrictions herein.

Reporting to DHS: Contractor shall immediately report within five (5) business days to DHS any use or disclosure of

Confidential Information not provided for by this Contract, of which it becomes aware. Contractor shall cooperate with DHS’ investigation, analysis, notification and mitigation activities, and shall be responsible for all costs incurred by DHS for those activities.

Indemnification: In the event of a breach of this section by Contractor, Contractor shall indemnify and hold harmless DHS and any of its officers, employees, or agents from any claims arising from the acts or omissions of the Contractor, and its Subcontractors, employees and agents, in violation of this section, including but not limited to, costs of credit monitoring and identity theft restoration coverage for one (1) year of coverage from the date the individual enrolls, of all persons whose Confidential Information was disclosed, disallowances or penalties from federal oversight agencies, and any court costs, expenses, and reasonable attorney fees, incurred by DHS in the enforcement of this section.

Equitable Relief: The Contractor acknowledges and agrees that the unauthorized use, disclosure, or loss of

Confidential Information may cause immediate and irreparable injury to the individuals whose information is disclosed and to DHS, which injury will not be compensable by money damages and for which there is not an adequate remedy available by law. Accordingly, the parties specifically agree that DHS, in its own behalf or on behalf of the affected individuals, may seek injunctive or other equitable relief to prevent or curtail any such breach, threatened or actual, without posting security and without prejudice to such other rights as may be available under this Contract or applicable law.

Liquidated Damages: The Contractor agrees that an unauthorized use or disclosure of Confidential Information may result in damage to the State's reputation and ability to serve the public interest in its administration of programs affected by this Contract. Such amounts of damages which will be sustained are not calculable with any degree of certainty and thus shall be set forth herein. Assessment under this provision is in addition to other remedies under this Contract and as provided in law or equity. The Department shall assess reasonable damages as appropriate and notify the Contractor in writing of the assessment. The Contractor shall automatically deduct any assessed damages from the next appropriate monthly invoice, itemizing the assessment deductions on the invoice.

Liquidated Damages shall not exceed the following:

i. $1,000 for each individual whose Confidential Information was used or disclosed;

ii. $2,500 per day for each day that the Contractor fails to substantially comply with the Corrective Action

Plan under this Section

The Department may conduct a compliance review of the Contractor's security procedures to protect Confidential

Information under this Contract Section CONFIDENTIAL, PROPRIETARY, AND PERSONALLY

IDENTIFIABLE INFORMATION.

HIPAA: The Contractor ___ IS or _X__ IS NOT a “business associate” pursuant to the definition under the Health

Insurance Portability and Accountability Act (HIPAA) and the regulations promulgated thereunder specifically 45

CFR 160.103. If the parties are business associates, then the parties shall comply with DHS’ Business Associate

Agreement.

If Contractor is a business associate, Contractor agrees to comply with the Health Insurance Portability and

Accountability Act, Public Law 104-191 and with the Standards for Privacy and Security of Individually

Identifiable Health Information, 45 CFR Parts 160 and 164 applicable to business associates. As defined herein, “Business Associate” shall mean the Contractor and Subcontractors and agents of the Contractor that receive, use or have access to protected health information under this Agreement and “Covered Entity” shall mean the State of

Wisconsin, Department of Health Services.

In agreements for the provision of services, activities, or functions covered by the Health Insurance Portability and

Accountability act of 1996 (HIPAA), the Contractor as a business associate must complete a Business Associate

Agreement (BAA) F-00759. This document must be fully executed before Contract performance begins.

This Section shall survive the termination of the Contract.

SECURITY OF PREMISES, EQUIPMENT, DATA, AND PERSONNEL

During the performance of services under this Contract, the Contractor may have access to the personnel, premises, equipment, and other property, including data files, information, or materials (collectively referred to as “data”) belonging to DHS. The Contractor shall preserve the safety, security, and the integrity of the personnel, premises, equipment, data and other State Property, in accordance with the instruction of DHS. The Contractor shall be responsible for damage to DHS’ equipment, workplace, and its contents, or for the loss of data, when such damage or loss is caused by the Contractor, contracted personnel, or Subcontractors, and shall reimburse DHS accordingly upon demand. This remedy shall be in addition to any other remedies available to the DHS by law or in equity.

To the extent that Contractor or their Subcontractor or employee receives any State Property to be used in performance of this contract, if such State Properties are not returned within 15 days of their engagement ending, Contractor will be responsible for the replacement value associated with the state property.

INTELLECTUAL PROPERTY INFRINGEMENT AND LABOR STANDARDS

The Contractor guarantees that any items provided to DHS under this Contract were manufactured or produced in accordance with applicable state and federal labor laws, and the sale or use of said items shall not infringe any

United States patent, copyright, or other intellectual property rights of others. The Contractor shall at its own expense indemnify, defend and hold DHS harmless from any claims brought against DHS for any alleged patent, copyright or other intellectual property right infringement due to the sale or use of such items, provided that the

Contractor is promptly notified of such suit, and is given all related documents. The Contractor shall pay all costs, damages, and profits recoverable in any such infringement lawsuit.

RECORDS RETENTION

Pursuant to §19.36 (3) of the Wisconsin Statutes, all records of the Contractor that are produced or collected under this Contract are subject to disclosure pursuant to a public records request. The Contractor shall establish and maintain adequate records of all documentation developed or compiled and expenditures incurred under this

Contract. All expenditure records shall be kept in accordance with Generally Accepted Accounting Procedures

(GAAP). All procedures shall be in accordance with federal, State and local laws or ordinances. The Contractor, following final payment, shall retain all records produced or collected under this Contract for six (6) years after final payment is made.

EXAMINATION OF RECORDS

DHS shall at any time during normal business hours, upon reasonable notice, have access to and the right to examine, audit, excerpt, transcribe, and copy, on Contractor's premises, any of the Contractor’s records and computer data storage media involving transactions directly pertinent to this Contract. If the material is on computer data storage media, the Contractor shall provide copies of the data storage media or a computer printout of such if DHS requests. Any charges for copies of books, documents, papers, records, computer data storage media or computer printouts provided by the Contractor shall not exceed the actual cost to the Contractor. This provision shall survive the termination, cancellation, or expiration of this Contract.

BREACH NOT WAIVER

A failure to exercise any right, or a delay in exercising any right, power or remedy hereunder on the part of either party shall not operate as a waiver thereof. Any express waiver shall be in writing and shall not affect any event or default other than the event or default specified in such waiver. A waiver of any covenant, term or condition contained herein shall not be construed as a waiver of any subsequent breach of the same covenant, term or condition. The making of any payment to the Contractor under this Contract shall not constitute a waiver of default, evidence of proper Contractor performance, or acceptance of any defective item or work furnished by the

Contractor.

SEVERABILITY

If any provision of this Contract is found to be invalid, illegal or unenforceable under any applicable statute or law, it is to that extent deemed to be omitted and the remaining provisions of this Contract will not be affected in any way.

SURVIVAL

The provisions regarding Confidential Information, Examination of Records, and Indemnification shall survive the termination, expiration or conclusion of the Contract, along with any other provisions contained in this Contract that by their language, sense and context are intended to survive.

SOVEREIGN IMMUNITY

Nothing in this Contract may be construed to constitute a waiver of the State of Wisconsin’s sovereign immunity under the Eleventh Amendment to the United States Constitution and Article IV, Section 27 of the Wisconsin

Constitution.

INDEMNIFICATION

Contractor shall hold DHS harmless and shall defend and indemnify DHS, its Agencies, officers and employees against any and all claims, suits, actions, liabilities and costs of any kind, including attorney's fees, for personal injury or damage to property arising from the acts or omissions of the Contractor, its agents, officers, employees or

Subcontractors.

LIMITED LIABILITY

Except for the Contract Section CONFIDENTIAL, PROPRIETARY, AND PERSONALLY IDENTIFIABLE

INFORMATION and the Contract Section INDEMNIFICATION, the cumulative liability of Contractor to the

Department for actual or alleged damages arising out of, based on, or relating to this agreement, whether based upon breach of Contract, tort (including negligence), warranty or any other legal theory, will not exceed the amount invoiced by the Contractor for services rendered during the twelve (12) calendar months immediately preceding the calendar month in which such losses occurred or, for losses that occur in the first year of the Contract, the amount in the Reimbursement Plan for the first twelve (12) calendar months of the Contract.

In addition, the Contractor shall indemnify the Department for any Federal funding disallowances or sanctions imposed on the Department for reasons attributable to the Contractor’s failure to perform in compliance with this

Contract.

STATE EMPLOYEES

The Contractor may not contract with or employ a State employee or an individual retained as a full-time

Contractor by DHS during the term of this Contract.

PROMOTIONAL ADVERTISING AND NEWS RELEASES

Reference to, or use of, the Great Seal of Wisconsin, the Wisconsin Coat of Arms, the DHS logo, or the name or likeness of any state official or employee for commercial promotion is strictly prohibited. News releases or release of broadcast e-mails pertaining to this Contract shall not be made without prior written approval of DHS. The

Contractor may identify DHS of Wisconsin as a client when the Contractor provides a list of Contractor’s clients.

ASSIGNMENT

No right or duty in whole or in part of either party under this Contract may be assigned or delegated without the prior written consent of the other party.

FORCE MAJEURE

Neither party shall be in default by reason of any failure in performance of this Contract in accordance with reasonable control and without fault or negligence on their part. Such causes may include, but are not restricted to, acts of nature or the public enemy, acts of the government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes and unusually severe weather, but in every case, the failure to perform such must be beyond the reasonable control and without the fault or negligence of the party.

DEFAULT AND REMEDY

If the Contractor fails to remedy any delay or other problem in its performance of this Contract after receiving reasonable notice from DHS to do so, the Contractor shall reimburse DHS for all reasonable costs incurred as a direct consequence of the Contractor’s delay, action, or inaction.

In case of failure to deliver services in accordance with this Contract, DHS, upon written notice to the Contractor, may procure such services from other sources as necessary, and the Contractor shall be responsible for the additional cost, including purchase price and administrative fees. This remedy shall be in addition to any other legal remedies available to DHS. Prior written notice shall not be required where, in the opinion of DHS, the public health, safety, or welfare is endangered by the act or omission of the Contractor.

TERMINATION/CANCELLATION

41.1. Non-Appropriation

DHS reserves the right to cancel this Agreement in whole or in part without penalty if the Wisconsin

Legislature, United States Congress, or any other direct funding entity contributing to the financial support of this contract fails to appropriate funds necessary to complete the contract.

41.2. Termination for Cause

DHS may terminate this Contract after providing the Contractor with thirty (30) calendar days written notice of the Contractor’s right to cure a failure of the Contractor to perform under the terms of this Contract, if the

Contractor fails to so cure or commence to cure.

The Contractor may terminate the Contract after providing DHS one hundred and twenty (120) calendar days written notice of DHS’ right to cure a failure of DHS to perform under the terms of this Contract.

Upon the termination of this Contract for any reason, or upon Contract expiration, each party shall be released from all obligations to the other party arising after the date of termination or expiration, except for those that by their terms survive such termination or expiration.

Upon termination for cause, the Contractor shall be entitled to receive compensation for any deliverables’ payments owed under the Contract only for deliverables that have been approved and accepted by DHS.

41.3. Termination for Convenience

Either party may terminate this Contract at any time, without cause, by providing a written notice. DHS must notify the Contractor at least forty-five (45) calendar days prior to the desired date of termination for convenience. The Contractor must notify DHS at least two hundred and forty (240) calendar days prior to the desired date of termination for convenience. During this notification period, the Contractor will continue providing services in accordance with the Contract requirements.

In the event of termination for convenience, the Contractor shall be entitled to receive compensation for any fees owed under the Contract. The Contractor shall also be compensated for partially completed services. In this event, compensation for such partially completed services shall be no more than the percentage of completion of the services requested, at the sole discretion of DHS, multiplied by the corresponding payment for completion of such services as set forth in the Contract. Alternatively, at the sole discretion of DHS, the

Contractor may be compensated for the actual service hours provided. DHS shall be entitled to a refund for goods or services paid for but not received or implemented, such refund to be paid within thirty (30) days of written notice to the Contractor requesting the refund.

41.4. Cancellation

DHS reserves the right to immediately cancel this Contract, in whole or in part, without penalty and without an opportunity for Contractor to cure if the Contractor:

a) Files a petition in bankruptcy, becomes insolvent, or otherwise takes action to dissolve as a legal entity;

b) Allows any final judgment not to be satisfied or a lien not to be disputed after a legally-imposed, 30-day notice;

c) Makes an assignment for the benefit of creditors;

d) Fails to follow the sales and use tax certification requirements of § 77.66 of the Wisconsin Statutes;

e) Incurs a delinquent Wisconsin tax liability;

f) Fails to submit a non-discrimination or affirmative action plan as required herein;

g) Fails to follow the non-discrimination or affirmative action requirements of subch. II, Chapter 111 of the

Wisconsin Statutes (Wisconsin’s Fair Employment Law);

h) Becomes a federally debarred Contractor;

i) Is excluded from federal procurement and non-procurement contracts;

j) Fails to…