Initial+2020+signed+contract.pdf

Grants Management Solution

TECHNOLOGY CONTRACT

North Dakota Council on the Arts - Grants Management Solution

1. PARTIES

The parties to this contract (Contract) are the state of North Dakota, acting through its Council on the Arts (STATE), and Foundant Technologies, Inc., a C Corporation having its principal place of business at 143 Willow Peak Dr., Bozeman, MT 59718 (CONTRACTOR).

2. DEFINITIONS

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

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

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

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

e) Personally Identifiable Information (PII) - information about an individual maintained by an agency, including that en name, or biometric records; or (2) is linked or linkable to an individual, such as medical, educational, financial, and employment information.

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

g) 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.

h) Software as a Service (SaaS). The capability provided to the consumer applications running on a 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.

i) Users means 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 product and services as described in the Exhibit A.

4. COMPENSATION

a. Contractual Amount

STATE shall pay for the accepted services provided by CONTRACTOR under this Contract an amount not to exceed $22,000 (Contractual Amount). The Contractual Amount shall be paid according to the Compensation Details document attached as Exhibit B.

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.

CONTRACTOR offers a 90-day money-back guarantee on the cost of the software subscription from the date the subscription fee is paid by STATE, identified as payment milestone one in Exhibit B. Should the STATE be unsatisfied for any reason after the 90-day period, Foundant will provide a pro-rated refund for the remaining, unused portion of the software subscription fee.

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 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 thirty (30) calendar days after receipt of an approved invoice.

Payment 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.

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.

STATE shall pay a finance charge on any overdue payment hereunder of one and one-half percent (1.5%) for each month or portion thereof that such payment is overdue, or the highest interest rate permitted by applicable law, whichever is the lower. Interest shall compound monthly.

d. Travel

CONTRACTOR acknowledges travel expenses, if applicable, 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 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

20-8081996.

h. Purchasing Card

STATE may make a 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 dur

a. On site means Bismarck, ND.

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) begins on its Effective Date and ends on two (2) years after final acceptance.

a. No Automatic Renewal

This Contract will not automatically renew.

b. Extension Option

STATE reserves the right to extend this Contract for an additional period of time, not to exceed

(12) twelve months, beyond the current termination date of this Contract at a pro rata basis of the Contractual Amounts.

c. Renewal Option

STATE may renew this Contract upon satisfactory completion of the initial Contract term.

STATE reserves the right to execute up to five (5) options to renew this Contract under the same terms and conditions for a period of twelve (12) months.

d. Renegotiation Option

In view of the fact that it is unknown how long the products and services will be used by STATE and that STATE will require ongoing maintenance and support of the products for as long as the system is operational, therefore after completion of the initial Term of this Contract including any extensions and renewals, STATE and CONTRACTOR may renegotiate this Contract upon mutual agreement of the parties.

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 into 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 and continued at levels sufficient to allow for purchase of the services or supplies in the indicated quantities or term.

2) If federal or state laws or rules are modified or interpreted in a way that the 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. In addition, should STATE termination under this clause 7(c), CONTRACTOR shall be entitled to payment for services rendered or work performed and accepted by STATE, up to the date of 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 required by this Contract within the time specified or any extension agreed to 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 services of CONTRACTOR fully or partially STATE shall provide CONTRACTOR written notice of the reason for and duration of the suspension. The schedule shall be delayed on a day-for-day basis to the extent STATE has issued a stop work order to CONTRACTOR and such stop work order is causing delays in completing services in accordance with the schedule. CONTRACTOR shall have the right to submit claims in accordance with the terms of this Contract as a result of stop work orders issued under this section.

9. FORCE MAJEURE

A. Neither party shall be held responsible for delay or default caused by fire, riot, terrorism, acts of ives 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. Delay or default related to the COVID- 19 pandemic or quarantine may only be excused in accordance with subsection 9(B).

B. The Parties agree that any default or delay caused by the COVID-19 pandemic may only forgive any P Contract to the extent it is memorialized through a mutually agreed upon written amendment setting forth the cause, any anticipated duration, and all contractual provisions impacted. If either Party cannot resume performance as contemplated by such an amendment, the other Party may seek the remedies set forth in 9(A).

10. INJUNCTIVE RELIEF

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

11. RIGHT OF SETOFF DAMAGES

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

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

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

13. RIGHT TO REMEDIES AND CUMULATION OF RIGHTS

No remedy conferred by any of the specific provisions of this 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.

14. NON-WAIVER

is 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.

15. LIMITATION OF LIABILITY

(a) EXCEPT FOR DIRECT DAMAGES THAT CANNOT BE LIMITED UNDER N.D.C.C. § 32-12.2-

15, NEITHER PARTY SHALL BE LIABLE UNDER THIS CONTRACT TO THE OTHER OR ANY

THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR

CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS

OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR

CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY

OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN

CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF THE OTHER

PARTY HAS BEEN INFORMED OF THE POSSIBILITY THEREOF. STATE ASSUMES ALL

RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE AND DOCUMENTATION

USE AND RESULTS OF THE SOFTWARE OR WORK PRODUCT.

(b) EXCEPT FOR DIRECT DAMAGES THAT CANNOT BE LIMITED UNDER § 32-12.2-15, EACH

PARTY'S TOTAL LIABILITY FOR ANY LOSS, COST, CLAIM OR DAMAGES OF ANY KIND

ARISING OUT OF OR RELATED TO THE ORDER MADE UNDER THIS CONTRACT SHALL

NOT EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE BY STATE TO

CONTRACTOR UNDER SUCH ORDER DURING THE TWELVE (12) MONTHS PRIOR TO

THE EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES. THIS LIMITATION

ON LIABILITY WAS AND IS AN EXPRESS PART OF THE BARGAIN BETWEEN

CONTRACTOR AND STATE AND WAS A CONTROLLING FACTOR IN THE SETTING OF

THE FEES PAYABLE TO CONTRACTOR HEREUNDER. NOTHING IN THIS SECTION 6.3(B)

EITHER PARTY'S LIABILITY TO THE OTHER IN CONNECTION WITH AN INFRINGEMENT

OF SECTION 16.(a) OF THIS CONTRACT.

(c) STATE shall give CONTRACTOR the control of the defense of any Legal Action, shall act in accordance with the reasonable instructions of CONTRACTOR and shall give CONTRACTOR such assistance as CONTRACTOR reasonably requests to defend or settle such claim.

CONTRACTOR shall conduct its defense at all times in a manner which is not averse to STATE's interests. STATE may employ its own counsel to assist it with respect to any such claim. STATE shall bear all costs of engaging its own counsel, unless engagement of counsel is necessary because of a conflict of interest with CONTRACTOR or its counsel, or because CONTRACTOR fails to assume control of the defense. STATE shall not settle or compromise any Legal Action without CONTRACTOR's express written consent. CONTRACTOR cannot settle a Legal Action on STATE's behalf without STATE's prior consent, which shall not be unreasonably withheld. STATE's material failure to comply with this Section shall relieve CONTRACTOR of its indemnification obligation under Section 16.

16. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION

Subject to Section 15.(b), CONTRACTOR shall indemnify, defend and hold STATE harmless from any damages awarded against STATE (including, without limitation, reasonable costs and legal fees thereby incurred by STATE) arising out of any third-party suit, claim or other legal action alleging that the use of the Software by STATE as permitted hereunder infringes any copyright, trade secret or United States patent ("Legal Action"). Notwithstanding the foregoing, CONTRACTOR shall have no indemnification obligations with regard to any Legal Action arising out of: (i) combination of the Software with software or products not supplied, or approved in writing by CONTRACTOR; (ii) any repair, adjustment, modification or alteration to the Software by STATE or any third party, unless approved in writing by CONTRACTOR; (iii) any breach by STATE of its obligations under this Agreement; or (iv) any refusal by STATE to install and use a non-infringing version of the Software offered by CONTRACTOR and this Section state the entire liability of CONTRACTOR with respect to any intellectual property infringement by the Software.

17. REPRESENTATIONS AND WARRANTIES

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

18. 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 $1,000,000 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.

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 - A.M. Best Company, Inc., provided any excess policy follows form for coverage. Less than an A- oved 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 pany 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.

19. WORKS FOR HIRE

CONTRACTOR acknowledges that all work(s) under this Contract is "work(s) for hire" within the meaning of the United States Copyright Act (Title 17 United States Code) and hereby assigns to STATE all rights and interests CONTRACTOR may have in the work(s) it prepares under this Contract, including any right to derivative use of the work(s). All software and related materials developed by CONTRACTOR in performance of this Contract for STATE shall be the sole property of STATE, and CONTRACTOR hereby assigns and transfers all its right, title, and interest therein to STATE. CONTRACTOR shall execute all necessary documents to enable STATE to protect rights under this section.

20. 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.

21. TECHNOLOGY STANDARDS

CONTRACTOR shall comply with applicable STATE enterprise architecture technology standards.

http://www.nd.gov/itd/standards.

22. PERSONNEL

a. STATE will designate a Project Representative to serve as the primary contact for this Contract.

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

b. Unless STATE otherwise notifies CONTRACTOR, Project Representative shall carry Contract, shall be responsible for acceptance of the Contract deliverables, and shall provide support and overall direction to

CONTRACTOR.

c. CONTRACTOR will designate a Client Success Manager that will assist the STATE to meet the requirements and accomplish the work as stated in this Contract including any mutually agreed upon Scope of Work.

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

e. STATE's working hours are Monday through Friday from 8:00 AM until 5:00 PM (CT) with one hour for lunch. STATE Project Representative may approve alternate work schedules.

f. 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.

g.

leave days.

23. PROJECT MANAGEMENT

a. Reporting

1) Client Success Manager shall deliver to Project Representative, every other week objective/deliverables as stated in the Scope of Work. 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 Project Representative who will in turn provide it to relevant parties for assessment.

2) All change requests will be logged and tracked .

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 the services in accordance with the original Contract unless otherwise agreed upon by Project Representative. Work shall not commence on any new activities related to the change request until all parties agree in writing.

5) Client Success Manager and Project Representative will adapt the Project 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 23(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 via email, unless otherwise stated, communicating completion of the deliverable. 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 the Executive Steering Committee, 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 implemente

3) STATE has sixty (60) 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.

24. WARRANTY

CONTRACTOR shall provide a 90-day warranty upon Final Acceptance. Also see Section 4.

25. SOFTWARE LICENSE

(intellectual property owned by CONTRACTOR prior to performance of this Contract) shall remain ny work product provided to STATE, CONTRACTOR agrees to provide written notice to STATE of its incorporation in the work product and to convey to STATE a non-exclusive, perpetual, cost-free license, and patent and copyright indemnity, for STATE to use that software for its intended purpose.

26. NOTICE

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

STATE CONTRACTOR

Kim Konikow Aaron Bond Executive Director VP of Sales 1600 East Century Avenue, Suite 6 143 Willow Peak Dr Bismarck, ND 58503-0649 Bozeman, MT 59718

STATE shall give prompt written notice to CONTRACTOR of any Legal Action within thirty (30) days of its first knowledge thereof and shall furnish copies to CONTRACTOR of all communications, notices and/or other actions relating to any Legal Action. Notice provided under this provision does not meet the notice requirements for monetary claims against STATE. Such requirements are outlined in N.D.C.C § 32-12.2-04.

27. 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.

28. COMPLIANCE WITH PUBLIC RECORDS LAWS

CONTRACTOR understands that, section of this Contract, STATE must disclose to the public upon request any records it receives from CONTRACTOR. CONTRACTOR further understands that any records obtained or generated by CONTRACTOR under this Contract may, under certain circumstances, be open to the public upon request under the North Dakota public records law. CONTRACTOR agrees to contact STATE promptly upon receiving a request for information under the public records law and to comply with

29. 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 under this Contract, except to the extent specified in this Contract.

30. ASSIGNMENT AND SUBCONTRACTS

CONTRACTOR may not assign or otherwise transfer or s express written consent, provided, however, that CONTRACTOR may assign its rights and obligations hereunder 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 without cause.

CONTRACTOR may enter into 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.

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

b. 110.7-20-061 dated July 17, 2020;

c. 110.7-20-061, dated July 10, 2020;

d. July 22, 2020 in response to RFP number 110.7-20-61.

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.

32. 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.

33. 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.

34. ALTERNATIVE DISPUTE RESOLUTION JURY TRIAL

By entering into 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.

35. 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.

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 at all times during the Term of this Contract all licenses and permits required by law.

CON

CONTRACTOR entitling STATE to terminate in accordance with the Termination for Cause section of this Contract.

36. STATE AUDIT

All financial records ng systems, regardless of physical form, and the accounting practices and procedures of CONTRACTOR relevant to this Contract are auditors, if required. CONTRACTOR shall maintain all of these records for at least three (3) years following completion of this Contract and be able to provide them upon reasonable notice. STATE, designee shall provide reasonable notice to CONTRACTOR prior to conducting examination.

EXHIBIT A Scope of Work

1. ACCEPTANCE PROCESS

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

2. DELIVERABLE 1: PROJECT KICKOFF MEETING

a. Description CONTRACTOR shall coordinate with STATE to schedule a web-based Kickoff Meeting with the core project team. CONTRACTOR shall lead the meeting. The Kickoff Meeting must facilitate the introduction of CONTRACTOR and STATE core project team members and level-set understanding and awareness of project objectives, scope, governance, schedule and project risks and issues.

b. Expectations of CONTRACTOR

1) CONTRACTOR shall collaborate with STATE and provide agenda to attendees in advance of the meeting.

2) CONTRACTOR and STATE shall facilitate the meeting, discuss, and further define the following:

i. Effective project communication

ii. Project vision, background, purpose, and objectives

iii. Project roles and responsibilities

iv. Requirements gathering and planning

c. Expectations of STATE

1) STATE shall coordinate the logistics and co-facilitate the Kickoff Meeting.

2) including identified system administrators shall participate in the Kickoff Meeting.

d. Completion Date CONTRACTOR shall start work with STATE to schedule the Kickoff Meeting as mutually agreed upon between the STATE and CONTRACTOR.

e. Acceptance Criteria For the acceptance of this deliverable to occur, the Kickoff Meeting results in:

1) Facilitation of Kickoff Meeting utilizing a clearly defined agenda

2) An introduction of CONTRACTOR and STATE personnel resources assigned to the project

3) Review of the project purpose, business objectives, project responsibilities, roles, and scope

4) Discussion of communications approach and structure

3. DELIVERABLE 2: PROJECT PLAN

a. Description CONTRACTOR shall participate, contribute, and collaborate with STATE, to develop a baseline Project Plan that encompasses training, configuration, and implementation and includes a project schedule.

b. Expectations of CONTRACTOR

CONTRACTOR shall participate, contribute, and collaborate with STATE, led by STATE to develop a baseline Project Plan. The Project Plan will include the following:

1) Management plans to control scope, schedule, cost, and quality

2) Roles and responsibilities of the project team

3) An integrated change control process

4) A communication management plan

5) Transition plan

6) Detailed project schedule

Representative shall collaborate with CONTRACTOR on the project planning effort.

d. Completion Date CONTRACTOR shall work with STATE to create the Project Plan. The Project Plan shall follow a mutually agreed upon plan and will be completed at the conclusion of the planning phase.

e. Acceptance Criteria For the acceptance of this deliverable to occur, CONTRACTOR shall provide a Project Plan regarding all services, tasks, and products delivered by CONTRACTOR which shall include:

1) Mutually agreed upon management plans to control scope, schedule, cost, and quality

2) Roles and responsibilities of the project team

3) An integrated change control process

4) A communication management plan

5) Transition plan

6) Detailed project schedule

4. DELIVERABLE 3: SOFTWARE CONFIGURATION, SUPPORT, AND TRAINING

CONTRACTOR and STATE shall configure the system according to the requirements established during the Analysis phase, and decisions made throughout the configuration effort.

b. Expectations of CONTRACTOR

Contractor will guide the configuration effort in collaboration with the STATE. CONTRACTOR will assist the STATE in configuring:

1) Grant Lifecycle Manager (GLM) software

2) Role-based security access

3) Look and feel of system such as logo updates and color scheme

4) Features that can only be turned on or edited by CONTRACTOR

1) STATE shall be responsible for all configuration steps, excluding training and configuration steps that can only be done by CONTRACTOR.

2) STATE shall provide requested information and documentation as needed to configure the system.

d. Acceptance Criteria For the acceptance of this deliverable to occur, the following criteria shall be met, STATE shall demonstrate an understanding of how to perform the following items:

1) Configure the software

2) Configure role-based security access

3) Configure grant management programs

5. DELIVERABLE 4: TESTING SUPPORT

CONTRACTOR shall support STATE testing efforts and assist STATE with making fixes during

b. Expectations of CONTRACTOR CONTRACTOR shall provide the following resources to support testing by STATE.

1) CONTRACTOR shall provide a testing site to be used by STATE to identify, troubleshoot, and resolve issues.

2) CONTRACTOR shall provide technical assistance with testing, verification, and classification of issues.

c. Expectations of STATE

1) STATE shall lead the testing effort and issue resolution process.

2) STATE shall ensure STATE testing occurs according to the project schedule, and test results and resolutions are documented.

3) STATE shall provide adequate and knowledgeable system users to participate in testing.

4) STATE shall perform user acceptance testing.

5) STATE shall perform application performance testing.

6) STATE shall document any identified issues, assign priority and severity, and provide results to CONTRACTOR for troubleshooting.

d. Acceptance Criteria For the acceptance of this deliverable to occur, the following criteria shall be met:

1) Completion of system testing by STATE.

2) Completion of user acceptance testing support by CONTRACTOR.

3) Testing issues are resolved.

6. DELIVERABLE 5: TRAINING AND DOCUMENTATION

CONTRACTOR will create a Training Plan and will provide training to the administrators of the system and support training of other users. STATE is responsible for all other user training.

b. Expectations of CONTRACTOR CONTRACTOR shall create a Training Plan with STATE support.

1) CONTRACTOR shall conduct working session(s) with STATE to review and finalize the Training Plan during the Project Kickoff Meeting.

2) CONTRACTOR shall coordinate with STATE to schedule all training activities.

3) CONTRACTOR shall provide access to up-to-date and accurate user tutorials (written and video).

4) CONTRACTOR shall provide a training syllabus to STATE for review and feedback in advance of the training.

5) CONTRACTOR shall provide qualified instructor.

6) CONTRACTOR shall conduct training sessions at a mutually agreed upon time. Training sessions will be web-based.

c. Expectations of STATE

1) STATE shall actively participate in planning sessions.

2) STATE shall review and provide feedback on the training syllabus to verify that desired areas are part of the training.

3) STATE shall make assigned trainees available for the scheduled training sessions.

4) STATE shall provide training equipment as needed.

d. Acceptance Criteria For the acceptance of this deliverable to occur, the following criteria shall be met:

1) Description of training session(s).

2) Identification of roles and responsibilities, intended audience, and training objectives.

3) Identification of agreed-upon high-level timing and approach for training.

4) Training approach and execution is in alignment with the Training Plan.

5) Provide access to user tutorials (written and video).

6) Completion of training in accordance with the syllabus.

7. DELIVERABLE 6: IMPLEMENTATION

CONTRACTOR shall collaborate with STATE to create an Implementation and Transition Plan to manage the implementation of the software. CONTRACTOR shall provide technical support to STATE as needed for implementation efforts.

b. Expectations of CONTRACTOR

1) CONTRACTOR and STATE shall collaborate the planning effort.

2) CONTRACTOR shall create an Implementation and Transition plan with STATE support.

3) CONTRACTOR shall participate, contribute, and collaborate with STATE for implementation preparations.

4) CONTRACTOR shall provide technical support to STATE as needed for implementation efforts.

c. Expectations of STATE

1) STATE shall actively participate in planning sessions.

2) STATE shall provide support and make any necessary decisions.

3) STATE shall review and provide feedback to CONTRACTOR.

4) STATE shall participate, contribute, and collaborate with CONTRACTOR for implementation preparations.

d. Acceptance Criteria For the acceptance of this deliverable to occur, the following criteria shall be met:

1) Implementation strategy.

2) Implementation resources and tasks.

3) Transition resources and tasks.

4) CONTRACTOR support during implementation.

5) System go live with no unresolved issues.

8. DELIVERABLE 7: CLOSEOUT MEETING AND FINAL ACCEPTANCE

CONTRACTOR shall coordinate with STATE to schedule a web-based Closeout Meeting with the core project team. CONTRACTO The Closeout Meeting must facilitate discussion of the project closeout.

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

b. Expectations of CONTRACTOR

1) CONTRACTOR shall provide a detailed agenda to STATE in advance of the meeting.

2) CONTRACTOR will work with STATE to gather required information for meeting.

3) CONTRACTOR shall address any outstanding issues or completion of deliverables.

c. Expectations of STATE

1) STATE shall alert CONTRACTOR to any outstanding issues.

2) STATE shall coordinate the logistics and participate in the Closeout Meeting as needed.

d. Acceptance Criteria For the acceptance of this deliverable to occur, the following criteria shall be met:

1) Completion and confirmation of the Closeout meeting.

2) No outstanding or unfinished deliverables.

3) No outstanding project or software issues.

EXHIBIT B Compensation Details

1. PROJECT DELIVERABLE PAYMENT SCHEDULE:

The following table defines all payment points.

Payment Milestone Deliverable

Deliverable Value

To be Retained

(0%) Invoice

Partial Annual Subscription Fee

$8,750

$0

2 1 - Project Kickoff Meeting

2 - Project Plan

3 Software Configuration/Installation

4 Testing Support

5 - Training and Documentation

6 - Implementation

7 Closeout Meeting and Final Acceptance

$4,500

$4,500

Remaining Annual Subscription Fee (for a total of a 2-year period) - Due upon Final Acceptance

PROJECT TOTAL $22,000 $22,000

2. PROJECT TOTAL

The total budget for the project portion of this Contract is $22,000.