Contract+334+-+signed.pdf

CONTRACT # RFP-504-23-001

NDHP LRMS TECHNOLOGY CONTRACT

1. PARTIES

The parties to this contract (Contract) are the state of North Dakota, acting through its North Dakota Highway Patrol (STATE), and Blackboard Inc., a corporation having its principal place of business at 5201 Congress Ave., Boca Roton, FL 33487 (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’s Data may be ascertainable.

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 1) can be used to distinguish or trace an individual’s identity, such as name, social security number, date and place of birth, mother’s maiden 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 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). Any software or infrastructure hosted outside the State of North Dakota’s environment.

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 the products and services outline in Exhibit A.

4. COMPENSATION-PAYMENTS

a. Contractual Amount

STATE shall pay for the accepted services provided by CONTRACTOR under this Contract an amount not to exceed $180,406.17 (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.

b. Retainage All deliverable payments shall be subject to 10 % retainage. Retained amounts due to CONTRACTOR shall be paid upon Final Acceptance.

c. 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.

d. 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 forty-five (45) calendar days after receipt of an approved invoice.

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

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

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

Payment for any travel expenses that exceed the travel budget as agreed upon by the Parties must be approved by STATE’s project manager.

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

g. 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.

h. Taxpayer ID CONTRACTOR’s federal employer ID number is: 52-2081178.

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

5. TERM OF CONTRACT

This Contract term (Term or Initial Term) begins on its Effective Date, and ends on June 30, 2025.

a. No Automatic Renewal This Contract will not automatically renew.

b. Renewal Option STATE may renew this Contract upon satisfactory completion of the Initial Term. STATE reserves the right to execute up to six (6) options to renew this Contract under the same terms and conditions for a period of twelve (12) months each (Renewal Term).

c. Extension Option STATE reserves the right to extend this Contract for an additional period, not to exceed twelve

(12) months, beyond the current termination date of this Contract.

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

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

6. TERMINATION

a. Termination by Mutual Agreement

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

b. Early Termination in the Public Interest

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

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

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

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

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

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

d. Termination for Cause.

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

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

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

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

7. SUSPENSION FOR CONVENIENCE

STATE shall have the right at any time to order the services of CONTRACTOR fully or partially stopped for STATE’s own convenience. 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.

8. FORCE MAJEURE

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

9. INJUNCTIVE RELIEF

CONTRACTOR shall immediately report to STATE any and all unauthorized disclosures or uses of STATE’s confidential information or proprietary information of which CONTRACTOR or its staff is aware or has knowledge. CONTRACTOR acknowledges that any unauthorized publication or disclosure of STATE’s confidential information or proprietary information to others may cause immediate and irreparable harm to STATE. If CONTRACTOR should publish or disclose such confidential information or proprietary information without authorization, STATE shall immediately be entitled to 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 attorneys’ fees) caused by or arising from CONTRACTOR’s unauthorized use or disclosure of STATE’s confidential 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.

10. 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.

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

If CONTRACTOR fails to deliver Deliverables or to provide Services which satisfy CONTRACTOR’s 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. STATE may withhold any invoiced line item amounts due hereunder if it, in good faith, disputes the item in a detailed writing within twenty (20) days of receipt of the invoice and promptly pays the undisputed amounts. CONTRACTOR reserves the right to cease work without prejudice if undisputed amounts are not paid within thirty (30) days after the date of the invoice.

CONTRACTOR may allocate payments received to fees and expenses in its sole discretion and STATE’s communications on or with payments shall not be construed as a novation.

12. RIGHT TO REMEDIES AND CUMULATION OF RIGHTS

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

13. NON-WAIVER

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

14. INDEMNIFICATION

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

17. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION

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

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

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

d. CONTRACTOR Indemnity Obligations. If a third party brings a claim, suit, or proceeding against STATE, STATE affiliates, or STATE employees, contractors, agents, or assigns (a “STATE Indemnitee”) resulting from CONTRACTOR negligence or willful misconduct, or alleging that any Products and Services infringe a U.S. or European patent or a copyright under Law of any jurisdiction in which you are using the applicable Products and Services, STATE must promptly notify CONTRACTOR in writing and make no admission in relation to such claims. Provided that STATE has fulfilled all of the foregoing obligations, CONTRACTOR shall at our own expense indemnify, defend, and hold harmless such Customer Indemnitee, and in the above case of alleged infringement, at CONTRACTOR expense and option (a) procure for STATE the right to use the Products and Services, (b) modify or replace the Products and Services to avoid infringement without materially decreasing the overall functionality of the Products and Services;

or (c) refund the applicable fee paid for the applicable Products and Services for the current term and STATE shall cease using such Products and Services. We shall have the sole and exclusive authority to defend and/or settle any such claim or action and you will provide assistance as we may reasonably request, at our expense, provided that we will keep you informed of, and will consult with any independent legal advisors appointed by you at your own expense regarding the progress of such defense. If the attorney hired by CONTRACTOR also represents STATE, the attorney must first qualify as and be appointed by the North Dakota Attorney General as a Special Assistant Attorney General as required under North Dakota Century Code section 54-12-08.

e. Exceptions. Notwithstanding Section 17 (d), CONTRACTOR Indemnity Obligations,, where: (a) infringement of a patent is caused by the combination of the Products and Services with other hardware, software, communications equipment, or other materials not provided by CONTRACTOR (or, in the case of a method claim, additional steps in addition to those performed by the Products and Services), CONTRACTOR shall only be obligated to indemnify the STATE if the Products and Services constitute a “material part of the invention” of the asserted patent claim and “not a staple article or commodity of commerce suitable for substantial non-infringing use” as those phrases are used in 35 U.S.C. § 271(c); or (b) there is a claim, suit, proceeding or allegation that STATE Property or other content generated by AI within the Products and Services infringes the intellectual property rights of a third party under the Law of any jurisdiction in which the STATE is using the applicable Products and Services, CONTRACTOR shall not be obligated to indemnify the STATE, or defend or hold the STATE harmless, in respect of such claim, suit, proceeding or allegation.

18. 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.

a. CONTRACTOR warrants that (a) the Software or SaaS Services licensed to the STATE will not contain any Software Errors (as defined below) for one year from delivery of the Software or for the term of the SaaS Services, respectively; (b) CONTRACTOR will perform Professional Services and Hosting Services in a professional manner in accordance with industry standards;

and (c) CONTRACTOR will comply with all Laws which govern the performance of CONTRACTOR’s obligations hereunder. For any breach of a warranty above which STATE promptly notifies CONTRACTOR of in writing, CONTRACTOR will exert commercially reasonable efforts to repair or otherwise remedy the non-conformity so that the warranty is materially complied with. With regard to breaches of subsections (a) or (b) above, CONTRACTOR’s remedy may include a code fix, a work around, or other modification. If CONTRACTOR is unable to remedy the non-conformity after a reasonable period of time, then STATE’s SOLE AND EXCLUSIVE REMEDY shall be: (i) for Professional Services or Hosting Services, to seek a refund of the fees paid for the un-remedied services; and (ii) for licensed Software or SaaS Services, to seek recovery of direct damages caused by the breach, subject to the limitation of liability below. These warranties by CONTRACTOR shall not apply if STATE materially breaches the Contract. “Software Error” means a failure of any Software or SaaS Services to materially conform to its applicable standard end user documentation provided by CONTRACTOR, if any (“Documentation”), provided that such failure can be reproduced and verified by CONTRACTOR using the most recent version (including all available updates, application packs, and releases) of such Software or SaaS Service made available to the STATE, and further provided that Software Errors do not include (a) any nonconformity to applicable Documentation caused by the STATE’s material breach of the Contract, or the STATE’s unauthorized modification or misuse of the Software or SaaS Services or (b) incorrect, unlawful, offensive or otherwise undesirable, to STATE and/or STATE’s Authorized Users, Output or other content generated by AI. It is the STATE’s responsibility to review Output and any other content generated by AI and make any corrections or modifications as it may be necessary or appropriate.

b. STATE warrants that: (a) STATE owns or has sufficient rights in and to the STATE Property in order for STATE and STATE Authorized Users to use, and permit use of, the Products and Services, including the representations and warranties made above in connection with Proprietary Rights and Personal Information, (b) STATE will comply with all Laws related to use of CONTRACTOR Products and Services; and (c) the person executing the Contract or any Order Form, Exhibit F, has authority to accept such Order Form, Exhibit F, and the Contract on behalf of STATE. The person signing specifically has the authority to commit to the payment of fees for excess usage and excess storage, calculated in accordance with this contract and any relevant order form. STATE further warrants that neither the STATE, nor any of its officers, directors, employees, or shareholders have been designated as an Entity That is Subject to Economic Sanctions, and that no Product or Services supplied by CONTRACTOR will be supplied to or otherwise benefit an Entity That is Subject to Economic Sanctions. The term “Entity That is Subject to Economic Sanctions” includes, but is not limited to, an entity that has been designated as a Specially Designated National by the United States Department of the Treasury, Office of Foreign Assets Control, a party designated for sanctions by any other Department or Agency of the Government of the United States, and a party designated by the United States National Security Council. The provision of any Products or Services to an Entity That is Subject to Economic Sanctions or the designation of STATE, or any of the STATE’s officers, directors, employees, or shareholders as an Entity That is Subject to Economic

Sanctions, or the U.S. designation of the region in which STATE is located as an embargoed country or region (including as a “Covered Region” pursuant to Executive Order 14065), shall be grounds for immediate termination of this Contract, and will relieve CONTRACTOR from any and all obligations with respect to this Contract.

c. Disclaimer of Other Warranties. Except for warranties expressly made herein, the products and services are provided “as is” and, to the maximum extent permitted by law, CONTRACTOR and CONTRACTOR’s licensors make no warranties or representations express or implied, either in fact or by operation of law, statutory or otherwise, including warranties of merchantability, satisfactory quality, fitness for a particular purpose, title, or non- infringement.

19. INSURANCE

a. 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:

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

2) Automobile liability, including Owned (if any), Hired, and Non-Owned automobiles, with minimum liability limits of $500,000 per person and $2,000,000 per occurrence.

3) 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.

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

5) Professional errors and omissions with minimum limits of $1,000,000 per claim and in the aggregate, CONTRACTOR shall continuously maintain such coverage during the Contract period and for three years thereafter. In the event of a change or cancellation of coverage, CONTRACTOR shall purchase an extended reporting period to meet the time periods required in this section.

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

1) Any deductible or self-insured retention amount or other similar obligation under the policies shall be the sole responsibility of the CONTRACTOR. The amount of any deductible or self-retention is subject to approval by the State.

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

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

4) 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.

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

6) 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.

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

8) 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.

20. CYBER LIABILITY AND SECURITY INSURANCE

In the event CONTRACTOR will host data, or provide for the hosting of data through a third-party entity, CONTRACTOR shall secure and maintain Cyber Liability and Security Insurance or equivalent insurance product(s), with minimum liability limits of not less than $5,000,000 and first party limits of not less than $1,000,000, that will provide, without cost to the CONTRACTOR or STATE, an immediate response in the event of a data breach, including meeting all notification obligations of CONTRACTOR and STATE and in the event the data breach involves personal information as defined by N.D.C.C. § 51-30-1(4), the insurance policy shall also make available free credit monitoring for any affected individual for a minimum period of one year. CONTRACTOR shall defend, indemnify, save and hold harmless, the STATE, its officers, agents and employees from liability of any nature or kind, including costs and expenses, on account of a data breach arising from CONTRACTOR hosting, transmission, or control of data, any and all suits, claims, or damages of any character whatsoever, resulting from injuries or damages sustained by any person or persons or property by virtue of performance of this Contract.

21. 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 STATE’s intellectual property rights under this section.

Subject to the limited rights expressly granted hereunder, CONTRACTOR and CONTRACTOR’s licensors or suppliers own all right, title and interest in and to each of the Products and Services, along with all related documentation, materials, content, and specifications, and all modifications, enhancements, improvements, and all derivative works thereto. CONTRACTOR also retains all right, title and interest to any work product or other intellectual property developed and/or delivered in connection with CONTRACTOR’s provision of any services or the performance of any obligations hereunder. Any intellectual property rights that CONTRACTOR does not expressly grant to STATE are expressly reserved by CONTRACTOR.

22. MUTUAL LIMITATIONS OF LIABILITY

a. Consequential Damages Limitation. To the maximum extent allowed under N.D.C.C. § 32-12.2- 15, in no event will either party or such party’s licensors be liable, even if advised in advance of the possibility, for: (a) any loss of business, contracts, profits, anticipated savings, goodwill or revenue; (b) any loss or corruption of data, or (c) any incidental, indirect or consequential losses or damages whatsoever (including, without limitation, special, punitive, or exemplary damages).

b. Mutual Limitations of Liability. Except for CONTRACTOR’s contractual and common law indemnity or contribution obligations and losses that cannot be limited under N.D.C.C. § 32.12.2-15, in no event shall either party’s or such party’s licensors’ cumulative liability for all claims arising from or relating to the Contract, regardless of the nature of the claim, exceed two

(2) times the amounts paid by STATE for the affected products and services during the twelve (12)-month period immediately prior to the first claim asserted hereunder. This limitation of liability is intended to apply without regard to whether other provisions of the Contract have been breached or have proven ineffective or have failed of their essential purpose.

c. Essential Basis. The parties agree that the warranty disclaimers, liability exclusions, indemnities, fees, and limitations of the Contract form an essential basis of the Contract.

d. Exclusive Remedy. Except for any other indemnification obligations provided in the Contract and common law indemnity or contribution obligations and losses which cannot be limited under N.D.C.C. § 32-12.2-15, the foregoing provisions of this section state the entire liability and obligations of each party, and the exclusive remedy of each party, with respect to claims by any third party.

23. TECHNOLOGY STANDARDS

CONTRACTOR shall comply with applicable STATE enterprise architecture technology standards.

These standards can be found on STATE’s website at https://www.ndit.nd.gov/standards. If CONTRACTOR is unable to comply with any applicable standard, a Request for Exemption from Information Technology Standards or Statutory Policies (SFN 51687) must be submitted in coordination with STATE and CONTRACTOR for the North Dakota Information Technology Department’s review and approval or disapproval.

24. PERSONNEL

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

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

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

CONTRACTOR.

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

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

https://www.ndit.nd.gov/standards

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

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

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

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

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

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

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

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

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

i. CONTRACTOR agrees that STATE may require any personnel CONTRACTOR assigns to perform work under this Contract, including employees, contracted staff, subcontractors, or other individuals, to submit to a criminal history record check in accordance with N.D.C.C. §12- 60-24, through the authority granted to the chief information officer of the STATE pursuant to N.D.C.C. § 54-59-20. STATE shall have the right to reject any individual CONTRACTOR assigns to perform work under this Contract if, in STATE’s sole discretion, it determines that the results of the criminal history record check make the individual unacceptable. CONTRACTOR agrees to be responsible for all costs associated with criminal history record checks carried out pursuant to this paragraph.

25. PROJECT MANAGEMENT

a. Reporting

1) The objective of the project management process is to support the completion of Deliverables (as defined below). CONTRACTOR will appoint a Project Manager (“PM”) that will be responsible for the overall engagement and delivery of the CONTRACTOR Services and Deliverables. CONTRACTOR’s PM will provide STATE with documentation, status reporting, and resource management with respect to the CONTRACTOR Services and Deliverables.

2) STATE shall identify and assign a resource to act as STATE’s project manager (“STATE PM”). CONTRACTOR PM shall act as the primary point of contact for the CONTRACTOR PM. The CONTRACTOR PM shall: (i) have full authority to make all required decisions regarding project scope, timeline, and cost; (ii) be authorized to assign appropriate STATE personnel and resources and be responsible for such resources performance; (iii) be http://www.legis.nd.gov/cencode/t54c59.pdf http://www.legis.nd.gov/cencode/t12c60.pdf http://www.legis.nd.gov/cencode/t12c60.pdf responsible for coordinating all meetings with CONTRACTOR, contractors or other third parties (as required); and (iv) provide STATE Deliverables, products, and information as required by CONTRACTOR.

b. Integrated Change Control Process

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

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

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

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

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

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

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

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

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

c. Deliverable Acceptance

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

2) After receipt of items in Paragraph 26(c)(1), STATE will have five (5) working days or a different period of time as is agreed to by the Parties, in which to accept or reject each item in writing. STATE will accept by signature. If STATE rejects it, STATE will specify in writing its grounds for rejection and CONTRACTOR shall use its best efforts to revise any issues for the deliverables to be acceptable to STATE within the following five (5) working days. If STATE rejects it a second time, STATE will have the option of repeating the procedure as described in this acceptance statement above, escalating the issue to Agency Head, or terminating this Contract upon written notice to CONTRACTOR.

d. Final Acceptance

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

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

3) STATE has 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.

26. PRODUCT CONFORMITY

STATE has twelve (12) months following Final Acceptance of the product(s) delivered by CONTRACTOR pursuant to this Contract to verify that the product(s) conform to the requirements of this Contract and perform according to CONTRACTOR system design specifications. Upon recognition of an error, deficiency, or defect, by STATE, CONTRACTOR shall be notified by STATE citing any specific deficiency (deficiency being defined as CONTRACTOR having performed incorrectly with the information provided by STATE, not CONTRACTOR having to modify a previous action due to additional and/or corrected information from STATE). CONTRACTOR, at no additional charge to STATE, shall provide a correction or provide a mutually acceptable plan for correction within thirty (30) calendar days following the receipt of STATE’s notice to CONTRACTOR. If CONTRACTOR’s correction is inadequate to correct the deficiency, or defect, or the error recurs, STATE may, at its option, act to correct the problem. CONTRACTOR shall be required to reimburse STATE for any such costs incurred or STATE may consider this to be cause for breach of contract.

27. WARRANTY

CONTRACTOR shall provide a thirty (30) day warranty upon Final Acceptance.

28. SOFTWARE LICENSE

Subject to STATE’s obligations under the Contract, CONTRACTOR grants the STATE a non-exclusive, non-transferable, non-sublicensable license to install and use one (1) production copy and one (1) Test Copy (as defined below) of the Software for one (1) installation at STATE’s Designated Server Site (as defined below) solely in the form of machine‐readable, executable, object code or bytecode, as applicable, and solely in connection with providing access to STATE Property, including content, to STATE Authorized Users and to use the Documentation in support of your authorized use of the Software. STATE agrees not to install or use any Software on any computer, network, system, or equipment other than on a Designated Configuration at the physical location where the Software will be installed, as identified in the Order Form, Exhibit F, (the “Designated Server Site”), except with CONTRACTOR prior written consent. The Software may access, use, or integrate Java Software.

29. SAAS AND DATA SECURITY

Remote access to Data from outside the continental United States, including remote access to Data by authorized support staff in identified support centers, is prohibited. If CONTRACTOR is unable to comply, a Request for Exemption from Information Technology Standards or Statutory Policies (SFN 51687) must be submitted in coordination with STATE and CONTRACTOR for the North Dakota Information Technology Department’s review and approval or disapproval.

30. RIGHTS OF ACCESS AND USE

a. License to Use SaaS Services or Hosting Services. With respect to SaaS Services or Hosting

Services, for the Term (as defined in Section 9.1), CONTRACTOR grants the STATE a non-exclusive, non-transferable, non-sublicensable license to access and use the SaaS Services (or, as applicable, Hosting Services) made available by CONTRACTOR to STATE on a remote-access, subscription basis via the Internet solely in support of STATE’s operations.

b. License to Use Software Provided on a Perpetual or Term Basis. With respect to Software, for the Term, or where a license is specified as “perpetual”, on an ongoing basis unless and until terminated as provided herein, CONTRACTOR grants the STATE a non-exclusive, non-transferable, non-sublicensable, license to use the Software on a Designated Configuration solely in support of STATE’s operations. A “Designated Configuration” shall mean a configuration of hardware and software which is supported by CONTRACTOR and on which the Software is operated by or for STATE, which may include a configuration on STATE’s premises, or a configuration managed by CONTRACTOR for the STATE.

c. License to Use Software Provided on a Perpetual or Term Basis. With respect to Software, for the Term, or where a license is specified as “perpetual”, on an ongoing basis unless and until terminated as provided herein, CONTRACTOR grants the STATE a non-exclusive, non-transferable, non-sublicensable, license to use the Software on a Designated Configuration solely in support of your operations. A “Designated Configuration” shall mean a configuration of hardware and software which is supported by the CONTRACTOR and on which the Software is operated by or for the STATE, which may include a configuration on STATE’s premises or a configuration managed by CONTRACTOR for the STATE.

d. Evaluation License. If the STATE is provided an Evaluation License, CONTRACTOR grants the STATE a limited, non-exclusive, non- transferable non-sublicensable license to install and use one (1) Evaluation copy of the Software, SaaS Services or Hosting Services, as applicable, (“Evaluation License”) subject to the obligations herein and solely in connection with STATE’s internal evaluation of the Software, SaaS Service or Hosting Services and not for any production or commercial purpose.

e. API License. If the STATE is purchasing an application programming interface ("API") license, other than a Learn API as defined below, CONTRACTOR grants the STATE a limited, non-exclusive, revocable, non-sublicensable, non-transferable license to access each API set forth in the Order Form, Exhibit F. The API(s) are provided in the form of a web service that enables a "connection" into CONTRACTOR’s servers. CONTRACTOR will provide the STATE with the information necessary to enable the STATE’s secure use of the API(s). The STATE may not use or install the API(s) for any other purpose without CONTRACTOR’s written consent, and may not copy, rent, adapt, disassemble, lease, assign, sublicense, reverse engineer, modify or decompile, the API(s) or any part thereof. The CONTRACTOR reserves the right to limit the number and/or frequency of API requests or take other actions necessary to protect the integrity of the CONTRACTOR’s services. The STATE shall not provide password or login access to any third party, including third-party developers, integrators, and contractors, for purposes of accessing the Products and Services. STATE and CONTRACTOR must both provide written permission for any third party to access the Products and Services on behalf of the STATE and only the CONTRACTOR may provide the access to the Products and Services to the third party.

If the CONTRACTOR grants access to such third party, the STATE shall ensure that the third party is expressly bound by the license and usage provisions of this Contract and is prohibited from creating commercially available products or services with any information obtained through the STATE’s access to the Products and Services.

f. Authorized Users. The STATE agrees to only grant access to the SaaS Services, Hosting Services, and/or Software to those individuals defined in the Terms Applicable to Specific Products and Services, below (“Authorized Users”).

g. License Restrictions. The STATE may not use the Software, Hosting Services, or SaaS Services beyond the usage, storage or other applicable limitations set forth in the Contract.