6789 OF Cigarette Tax Stamp - Ashton Potter - Bid.pdf

State of Nebraska ITB 6789 OF June 28, 2023

Proposal for the

State of Nebraska

Department of Revenue

Invitation To Bids (ITB)

6789 OF

Cigarette Tax Stamps

Ashton-Potter (USA) Ltd.

10 Curtwright Drive Williamsville, New York 14221-7072 USA

Contact: Mr. Garth Zambory, Director of Sales, Government Documents Phone: +1 (571) 276-3930 Fax: +1 (716) 633-2525 Email: gzambory@ashtonpotter.com

Restriction: This Proposal includes data that may not be duplicated, used, or disclosed outside the State of Nebraska and may not be duplicated – in whole or in part – for any purpose other than to evaluate this Proposal.

If, however, a contract is awarded to this tenderer as a result of – or in conjunction with – the submission of such data, the State of Nebraska will have the right to duplicate, use, or disclose the data to the extent provided in the resulting contract. This restriction does not limit the State of Nebraska’s right to use information contained in the data if it is obtained from another source without restriction. The data subject to this restriction is identified with the restriction clause on each applicable sheet.

Use or disclosure of data contained on this sheet is subject to the restriction on the title page of this Proposal for

Cigarette Tax Stamps

Table of Contents Page

Introduction 3 Attachment A – Ashton Potter Client List for Heat Applied Tax Stamps 6 Attachment B – References from the Industry 7 Attachment C – Sections 2 through 5 of ITB 11 Attachment D – Section 6 of ITB 25

Use or disclosure of data contained on this sheet is subject to the restriction on the title page of this Proposal for

Cigarette Tax Stamps

1. Introduction

Ashton-Potter (USA) Ltd. (“Ashton Potter”) is pleased to have the opportunity to respond to the Invitation To Bid (“ITB”) #6789 OF for Cigarette Tax Stamps (“Tax Stamps”) for the State of Nebraska Department of Revenue (“State” and/or “Agency”).

Ashton Potter acknowledges Addendums #1, #2 and #3 that were issued for this solicitation.

Ashton Potter was formed in the 1920’s and over the past 50 years has become one of the world's largest high-quality secure stamp and label manufacturers and produces a wide range of security printing products and support services. Ashton Potter’s core specializations include:

• High security printing solutions for:

o Excise, fiscal, revenue and tax stamps for governments worldwide

• Fusion (also known as heat applied) and pressure-sensitive (“PSA”) formats o Secure vital record documents o Postage stamps and related products for postal Administrative Services o Security printed products for government and industry o ProLinc®, an advanced SaaS-based software solution for track and trace and MES applications

Since 1991, Ashton Potter has been a key supplier for the United States Postal Service’s (“USPS”) Stamp Program. This is the largest stamp program in the world with a high standard of baseline technical requirements for its products and services which includes past performance, Quality Assurance, security and accountability, a broad range of production capabilities and capacities, management and organizational skills, technical prowess and support and training. It is worth noting that during the COVID-19 pandemic, Ashton Potter was classified as an essential business by its government customers and the State of New York. This enabled Ashton Potter to make all client deliveries on schedule.

Ashton Potter operates two highly secure state-of-the-art facilities in Williamsville, New York where all production is performed and virtually all purchased materials are sourced from US owned and/or based companies. At these facilities, over 12 billion PSA stamps and secure labels are produced annually with capacity for over 20 billion annually. Ashton Potter supplies 50% of the postage stamps in the United States and collectively with international customers produce 25% of the world’s total postage stamp volumes. In addition, several foreign government security documents including tax stamps are produced at these facilities.

10 Curtwright, Williamsville, New York, USA 40 Curtwright, Williamsville, New York, USA

Use or disclosure of data contained on this sheet is subject to the restriction on the title page of this Proposal for

Cigarette Tax Stamps

The decision to enter the United States heat applied tax stamp market follows Ashton Potter’s traditional approach of robust business development, capital investment and long-term commitment and has resulted in a tax stamp product which meets or exceeds the performance of other tax stamps currently available. Ashton Potter’s Tax Stamps have been tested and certified by both leading manufacturers of cigarette tax stamp application machines. In short, Ashton Potter is fully committed to bringing existing knowledge and expertise to this market. We are committed to working with government agencies to provide the best quality product and superior customer support. Since entering the market, Ashton Potter has distinctively become the fastest growing supplier of heat applied tax stamps in the United States.

Ashton Potter is fully committed to this market, unlike some previous suppliers who ceased supply after a few years.

Ashton Potter firmly believes that once a stamp is transferred from the carrier paper to a package of cigarettes that’s where it should securely stay to be validated in the field by trained inspectors. To this end our stamps have been designed with an aggressive adhesive to do just that; keep the Tax Stamp adhering to the cigarette package and not flaking off in the field after application.

Ashton Potter’s strength lies in the ability to cost effectively manage large, single-award, multi-year, multi-product contracts and programs for a range of customers worldwide. Encompassing a commitment to investment and considerable printing and finishing capacity, has enabled production levels to continually grow, customer base to broaden and product offerings to develop and expand into adjacent high security markets.

Ashton Potter has considerable printing experience and capabilities related to the manufacturing of security products and its high security manufacturing facilities offers a broad range of print methods including web offset, intaglio, flexography, gravure, rotary screen and digital in roll/coil, sheet and booklet formats. In addition, Ashton Potter offers its customers state-of-the-art digital prepress, in-house platemaking, a wide range of finishing technologies, secure technology manufacturing, automated processes, 100% electronic inspection, modern security and accountability systems and secure material destruction.

Since 1998, Ashton Potter has produced billions of excise, revenue and tax stamps for a number of foreign governments and most recently the addition of Fusion tax stamps for US state and local governments. In addition to Fusion tax stamps, Ashton Potter’s experience includes intaglio, intaglio-offset combination and all offset printed which are used on a range of tobacco and alcohol products as well as soda, beer, and water. Current offerings have established extensive experience with different substrates including water activated gum (“WAG”), PSA, dry and formats including rolls and sheets which must be compatible with a variety of different surfaces (plastic, glass, cellophane etc.) and environmental conditions. Further, many existing contracts require support with supply chain track and trace software using QR codes making these stamps significantly more complex than Fusion tax stamps to produce. Given the range and large volume of stamps of all types produced over the years it is worth noting Ashton Potter has not received any material complaints from any of its customers for these tax stamp products.

Use or disclosure of data contained on this sheet is subject to the restriction on the title page of this Proposal for

Cigarette Tax Stamps

Ashton Potter takes security and quality very seriously. Ashton Potter operates a Quality Management System which is certified to ISO 9001:2015 (re-certified in 2022) and both of its facilities are ISO 14298 and NASPO International (“NASPO”) Class II certified for security printing management (re-certified in 2023). Currently, Ashton Potter is the only manufacturer of heat applied tax stamps for the US market with these certificates while also holding facility security approvals from several Federal Government agencies and departments which are audited annually.

Ashton Potter’s current client list for heat transfer Tax Stamps along with reference letters from Redstamp, USI and the Virginia Wholesaler and Distributor Association are included as an Attachment to this Proposal.

Ashton Potter currently holds contracts with several States for heat transfer Tax Stamps where we ship both to the State and Direct-To-Distributors.

Ashton Potter is currently under contract and providing heat applied Tax Stamps to the Commonwealths of Pennsylvania and Kentucky, the States of Texas, Maine, Kansas and New Mexico as well as over 45 counties and municipalities in the Commonwealth of Virginia and the State of Alabama. A current list of our clients can be found in an Attachment to this Proposal. All work is performed in our two state-of-the-art secure facilities which are ISO 9001:2015, NASPO ISO 14298, NASPO Class II Surveillance and USPS Standard 22 certified, without the use of subcontractors. Ashton Potter is a leading, high-technology security printer that designs, manufactures, and implements combinations of overt, covert and forensic security solutions. Its products are used by U.S. Federal and State agencies, foreign governments and large corporations to combat counterfeiting, protect their brands, comply with regulatory agencies and ensure product safety. It then leverages its multiple presses and capabilities in all major printing methodologies.

Use or disclosure of data contained on this sheet is subject to the restriction on the title page of this Proposal for

Cigarette Tax Stamps

ATTACHMENT A – Ashton Potter Client List for Heat Applied Tax Stamps Fusion Heat Applied Cigarette Tax Stamp Clients

US STATE GOVERNMENTS

• State of Kansas (Direct to Distributor shipping)

• Commonwealth of Kentucky

• State of Maine

• State of New Mexico (split contract with Meyercord Revenue)

• Commonwealth of Pennsylvania

• State of Texas

COUNTIES WITHIN THE COMMONWEALTH OF VIRGINIA

Caroline County James City County King George County Montgomery County Page County Tazewell County

CITIES WITHIN THE COMMONWEALTH OF VIRGINIA

Bristol Franklin Hampton Harrisonburg Lexington Lynchburg Newport News Norton Petersburg Portsmouth Radford Roanoke Salem Suffolk Virginia Beach Waynesboro Williamsburg

TOWNS WITHIN THE COMMONWEALTH OF VIRGINIA

Amherst Big Stone Gap Blacksburg Blackstone Bluefield Christiansburg Clifton Forge Crewe Elkton Gate City Gordonsville Goshen Grundy Honaker Lebanon Luray Pound Rich Creek Richlands Rocky Mount South Hill Stanley Stephens City Tappahannock Tazewell Weber City Windsor Wise Woodstock

JURISDICTIONS WITHIN THE STATE OF ALABAMA

Alabaster Baldwin County Citronelle Daleville Greenville Lauderdale County Millry

Use or disclosure of data contained on this sheet is subject to the restriction on the title page of this Proposal for

Cigarette Tax Stamps

ATTACHMENT B – References from Industry

3800 Patterson Ave SE, Grand Rapids, MI 49512 616-878-7771 www.redstampinc.com

April 13, 2023

To whom it may concern, Redstamp Inc. is a leading manufacturer of cigarette tax stamping equipment that is used by authorized wholesalers across the country to, among other things, apply excise tax stamps to packs of cigarettes.

Redstamp and Ashton Potter have worked cooperatively to ensure that the Ashton Potter excise tax stamps and Redstamp tax stamping solutions are compatible. In addition, Redstamp has certified that the Ashton Potter stamps tested perform at or above industry standards for application and quality.

In addition, Ashton Potter has proven to be a diligent and cooperative partner in supporting the State’s and authorized distributors engaged in excise tax stamping.

I appreciate your consideration of this letter and would welcome an opportunity to directly answer any questions regarding our endorsement of Ashton Potter.

Tim Vetter President and CEO Redstamp Inc.

4/17/2023

To Whom It May Concern, United Silicone Inc builds sales and services thermal cigarette tax stamp machines for the application of thermal and digital stamps being affixed to cigarette tobacco products. Our equipment is throughout North America in both large and small distributors.

Ashton Potter Thermal Stamps, currently on the market, have been tested and are being used with highly favorable results for adhesion, transfer, and durability onto cigarette packs at multiple locations in NA.

Ashton Potter Thermal Stamps are compatible with all United Silicones Thermal Tax Stamp Machines.

Please feel free to contact me if you have any questions, are concerns.

Sincerely, Lee Humphries

Lee Humphries NA Sales and Service Manager United Silicone Inc.

919-842-7643 lhumphries@itwids.com

March 2022

To Whom it May Concern

The Virginia Wholesalers & Distributors Association (VWDA) represents member distributors and wholesalers in Virginia representing over 86% of the tobacco market.

These members are active in the application of cigarette tax stamps from over 150 local jurisdictions and 4 regional tax boards.

In 2020, a number of members brought to the attention of VWDA, a new entrant into the heat applied cigarette tax stamp industry named Ashton-Potter (USA) Ltd. (Ashton Potter) headquartered in Williamsville, NY. VWDA reached out to Ashton Potter and from the outset, Ashton Potter has shown full support for VWDA initiatives and its members and as an Associate member has been a valuable resource for local tax stamping issues.

On the rare occasion when one of our members experienced difficulty with Ashton Potter’s tax stamps, they have taken a very proactive and timely approach to support and rectify the problem and minimize the impact of any potential stamping disruption to our members, which is of paramount importance. Ashton Potter keeps both our members and VWDA informed of their actions, plans for resolution which, if necessary, include an on-site visit.

We are looking forward to continuing our relationship with Ashton Potter and the valuable contributions they make to VWDA as an Associate Member.

Regards

Jeff D. Smith, III

Executive VP

Virginia Wholesalers and Distributors Association

Use or disclosure of data contained on this sheet is subject to the restriction on the title page of this Proposal for

ATTACHMENT C – Sections 2 through 5 of the ITB

II. TERMS AND CONDITIONS

INVITATION TO BID

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Bidders should complete Section II through VII as part of their bid. Bidder is expected to read the Terms and Conditions and must initial either accept, reject, or reject and provide alternative language for each clause. The Bidder should also provide an explanation of why the Bidder rejected the clause or rejected the clause and provided alternate language using "Track Changes". Upon request an electronic copy of the bid with "Track Changes" must be submitted in an editable Word format. By signing the solicitation, Bidder is agreeing to be legally bound by all the accepted Terms and Conditions, and any proposed alternative Terms and Conditions submitted with the bid. The State reserves the right to negotiate rejected or proposed alternative language. If the State and Bidder fail to agree on the final Terms and Conditions, the State reserves the right to reject the bid. The State is soliciting bids in response to the solicitation. The State reserves the right to reject bids that attempt to substitute the Bidder's commercial contracts and/or documents for this solicitation.

The Bidder should submit with their bid any license, user agreement, service level agreement, or similar documents that the Bidder wants incorporated in the Contract. Upon notice of Intent to Award, the Bidder must submit a copy of these documents in an editable Word format. The State will not consider incorporation of any document not submitted with the Bidder's bid. These documents shall be subject to negotiation and will be incorporated as addendums if agreed to by the Parties.

If a conflict or ambiguity arises after the addendums have been negotiated and agreed to, the addendums shall be interpreted as follows:

1. If only one (1) Party's document has a particular clause, then that clause shall control;

2. If both Party's documents have a similar clause, but the clauses do not conflict, the clauses shall be read together;

3. If both Party's documents have a similar clause, but the clauses conflict, the State's clause shall control.

A. GENERAL

Accept (Initial)

Reject (Initial)

Reject & Provide Alternative

R nee Initial

NOTES/COMMENTS:

The contract resulting from this solicitation shall incorporate the following documents:

1. 1TB and Addenda;

2. Amendments to the solicitation;

3. Questions and Answers;

4. Bidder's bid response;

5. The executed Contract and any Addenda, if applicable, and properly submitted documents; and,

6. Amendments to the Contract

Unless otherwise specifically stated in a future contract amendment, in case of any conflict between the incorporated documents, the documents shall govern in the following order of preference with number one (1) receiving preference over all other documents and with each lower numbered document having preference over any higher numbered document: 1) Amendment to the executed Contract with the most recent dated amendment having the highest priority, 2) executed Contract and any attached Addenda, 3) Amendments to bid and any Questions and Answers, 4) the original bid document and any Addenda, and

5) the Bidder's submitted Bid. Any ambiguity or conflict in the contract discovered after its execution, not otherwise addressed herein, shall be resolved in accordance with the rules of contract interpretation as established in the State.

B. NOTIFICATION

Accept Reject Reject & Provide

Alternative (Initial) (tnltlal)

Reanonse llnltlall

NOTES/COMMENTS:

Communication regarding the executed contract shall be given in writing and deemed to have been delivered via email to the specified Contract Contact information provided on the submitted 1TB form with the submitted bid(s). The Vendor should send written notice to the SPB. The State will send notices to the authorized contact provided on the 1TB form. Either party may change its address for notification purposes by giving notice of the change and setting forth the new address and an effective date.

SPB 1TB Boilerplate I 07/01/2019

C. PCO REPRESENTATIVE

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The State reserves the right to appoint a PCO's Representative to manage [or assist the PCO in managing] the contract on behalf of the State. The PCO's Representative will be appointed in writing, and the appointment document will specify the extent of the PCO's Representative authority and responsibilities. If a PCO's Representative is appointed, the Bidder will be provided a copy of the appointment document and is expected to cooperate accordingly with the PCO's Representative. The PCO's Representative has no authority to bind the State to a contract, amendment, addendum, or other change or addition to the contract

D. GOVERNING LAW (Statutory) Notwithstanding any other provision of this contract, or any amendment or addendum(s) entered into contemporaneously or at a later time, the parties understand and agree that, (1) the State of Nebraska is a sovereign state and its authority to contract is therefore subject to limitation by the State's Constitution, statutes, common law, and regulation; (2) this contract will be interpreted and enforced under the laws of the State of Nebraska; (3) any action to enforce the provisions of this contract must be brought in the State of Nebraska per state law; (4) the person signing this contract on behalf of the State of Nebraska does not have the authority to waive the State's sovereign immunity, statutes, common law, or regulations; (5) the indemnity, limitation of liability, remedy, and other similar provisions of the final contract, if any, are entered into subject to the State's Constitution, statutes, common law, regulations, and sovereign immunity; and, (6) all terms and conditions of the final contract, including but not limited to the clauses concerning third-party use, licenses, warranties, limitations of liability, governing law and venue, usage verification, indemnity, liability, remedy or other similar provisions of the final contract are entered into specifically subject to the State's Constitution, statutes, common law, regulations, and sovereign immunity. The Parties must comply with all applicable local, state, and federal laws, ordinances, rules, orders, and regulations.

E. AMENDMENT

This Contract may be amended in writing, within scope, upon the agreement of both parties.

F. SUBSTITUTIONS

Accept (Initial)

Reject (Initial)

Reject & Provide Alternative

Resnonte OnltlaD

NOTES/COMMENTS:

NOOR reserves the right to alter the stamp design and/or colors at any time during the contract term, including Renewals, Amendments and Extension, which will be considered a substitution. The substitution may or may not include a price Increase. The price increase for the substitution will only Include the elements of the change of stamp design and/or colors. The substitution and the possible price Increase will not go into effect until a written agreement Is made between the State and the Vendor and an Amendment has been signed and posted with the current contract.

If the Vendor requests to substitute any contracted Item and the substitute meets or exceeds the original specifications, the State may accept or reject the substitution.

If the Vendor requests to substitute any contracted item, which meets or exceeds the original specifications, and the cost of the substitute Is higher, the State may accept or reject the substitution and price change.

If the State and the Vendor do not agree to the requested substitution and price change, the Contract may be terminated immediately by the State.

In the event any product is discontinued or replaced upon mutual consent and prior to delivery during the Contract Period the State reserves the right to amend the contract or purchase order to include the alternate product at the expense of the awarded bidder.

*-Bidder will not substitute any item that has been awarded without prior written approval of SPB-

G. VENDOR PERFORMANCE REPORT(S)

Accept (lnltlal)

Reject (lnltlaf)

Reject• Provide Alternative

Res nee Initial

NOTES/COMMENTS:

The State may document any instance(s) of products or services delivered or performed which exceed or tail to meet the terms of the purchase order, contract, and/or 1TB specifications. The SPB may contact the Vendor regarding any such report. Vendor performance report(s) will become a part of the permanent record of the Vendor.

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H. NOTICE OF POTENTIAL BIDDER BREACH

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Accept (Initial)

Reject (Initial)

Reject & Provide Altem•tlve

Rn nae Initial

NOTES/COMMENTS:

If Bidder breaches the contract or anticipates breaching the contract, the Bidder shall immediately give written notice to the State. The notice shall explain the breach or potential breach, a proposed cure, and may include a request for a waiver of the breach if so desired. The State may, in its discretion, temporarily or permanently waive the breach. By granting a waiver, the State does not forfeit any rights or remedies to which the State is entitled by law or equity, or pursuant to the provisions of the contract. Failure to give immediate notice, however, may be grounds for denial of any request for a waiver of a breach.

I. BREACH

Accept (Initial)

Reject (Initial)

Reject & Pn:,vlde Alternative

Res lnltlal

NOTES/COMMENTS:

Either Party may tenninate the contract, in whole or in part, if the other Party breaches its duty to perform its obligations under the contract in a timely and proper manner. Termination requires written notice of default and a thirty (30) calendar day (or longer at the non-breaching Party's discretion considering the gravity and nature of the default) cure period. Said notice shall be delivered by Email or Certified Mail, Return Receipt Requested, or in person with proof of delivery. Allowing time to cure a failure or breach of contract does not waive the right to immediately terminate the contract for the same or different contract breach which may occur at a different time.

In case of breach by the Bidder, the State may, without unreasonable delay, make a good faith effort to make a reasonable purchase or contract to purchased goods in substitution of those due from the Bidder. The State may recover from the Bidder as damages the difference between the costs of covering the breach. Notwithstanding any clause to the contrary, the State may also recover the contract price together with any incidental or consequential damages defined in UCC Section 2-715, but less expenses saved in consequence of Bidder's breach OR in case of default of the Bidder, the State may contract the service from other sources and hold the Bidder responsible for any excess cost occasioned thereby.

The State's failure to make payment shall not be a breach, and the Bidder shall retain all available statutory remedies. (See Indemnity - Self-Insurance and Payment)

J. NON-WAIVER OF BREACH

Rej.-.Ct (Initial)

R9ject & Provide A11-matlvo

Rn nae Initial

NOTES/COMMENTS:

The acceptance of late performance with or without objection or reservation by a Party shall not waive any rights of the Party nor constitute a waiver of the requirement of timely performance of any obligations remaining to be perfonned.

K. SEVERABILITY

Accept (Initial)

Reject (Initial)

Rejc,ct & Provide Al-.mative

Rn onu Initial

NOTES/COMMENTS:

If any term or condition of the contract is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms and conditions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the contract did not contain the provision held to be invalid or illegal.

Page9

67890F

L. INDEMNIFICATION

Accept (Initial)

Reject (Initial)

Reject.& Provide Alternative

Res 1'188 Initial

NOTES/COMMENTS:

1. GENERAL

The Bidder agrees to defend, indemnify, and hold harmless the State and its employees, volunteers, agents, and its elected and appointed officials ("the indemnified parties") from and against any and all claims, liens, demands, damages, liability, actions, causes of action, losses, judgments, costs, and expenses of every nature, including investigation costs and expenses, settlement costs, and attorney fees and expenses ("the claims"), sustained or asserted against the State for personal injury, death, or property loss or damage, arising out of, resulting from, or attributable to the willful misconduct, negligence, error, or omission of the Bidder, its employees, Subcontractors, consultants, representatives, and agents, resulting from this contract, except to the extent such Bidder liability is attenuated by any action of the State which directly and proximately contributed to the claims.

2. SELF-INSURANCE (Statutory) The State is self-insured for any loss and purchases excess insurance coverage pursuant to Neb. Rev. Stat. § 81- 8,239.01 (Reissue 2008). If there is a presumed loss under the provisions of this contract, Bidder may file a claim with the Office of Risk Management pursuant to Neb. Rev. Stat.§§ 81-8,829 through 81-8,306 for review by the State Claims Board. The State retains all rights and immunities under the State Miscellaneous (Section 81-8,294), Tort (Section 81-8,209), and Contract Claim Acts (Section 81-8,302), as outlined in Neb. Rev. Stat.§ 81-8,209 et seq. and under any other provisions of law and accepts liability under this contract to the extent provided by law.

M. ATTORNEY'S FEES

Accept (Initial)

Reject (Initial)

Reject & PtQvlde Alternative

Res nae · Initial

NOTES/COMMENTS:

In the event of any litigation, appeal, or other legal action to enforce any provision of the contract, the Parties agree to pay all expenses of such action, as permitted by law and if ordered by the court, including attorney's fees and costs, if the other party prevails.

N. ASSIGNMENT, SALE, OR MERGER

Accept (Initial)

Reject (Initial)

Reject & Provide Alternative

Res lnltlal

NOTES/COMMENTS:

Either party may assign the contract upon mutual written agreement of the other party. Such agreement shall not be unreasonably withheld.

The Bidder retains the right to enter into a sale, merger, acquisition, internal reorganization, or similar transaction involving Bidder's business. Bidder agrees to cooperate with the State in executing amendments to the contract to allow for the transaction.

If a third party or entity is involved in the transaction, the Bidder will remain responsible for performance of the contract until such time as the person or entity involved in the transaction agrees in writing to be contractually bound by this contract and perform all obligations of the contract.

0. CONTRACTING WITH OTHER POLITICAL SUB-DIVISIONS OF THE STATE OR ANOTHER STATE

Accept (Initial)

Reject (Initial)

Reject &. Provide Alternative

Ree lnltlal

NOTESJCOMMENTS:

The Bidder may, but shall not be required to, allow agencies. as defined in Neb. Rev. Stat.§ 81-145, to use this contract. The terms and conditions, including price, of the contract may not be amended. The State shall not be contractually obligated or liable for any contract entered into pursuant to this clause.

The Bidder may, but shall not be required to, allow other states, agencies or divisions of other states, or political subdivisions of other states to use this contract. The terms and conditions, including price, of this contract shall apply to any such contract, but may be amended upon mutual consent of the Parties. The State of Nebraska shall not be contractually or otherwise obligated or liable under any contract entered into pursuant to this clause. The State shall be notified if a contract is executed based upon this contract.

P. FORCE MAJEURE

Reject (Initial)

Reject & Provide Altematlve

R · nae lnltlal

NOTES/COMMENTS:

Neither party shall be liable for any costs or damages, or for default resulting from its inability to perform any of its obligations under the contract due to a natural or man-made event outside the control and not the fault of the affected party ("Force Majeure Event"). The Party so affected shall immediately make a written request for relief to the other party, and shall have the burden of proof to justify the request. The other Party may granted the relief requested; relief may not be unreasonably withheld. Labor disputes with the impacted party's own employees will not be considered a Force Majeure Event.

Q. CONFIDENTIALITY

Accept (lnltl•I)

Reject (tnttlat)

Rejctet & Provide Altematlve

Res . l'IN Initial

NOTES/COMMENTS:

All materials and information provided by the Parties or acquired by a Party on behalf of the other Party shall be regarded as confidential information. All materials and information provided or acquired shall be handled in accordance with federal and state law, and ethical standards. Should said confidentiality be breached by a Party, the Party shall notify the other Party immediately of said breach and take immediate corrective action.·

It is incumbent upon the Parties to inform their officers and employees of the penalties for improper disclosure imposed by the Privacy Act of 1974, 5 U.S.C. 552a. Specifically, 5 U.S.C. 552a (i)(1), which is made applicable by 5 U.S.C. 552a (m)(1), provides that any officer or employee, who by virtue of his/her employment or official position has possession of or access to Agency records which contain individually identifiable information, the disclosure of which is prohibited by the Privacy Act or regulations established thereunder, and who knowing that disclosure of the specific material is prohibited, willfully discloses the material in any manner to any person or Agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $5,000.

R. EARLY TERMINATION

Accept (Initial)

Rejt(:t (Initial)

Reject• Provide Altematlve

Initial

NOTES/COMMENTS:

The contract may be terminated as follows:

1. The State and the Bidder, by mutual written agreement, may terminate the contract at any time.

2. The State, at its sole discretion, may terminate the contract for any reason upon thirty (30) calendar day's written notice to the Bidder. Such termination shall not relieve the Bidder of warranty or other service obligations incurred under the terms of the contract. In the event of termination, the Bidder shall be entitled to payment, determined on a pro rata basis, for products or services satisfactorily performed or provided.

3. The State may terminate the contract immediately for the following reasons:

a. if directed to do so by statute;

b. Bidder has made an assignment for the benefit of creditors, has admitted in writing its inability to pay debts as they mature, or has ceased operating in the normal course of business;

c. a trustee or receiver of the Bidder or of any substantial part of the Bidder's assets has been appointed by a court;

d. fraud, misappropriation, embezzlement, malfeasance, misfeasance, or illegal conduct pertaining to performance under the contract by its Bidder, its employees, officers, directors, or shareholders;

e. an involuntary proceeding has been commenced by any party against the Bidder under any one of the chapters of Title 11 of the United States Code and (i) the proceeding has been pending for at least sixty (60) calendar days; or (ii) the Bidder has consented, either expressly or by operation of law, to the entry of an order for relief; or (iii) the Bidder has been decreed or adjudged a debtor;

f. a voluntary petition has been filed by the Bidder under any of the chapters of Title 11 of the United States Code;

g. Bidder intentionally discloses confidential information;

h. Bidder has or announces it will discontinue support of the deliverable; and,

i. In the event funding is no longer available.

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Ill. BIDDER DUTIES

A. INDEPENDENT BIDDER / OBLIGATIONS

Accept Reject Reject & Provide

Alternative NOTES/COMMENTS:

(Initial) (Initial)

Response (Initial)

4- It is agreed that the Bidder is an independent bidder and that nothing contained herein is intended or should be construed as creating or establishing a relationship of employment, Agency, or a partnership.

The Bidder is solely responsible for fulfilling the contract. The Bidder or the Bidder's representative shall be the sole point of contact regarding all contractual matters.

The Bidder shall secure, at its own expense, all personnel required to perform the seNices under the contract. The personnel the Bidder uses to fulfill the contract shall have no contractual or other legal relationship with the State; they shall not be considered employees of the State and shall not be entitled to any compensation, rights, or benefits from the State, including but not limited to, tenure rights, medical and hospital care, sick and vacation leave, severance pay, or retirement benefits.

By-name personnel commitments made in the Bidder's bid shall not be changed without the prior written approval of the State.

Replacement of these personnel. if approved by the State, shall be with personnel of equal or greater ability and qualifications.

The Bidder warrants that all persons assigned to the project shall be employees of the Bidder or a Subcontractor and shall be fully qualified to perform the work required herein. Personnel employed by the Bidder or a subcontractor to fulfill the terms of the contract shall remain under the sole direction and control of the Bidder or the subcontractor respectively.

With respect to its employees, the Bidder agrees to be solely responsible for the following:

1. Any and all pay, benefits, and employment taxes and/or other payroll withholding;

2. Any and all vehicles used by the Bidder's employees, including all insurance required by state law;

3. Damages incurred by Bidder's employees within the scope of their duties under the contract;

4. Maintaining Workers' Compensation and health insurance that complies with state and federal law and submitting any reports on such insurance to the extent required by governing law;

5. Determining the hours to be worked and the duties to be performed by the Bidder's employees; and,

6. All claims on behalf of any person arising out of employment or alleged employment (including without limit claims of discrimination alleged against the Bidder, its officers, agents, or subcontractors or subcontractor's employees).

If the Bidder intends to utilize any subcontractor, the Subcontractor's level of effort, tasks, and time allocation must be clearly defined in the Bidder's bid. The Bidder shall agree that it will not utilize any Subcontractors not specifically included in its bid in the performance of the contract without the prior written authorization of the State.

The State reserves the right to require the Bidder to reassign or remove from the project any Bidder or Subcontractor employee.

Bidder shall insure that the terms and conditions contained in any contract with a sub-contractor does not conflict with the terms and conditions of this contract.

The Bidder shall include a similar provision, for the protection of the State, in the contract with any Subcontractor engaged to perform work on this contract.

B. EMPLOYEE WORK ELIGIBILITY STATUS

The Bidder is required and hereby agrees to use a federal immigration verification system to determine the work eligibility status of employees physically performing work within the State. A federal immigration verification system means the electronic verification of the work authorization program authorized by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S. C. 1324a, known as the E-Verify Program, or an equivalent federal program designated by the United States Department of Homeland Security or other federal Agency authorized to verify the work eligibility status of an employee.

If the Bidder is an individual or sole proprietorship, the following applies:

1. The Bidder must complete the United States Citizenship Attestation Form, available on the DAS website at http: //das. nebraska. gov/materiel/purchasing. him I

The completed United States Attestation Form should be submitted with the 1TB response.

2. If the Bidder indicates on such attestation form that he or she is a qualified alien, the Bidder agrees to provide the U.S. Citizenship and Immigration Services documentation required to verify the Bidder's lawful presence in the United States using the Systematic Alien Verification for Entitlements (SAVE) Program.

3. The Bidder understands and agrees that lawful presence in the United States is required, and the Bidder may be disqualified, or the contract terminated if such lawful presence cannot be verified as required by Neb. Rev. Stat. § 4- 108.

C. COMPLIANCE WITH CIVIL RIGHTS LAWS AND EQUAL OPPORTUNITY EMPLOYMENT/ NONDISCRIMINATION (Statutory) The Bidder shall comply with all applicable local, state, and federal statutes and regulations regarding civil rights laws and equal opportunity employment. The Nebraska Fair Employment Practice Act prohibits Bidders of the State. and their Subcontractors, from discriminating against any employee or applicant for employment, with respect to hire, tenure, terms, conditions, compensation, or privileges of employment because of race, color, religion, sex, disability, marital status, or national origin (Neb.

Rev. Stat.§§ 48-1101 through 48-1125). The Bidder guarantees compliance with the Nebraska Fair Employment Practice Act, and breach of this provision shall be regarded as a material breach of contract. The Bidder shall insert a similar provision in all Subcontracts for goods or services to be covered by any contract resulting from this 1TB.

D. COOPERATION WITH OTHER BIDDERS

Accept (Initial)

Reject (lnltlal)

Reject & Provide Alternative

Res lnltial

NOTES/COMMENTS:

Bidder may be required to work with or in close proximity to other bidders or individuals that may be working on the same or different projects. The Bidder shall agree to cooperate with such other bidders or individuals and shall not commit or permit any act which may interfere with the performance of work by any other bidder or individual. Bidder is not required to compromise Bidder's intellectual property or proprietary information unless expressly required to do so by this contract.

E. DISCOUNTS

Prices quoted shall be inclusive of ALL trade discounts. Cash discount terms of less than thirty (30) days will not be considered as part of the bid. Cash discount periods will be computed from the date of receipt of a properly executed claim voucher or the date of completion of delivery of all items in a satisfactory condition, whichever is later.

F. PRICES

Prices quoted shall be net, induding transportation and delivery charges fully prepaid by the bidder, FOB destination named in the 1TB. No additional charges will be allowed for packing, packages, or partial delivery costs. When an arithmetic error has been made in the extended total, the unit price will govern.

All prices, costs, and terms and conditions submitted in the bid shall remain fixed and commencing on the opening date of the bid and shall remain firm for the first one hundred twenty (120) days of the contract award.

Requests for an increase must be submitted in writing to SPB. SPB has a minimum of thirty (30) days to review and award any Price increase or decrease (after documentation is approved). Documentation will be required by the State to support the price increase. The State reserves the right to deny any requested price increase.

No price increases are to be billed to the State prior to an Amendment to the Contract, which has been signed and completed by both the State and the awarded bidder, the Amendment is posted to the SPB website and written notice has been given to both the State and the awarded bidder.

The State will be given full proportionate benefit of any decreases for the term of the contract.

G. COST CLARIFICATION

The State reserves the right to review all aspects of cost for reasonableness and to request clarification of any bid where the cost component shows significant and unsupported deviation from industry standards or in areas where detailed pricing is required.

H. PERMITS, REGULATIONS, LAWS

Acee.pt (Initial)

Reject (Initial)

INVITATION TO BID

67890F

NOTES/COMMENTS:

The contract price shall include the cost of all royalties, licenses, permits, and approvals, whether arising from patents, trademarks, copyrights or otherwise, that are in any way involved in the contract. The Bidder shall obtain and pay for all royalties, licenses, and permits, and approvals necessary for the performance of the contract. The Bidder must guarantee that it has the full legal right to the materials, supplies, equipment. software, and other items used to execute this contract.

I. NOTICE OF POTENTIAL BIDDER BREACH

Accept (lnltlal)

Reject (Initial)

Reject & Provide Alternative

Rea 0"88 Initial

NOTES/COMMENTS:

If Bidder breaches the contract or anticipates breaching the contract the Bidder shall immediately give written notice to the State.

The notice shall explain the breach or potential breach and may include a request for a waiver of the breach if so desired. The State may, at its discretion, temporarily or permanently waive the breach. By granting a temporary waiver, the State does not forfeit any rights or remedies to which the State is entitled by law or equity, or pursuant to the provisions of the contract. Failure to give immediate notice, however, may be grounds for denial of any request for a waiver of a breach.

J. ANTITRUST

Accept (Initial)

Reject (Initial)

Reject& Provide Alternative

Res nae lnltlal

NOTES/COMMENTS:

The Bidder hereby assigns to the State any and all claims for overcharges as to goods and/or services provided in connection with this contract resulting from antitrust violations which arise under antitrust laws of the United States and the antitrust laws of the State.

K. CONFLICT OF INTEREST

Accept (Initial)

Reject (Initial)

Reject·& Provide Alternative

Res nu Initial

NOTES/COMMENTS:

By submitting a bid, bidder certifies that no relationship exists between the bidder and any person or entity which either is, or gives the appearance of, a conflict of interest related to this 1TB or project.

Bidder further certifies that bidder will not employ any individual known by bidder to have a conflict of interest nor shall bidder take any action or acquire any interest, either directly or indirectly, which will conflict in any manner or degree with the performance of its contractual obligations hereunder or which creates an actual or appearance of conflict of interest.

If there is an actual or perceived conflict of interest, bidder shall provide with its bid a full disclosure of the facts describing such actual or perceived conflict of interest and a proposed mitigation plan for consideration. The State will then consider such disclosure and proposed mitigation plan and either approve or reject as part of the overall bid evaluation ..

L. ADVERTISING

Accept Reject Reject & Provide

Alternative (Initial) (Initial)

Resoonse (Initial)

.W3>

INVITATION TO BID

6789 OF

NOTES/COMMENTS:

The Bidder agrees not to refer to the contract award in advertising in such a manner as to state or imply that the company or its goods and services are endorsed or preferred by the State. Any publicity releases pertaining to the project shall not be issued without prior written approval from the State.

M. NEBRASKA TECHNOLOGY ACCESS STANDARDS (Statutory) Bidder shall review the Nebraska Technology Access Standards, found at http://nitc.nebraska.gov/standards/2-201.html and ensure that products and/or goods provided under the contract are in compliance or will comply with the applicable standards to the greatest degree possible. In the event such standards change during the Bidder's performance, the State may create an amendment to the contract to request the contract comply with the changed standard at a cost mutually acceptable to the parties.

N. DISASTER RECOVERY/BACK UP PLAN

Accept Reject Reject & Provide

Alternative NOTES/COMMENTS:

(Initial) (Initial) Response (Initial)

.�J- The Bidder shall have a disaster recovery and back-up plan, of which a copy should be provided upon request to the State, which includes, but is not limited to equipment, personnel, facilities, and transportation, in order to continue delivery of goods and services as specified under the specifications in the contract in the event of a disaster.

0. DRUG POLICY

Accept Reject Reject & Provide

Alternative (Initial) (Initial) Response (Initial)

NOTES/COMMENTS:

Bidder certifies it maintains a drug free workplace environment to ensure worker safety and workplace integrity. Bidder agrees to provide a copy of its drug free workplace policy at any time upon request by the State.

P. WARRANTY

Accept Reject (Initial) (Initial)

Reject & Provide Alternative NOTES/COMMENTS:

Response (Initial)

Despite any clause to the contrary, the Bidder represents and warrants that its services hereunder shall be performed by competent personnel and shall be of professional quality consistent with generally accepted industry standards for the performance of such services and shall comply in all respects with the requirements of this Contract. For any breach of this warranty, the Bidder shall, for a period of ninety (90) days from performance of the service, perform the services again, at no cost to Customer, or if Bidder is unable to perform the services as warranted, Bidder shall reimburse Customer the fees paid to Bidder for the unsatisfactory services. The rights and remedies of the parties under this warranty are in addition to any other rights and remedies of the parties provided by law or equity, including, without limitation actual damages, and, as applicable and awarded under the law, to a prevailing party, reasonable attorneys' fees, and costs.

IV. PAYMENT

A. PROHIBITION AGAINST ADVANCE PAYMENT (Statutory) Neb. Rev. Stat.§ 81-2403 states, "[n]o goods or services shall be deemed to be received by an Agency until all such goods or services are completely delivered and finally accepted by the Agency."

B. TAXES (Statutory) The State is not required to pay taxes and assumes no such liability as a result of this 1TB. The Bidder may request a copy of the Nebraska Department of Revenue, Nebraska Resale or Exempt Sale Certificate for Sales Tax Exemption, Form 13 for their records. Any property tax payable on the Bidder's equipment which may be installed in a state-owned facility is the responsibility of the Bidder.

C. INVOICES

Invoices for payments must be submitted by the Bidder to the Agency requesting the services with sufficient detail to support payment. The terms and conditions included in the Bidder's invoice shall be deemed to be solely for the convenience of the parties. No terms or conditions of any such invoice shall be binding upon the State, and no action by the State, including without limitation the payment of any such invoice in whole or in part, shall be construed as binding or estopping the State with respect to any such term or condition, unless the invoice term or condition has been previously agreed to by the State as an amendment to the contract.

D. INSPECTION AND APPROVAL

Aecept (Initial)

Reject (Initial)

Reject & Provide Alternative

Resnonse flnltlan

NOTES/COMMENTS:

Final inspection and approval of all work required under the contract shall be performed by the designated State officials.

The State and/or its authorized representatives shall have the right to enter any premises where the Bidder or Subcontractor duties under the contract are being performed, and to inspect, monitor or otherwise evaluate the work being performed.