AA Covendis NASPO 14PSX0338.pdf

CONTRACT

14PSX0338AA

Between

THE STATE OF CONNECTICUT

Acting by its

DEPARTMENT OF ADMINISTRATIVE SERVICES

And

COVENDIS

IT VENDOR MANAGED SERVICE PROVIDERS

Covendis Contract 14PSX0338AA IT Vendor Managed Services

CONTENTS

1. TERM OF CONTRACT

2. DEFINITIONS

3. ACQUIRING DELIVERABLES AND SERVICES

4. PROJECT PERSONNEL

5. CHANGE ORDERS

6. ASSIGNMENTS

7. RESERVED

8. DELIVERABLE EVALUATION & ACCEPTANCE

9. PARTICIPATION AND PAYMENTS

10. LICENSED SOFTWARE MAINTENANCE & SUPPORT

11. NASPO VALUEPOINT PROVISIONS

12. RESERVED

13. RESERVED

14. RESERVED

15. RESERVED

16. LICENSED SOFTWARE

17. RESERVED

20. PROTECTION OF CONFIDENTIAL INFORMATION

21. FEDERAL FUNDS

22. RISK OF LOSS & INSURANCE

23. DELIVERABLE ALTERATIONS

24. FORCE MAJEURE

25. CROSS-DEFAULT

26. GENERAL PROVISIONS

27. WORKING AND LABOR SYNERGIES

28. COMMUNICATIONS

29. RESERVED

30. WHISTLEBLOWER PROVISION

31. DISCLOSURE OF PUBLIC RECORDS PROVISION

32. FORUM AND CHOICE OF LAW

33. BREACH

34. TERMINATION

35. REPRESENTATIONS AND WARRANTIES

36. DISCLOSURE OF CONTRACTOR PARTIES LITIGATION

IT Vendor Managed Services

37. STATE COMPTROLLER’S SPECIFICATIONS

38. CHIEF INFORMATION OFFICER SUBCONTRACT APPROVAL

39. RIGHTS TO AND INTEGRITY OF PUBLIC RECORDS

40. PUBLIC RECORDS AND FOIA

41. DISCLOSURE OF PUBLIC RECORDS

42. PROFITING FROM PUBLIC RECORDS

43. CONTRACTOR’S OBLIGATION TO NOTIFY DAS CONCERNING PUBLIC RECORDS

44. GENERAL ASSEMBLY ACCESS TO RECORDS

45. CONTINUITY OF SYSTEMS

46. TANGIBLE PERSONAL PROPERTY

47. INDEMNIFICATION

48. SOVEREIGN IMMUNITY

49. SUMMARY OF STATE ETHICS LAWS

50. AUDIT AND INSPECTION OF PLANTS, PLACES OF BUSINESS AND RECORDS

51. CAMPAIGN CONTRIBUTION RESTRICTION

52. EXECUTIVE ORDERS

53. NONDISCRIMINATION

54. HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996

55. WORKER’S COMPENSATION

56. OWNERSHIP OF DATA

57. TERMS AND CONDITIONS

58. ENTIRETY OF CONTRACT

EXHIBIT 1 – NOTICE TO EXECUTIVE BRANCH STATE CONTRACTORS AND

PROSPECTIVE STATE CONTRACTORS OF CAMPAIGN CONTRIBUTION AND SOLICITATION

LIMITATIONS

EXHIBIT 2 – DELIVERABLES DOCUMENT

EXHIBIT 3 – PRODUCT & PRICING SCHEDULE

EXHIBIT 4 – SERVICE LEVEL AGREEMENT (SLA)

IT Vendor Managed Services

This contract (the “Contract”) is made as of August 8, 2017 by and between uWork.com, Inc. dba Covendis (“Contractor”), with a principal place of business at 200 Walker Street SW, Unit B, Atlanta, Georgia, acting by Raymond Tsao its President and CEO and the State of Connecticut, acting through its Department of Administrative Services (“DAS”), with a principal place of business at 450 Columbus Boulevard, Hartford, Connecticut 06103, acting by Melody A. Currey, its Commissioner in accordance with Sections 4a-2, 4a-51 and 4a-53 of the Connecticut General Statutes, acting in connection with the NASPO ValuePoint cooperative contract program.

The Contractor and DAS agree as follows:

1. TERM OF CONTRACT

This Contract is effective upon its approval as to form by the Office of the Attorney General of the State of Connecticut (“Effective Date”), as evidenced by its signature below, and will continue for three (3) years from the Effective Date. The parties, by mutual agreement, may extend this Contract one or more times for a combined total extension period not to exceed one year.

2. DEFINITIONS

a) Acceptance: Determination made by the Purchasing Entity upon successful User Acceptance Test that the Deliverable, or if applicable, System, performs to the Specifications and fulfills the business and technical requirements of the Contract.

b) Acceptance Date: The date the Purchasing Entity accepts a Deliverable or System in accordance with Section 8 below shall be deemed to be the Acceptance Date for each Deliverable or System.

c) Alteration: The modification, changing, refashioning, remodeling, remaking, revising or reworking of any part of the System or Deliverable.

d) Claims: All actions, suits, claims, demands, investigations, and proceedings of any kind, open, pending, or threatened, whether mature, un-matured, contingent, known or unknown, at law or in equity in any form.

e) Confidential Information: Any name, number or other information that may be used, alone or in conjunction with any other information, to identify a specific individual including, but not limited to, such individual's name, date of birth, mother's maiden name, motor vehicle operator's license number, Social Security number, employee identification number, employer or taxpayer identification number, alien registration number, government passport number, health insurance identification number, demand deposit account number, savings account number, credit card number, debit card number or unique biometric data such as fingerprint, voice print, retina or iris image, or other unique physical representation. Without limiting the foregoing, Confidential Information shall also include any information that DAS or the Purchasing Entity, as applicable, classifies as “confidential” or “restricted.” Confidential Information shall not include information that may be lawfully obtained from publicly available sources or from federal, state, or local government records which are lawfully made available to the general public.

f) Confidential Information Breach: Generally, an instance where an unauthorized person or entity accesses Confidential Information in any manner, including but not limited to the following occurrences: (1) any Confidential Information that is not encrypted or protected is misplaced, lost, stolen or in any way compromised;

(2) one or more third parties have had access to or taken control or possession of any Confidential Information that is not encrypted or protected without prior written authorization from the Lead State or a Participating State, Participating Entity or Purchasing Entity, as applicable; (3) the unauthorized acquisition of encrypted or protected Confidential Information together with the confidential process or key that is capable of compromising the integrity of the Confidential Information; or (4) if there is a substantial risk of identity theft or fraud to the client, the Contractor, the Purchasing Entity, Participating Entity or Lead State.

g) Contractor Parties: A Contractor’s members, directors, officers, shareholders, partners, managers, principal officers, representatives, agents, consultants, employees or any one of them or any other person or entity with whom the Contractor is in privity of oral or written contract and the Contractor intends for such other person or entity to Perform under this Contract in any capacity.

h) Corrective Action Plan: A detailed written plan produced by the Contractor at the request of the Purchasing Entity to correct or resolve Contractor deficiency(ies) identified by the Purchasing Entity in accordance with Section 33.

i) Deliverable: Any product, service, or warranty that is required to be delivered to the Purchasing Entity under this

Contract, whether produced by the Contractor or by a third party as a supplier or subcontractor to the Contractor.

j) Deliverables Document: Exhibit 2, which sets forth and describes the Services and Deliverables that are to be provided or made available under to this Contract and the specific requirements and terms applicable to those Services and Deliverables.

k) Goods: For the purposes of this Contract, all things which are movable at the time that this Contract is effective and which include, without limiting this definition, supplies, materials and equipment, as specified in the Solicitation and set forth in Exhibit 2 or Exhibit 3, or both.

l) Improvement: Contractor changes made to Deliverables from time to time either to provide additional functions for use by the Purchasing Entity or to correct errors and other Performance deficiencies noted by the Purchasing Entity and reported to the Contractor.

m) IT Professional: An employee of the Contractor or Contractor Parties chosen to Perform under this Contract.

n) Key Contractor Personnel: The individual employees of Contractor who will be assigned to the Project.

o) Lead State: The State of Connecticut.

p) Licensed Software: Computer program(s) provided by Contractor in connection with the Deliverables, subject to

Section 16 of this Contract.

q) NASPO ValuePoint: National Association of State Purchasing Officers Cooperative Purchasing Organization LLC, doing business as NASPO ValuePoint, whose role is to facilitate the administration of the NASPO cooperative group contracting consortium of state chief procurement officials for the benefit of state departments, institutions, agencies, and political subdivisions and other eligible entities (i.e., colleges, school districts, counties, cities, some nonprofit organizations, etc.) for all states, the District of Columbia, and territories of the United States. NASPO ValuePoint's role is also to receive reports and may perform contract administration functions relating to collecting and receiving reports, as well as other contract administration functions as assigned by the Lead State.

r) Participating Addendum (PA): A bilateral agreement executed by a Contractor and a Participating Entity, pursuant and subject to this Contract, which includes additional Participating Entity-specific terms and conditions, such as ordering procedures specific to the Participating Entity, and which is binding only upon the two parties executing the bilateral agreement.

s) Participating Entity: A state, or other legal entity, that enters into a Participating Addendum.

t) Participating State: A state, the District of Columbia, or one of the territories of the United States that is listed in the Solicitation as intending to participate in the Solicitation. Upon execution of the Participating Addendum, a Participating State becomes a Participating Entity; however, a Participating State listed in the Solicitation is not required to become a Participating Entity.

u) Perform: For the purposes of this Contract, the verb “to perform” and the Contractor’s performance set forth in this Contract and its exhibits are referred to as “Perform,” “Performance” and other capitalized variations of the term.

v) Product & Pricing Schedule: Exhibit 3, which lists the Deliverables and Services available under this Contract and establishes the component or unit pricing and price schedules for each Deliverable and Service available pursuant to this Contract.

w) Product Schedule Update: Update to the Product & Pricing Schedule in accordance with Section 3 of this Contract to make additional products or services available under this Contract or to alter the pricing of products or services listed in the Product & Pricing Schedule.

x) Proposal: A submittal in response to the Solicitation.

y) Purchase Order (PO): Document issued by a Purchasing Entity for one or more Goods, Deliverables or Services in accordance with the terms and conditions of this Contract.

z) Purchasing Entity (PE): The Lead State, a Participating Entity, or a city, county, district or other political subdivision of the Lead State or Participating Entity, or a nonprofit organization authorized under a Participating Addendum, who issues a Purchase Order against the Contract and becomes financially committed to the purchase.

aa) Records: All working papers and such other information and materials as may have been accumulated by the

Contractor in Performing this Contract, including but not limited to, documents, data, plans, books, computations, drawings, specifications, notes, reports, records, estimates, summaries, memoranda and correspondence, kept or stored in any form.

bb) Services: The Performance of labor or work set forth in Exhibit 2 or in the Statement of Work, whichever is applicable.

cc) Site: Location(s) specified by Purchasing Entity where Deliverables are to be installed or Services rendered.

dd) Solicitation: Request for Proposal entitled Information Technology Vendor Managed Service Providers dated

December 1, 2016.

ee) Source Code: The Licensed Software, including all corresponding programmer’s comments, data files and structures, headers, files, macros, annotations, and documentation.

ff) Specifications: The written technical and non-technical detailed documentation of the Deliverables and the

System’s capabilities, as approved and accepted in writing by the Purchasing Entity prior to acceptance of the System.

gg) State: Unless specifically identified as the State of Connecticut, in which case the reference is limited to the

State of Connecticut, the state or territory of the United States of America in which the Participating Entity or Purchasing Entity is located.

hh) Statement of Work (SOW): Statement issued in connection with a Purchase Order for a Deliverable or Service available under this Contract which sets forth all work and payment requirements for Contractor’s Performance in connection with said Purchase Order.

ii) System: Contractor furnished or otherwise supplied Deliverables that collectively and in an integrated fashion fulfills the business and technical requirements of this Contract and its exhibits.

jj) Term: The original term of the Contract plus any extensions exercised under Section 1 of the Contract.

kk) Termination: An end to this Contract prior to the end of its Term.

ll) Upgrade: A change to the primary version number of the Licensed Software, generally providing additional features or functionality

mm) Update: A change to the Licensed Software to correct bugs or defects, patches or changes to enable the Licensed

Software to operate on new or upgraded operating platforms.

nn) User Acceptance Testing (UAT): Phase in which the Purchasing Entity tests the functionality of a Deliverable with real world scenarios to determine if the Deliverable performs in accordance with the agreed upon design as contained in the Specifications.

oo) Warranty Period: The 12 month period commencing upon the Acceptance Date for the System.

3. ACQUIRING DELIVERABLES AND SERVICES

a) Subject to the terms and conditions of this Contract, Contractor shall sell, transfer, convey and/or license to the Purchasing Entity any duly ordered Deliverable and/or Perform the Services in accordance with Exhibit 2, or in accordance with a Statement of Work, if applicable. Such Deliverables or Services, as appropriate, shall be itemized in and available under the Product & Pricing Schedule and may be acquired through properly issued Purchase Orders.

b) Any Purchase Order is subject to the terms of this Contract and shall remain in effect until the Purchasing Entity’s acceptance of full Performance of all Deliverables and Services contained in the applicable Purchase Order, unless terminated sooner under the terms of this Contract. Neither party shall be bound by any additional terms

IT Vendor Managed Services different from those in this Contract and the Participating Addendum that may appear on a Purchase Order or other form document issued by either party.

c) Contractor may supplement Exhibit 3 to make additional services and related terms available to Participating Entities. The supplement will only be deemed to be accepted by the Lead State if the latter issues a Product Schedule Update letter to Contractor, indicating its concurrence with the supplement.

d) The Contractor shall have the right to request a price adjustment only during the thirty (30) days immediately preceding the quarterly anniversary dates of the Effective Date of the Contract. A request for a price adjustment must be made in writing to the Lead State in accordance with Section 9. Requests for price adjustments must be consistent with and related to price changes originating with and compelled by manufacturer or market trends which are outside of the Contractor’s control. The Contractor must fully document its request, attaching to the request, without limitation, the pertinent manufacturer and market data, as support for the requested adjustment. The Lead State may, in its sole discretion, approve or disapprove the requested adjustment, in whole or in part. If approved, price adjustments shall become effective upon commencement of the immediately following quarter. The Contractor shall honor any Purchase Orders issued prior to the effective date of the approval at the price in effect at the time of the issuance of the Purchase Order.

e) Notwithstanding any other provision of this Contract, no material change may be made to the Deliverables set forth in Exhibit 2 that alters the nature or scope of the Deliverables or their intended use. Any change in the Deliverables set forth in Exhibit 3 shall be conditioned upon the new product(s) being of a similar nature and having a similar use as the defined Deliverables. An update of the Deliverables or the addition of products that are related to or serve similar functions as the Deliverables is permissible only with the prior written approval of the DAS.

f) Contractor shall provide all Purchasing Entities with a discount on any Product Schedule Update according to the discount, if any, shown on the Exhibit 3.

g) The Purchasing Entity is authorized to use any Licensed Software solely for the business purposes specified in connection with the Deliverables. The right to use any such Licensed Software, unless expressly stated otherwise elsewhere in this Contract, shall be perpetual and nonexclusive.

h) No additions to or reductions in the Deliverables and prices for work completed in the Performance of any Purchase Order shall be permitted unless the Purchasing Entity issues a change order in accordance the provisions of Section 5.

i) The Purchasing Entity shall issue a Purchase Order when acquiring any Deliverable or Service available under this Contract and, if appropriate, a Statement of Work mutually acceptable to the Purchasing Entity and the Contractor.

4. PROJECT PERSONNEL

a) The Purchasing Entity shall designate a project administrator (the “Project Administrator”), who may be replaced by the Purchasing Entity. The Project Administrator shall have the authority to act for the Purchasing Entity under this Contract for any Deliverable(s) initially acquired/installed from the Contractor and such authority shall continue to be in effect throughout the term of this Contract, unless sooner replaced by the Purchasing Entity.

b) Purchasing Entity may require the Contractor provide dedicated personnel and shall have the right to approve Key Contractor Personnel. If Purchasing Entity is dissatisfied with the Performance of any prior approved Key Contractor Personnel, Purchasing Entity shall notify Contractor in writing of Purchasing Entity’s desire to change any such Key Contractor Personnel. Contractor shall make such requested change within 10 calendar days of the date of the written request for such change. If required by the Purchasing Entity, the Key Contractor Personnel must be identified individually in the applicable Purchase Order or Statement of Work.

5. CHANGE ORDERS

a) The Purchasing Entity may, at any time, with written notice to Contractor, request changes within the scope of Exhibit 2 or Statement of Work, if applicable. Such changes shall not be unreasonably denied or delayed by Contractor.

Such changes may include, but are not limited to, modifications or other changes required by new or amended state and/or Federal laws and regulations relating to functional requirements and processing procedures, or involving the correction of System deficiencies. Prior to expiration of any Warranty Period, any changes required because the System does not fully perform in accordance with this Contract, shall be made by Contractor without charge to the Purchasing Entity. Any investigation necessary to determine the source of the problem requiring the change shall be done by Contractor at its sole cost and expense.

b) A change order request may be issued only by the Purchasing Entity and must be in writing. As soon as possible after Contractor receives a written change order request, but in no event later than fifteen (15) calendar days thereafter, the Contractor shall provide the Purchasing Entity with a written statement confirming the change has no price impact on the Contract or, if there is a price impact, Contractor shall provide the Purchasing Entity a written statement explaining the price increase or decrease involved in implementing the requested change.

c) If the Purchasing Entity issues a change order requesting a change to the System to comply with changes to Federal or State law, or changes to regulations affecting the Purchasing Entity, the Contractor shall perform the changes at no additional cost to the Purchasing Entity.

d) No change order with a price impact will be effective until Contractor receives written confirmation from the Purchasing Entity.

6. ASSIGNMENTS

The Contractor shall not assign any of its rights or obligations under the Contract in any manner without the prior written consent of DAS. DAS may void any purported assignment that violates this section and declare the Contractor to be in breach of Contract. Any Termination by DAS for a breach under this section is without prejudice to DAS’s or the State’s rights or possible Claims. The Contractor shall not assign any of its rights or obligations under a Participating Addendum in any manner without the prior written consent of the Participating Entity or Purchasing Entity, as appropriate. The Participating Entity or Purchasing Entity may void any purported assignment in violation of this section. If the Contractor violates this section then DAS, after conferring with the Participating Entity or Purchasing Entity, may declare the Contractor in breach of Contract. Any Termination by DAS for a breach is without prejudice to DAS’s or the Participating Entity's or Purchasing Entity’s rights or possible Claims.

7. RESERVED

8. DELIVERABLE EVALUATION & ACCEPTANCE

a) Any Deliverable furnished by Contractor under the terms of this Contract will be subject to Acceptance. The following procedures will apply to Acceptance:

1) The Purchasing Entity shall provide Contractor with (a) written notice of Acceptance of the Deliverable within ten

(10) business days of receiving Deliverable, or (b) a written statement which identities in reasonable detail, with references to the applicable Specifications, the deficiencies preventing Acceptance.

2) Contractor shall have five (5) business days, or such other period mutually agreed upon by the parties in writing, from the date it receives the notice of deficiencies to complete corrective actions to make Deliverable conform in all material respects to the applicable Statement of Work. The Purchasing Entity shall review the corrected Deliverable and notify Contractor in writing of acceptance or rejection in accordance with the foregoing provisions of this section.

3) The Acceptance Date for a Deliverable shall be the date of the written notice of Acceptance of the Deliverable from Purchasing Entity to Contractor.

b) If the Purchasing Entity determines that the Deliverable has been successfully completed, the Purchasing Entity shall in writing notify the Contractor of the Purchasing Entity's Acceptance and the date of such notice will be the Acceptance Date for the Deliverable.

c) If requested by Contractor, Purchasing Entity shall complete Contractor’s acceptance certificate, in a form reasonably acceptable to Purchasing Entity, so long as such certificate does not amend, alter or modify in any way the terms and conditions of this Contract or the obligations hereunder.

9. PARTICIPATION AND PAYMENTS

a) The Purchasing Entity shall pay for Deliverables only upon acceptance of the Deliverable(s) pursuant to Section 8 and receipt of a properly documented invoice from the Contractor.

b) The Purchasing Entity shall pay Contractor within 45 days after the Deliverable Acceptance Date and receipt of Contractor’s properly documented invoice, whichever is the later date.

c) Contractor shall not provide Deliverables under this Contract until the Participating State and Contractor execute a mutually acceptable Participating Addendum and the Purchasing Entity has issued a Purchase Order.

d) The Contract is applicable to any Purchase Order issued by a Participating Entity (and other Purchasing Entities covered by their Participating Addendum), except to the extent the Contract is altered, modified, supplemented or amended by a Participating Addendum. Any alterations, modifications, supplements or amendments to the Contract must be addressed in the Participating Addendum or, with the consent of the Participating Entity and Contractor, may be included in the Purchase Order used by the Purchasing Entity to place the Purchase Order. Such alterations, modifications, supplements or amendments apply only to the Participating Entity signing the Participating Addendum and the Participating Entities or Purchasing Entities ordering under said Participating Addendum.

e) Use of this Contract is subject to the approval of the respective state’s chief procurement official. Subject to applicable law, issues of interpretation and eligibility for participation are solely within the authority of the respective state’s chief procurement official.

f) This Contract and the Participating Addendum are binding only upon the Contractor and the corresponding Participating Entity and Purchasing Entity. The financial obligations of any Participating Entity are limited to those obligations set forth in the Purchase Orders that such particular Participating Entity issues. A Participating Entity’s financial obligations under this Contract, and any corresponding Participating Addendum and Purchase Order, are limited only to those obligations incurred by those Purchasing Entities that are part of that Participating Entity’s state government. Contractor shall email a fully executed PDF copy of each Participating Addendum to PA@NASPOValuePoint.org to support documentation of participation and posting in appropriate data bases.

g) The terms of a Participating Addendum or other participating addenda do not and will not be construed to amend the terms of this Contract between the Lead State and Contractor.

h) Entities who are not states may sign their own Participating Addendum if and to the extent that the chief mailto:PA@NASPOValuePoint.org

IT Vendor Managed Services procurement official of the State where the Participating Entity is located (or such other approval as may be required by law) gives prior approval of such participation in writing. Participating Entities shall coordinate requests for such participation through NASPO ValuePoint at THay@NASPOValuePoint.org. A chief procurement official's approval to a non-state entity to participate through execution of a Participating Addendum is not a determination that the non-state entity has the necessary or appropriate authority to enter into the Participating Addendum. Prior to executing a Participating Addendum, each entity must ensure that it has the requisite authority to execute a Participating Addendum.

i) The Lead State will not have any rights or be responsible for any obligations, financial or otherwise, of any Participating Entity or Purchasing Entity that is not an entity of the Lead State.

j) (1) Payment shall be made only after the Purchasing Entity receives and accepts the Deliverables and after it receives a properly completed invoice. Unless otherwise specified in the Contract or under the laws, regulations, or both, of the state of a Purchasing Entity, payment for all accepted Deliverables are due within forty-five (45) days after acceptance of the Deliverables. The Contractor shall submit an invoice to the Purchasing Entity for the Performance. The invoice shall include detailed information for Deliverables, delivered and Performed, as applicable, and accepted. Any late payment charges shall be calculated in accordance with the laws and regulations of the Purchasing Entity's state.

10. LICENSED SOFTWARE MAINTENANCE & SUPPORT

a) Contractor represents and warrants that maintenance and support services for the Licensed Software shall be provided to the Purchasing Entity at no additional cost:

1. Contractor shall provide reasonable and competent assistance in accordance with the requirements of Exhibit 5;

2. Contractor shall provide Updates and Upgrades to the Licensed Software at no additional cost to Purchasing Entity;

3. Contractor shall update any Deliverable, if and as required, to cause it to operate under new versions or releases of the operating system(s), database system(s), application servers or report servers that comprise the Purchasing Entity’s computer operating environment;

b) Contractor shall maintain sufficient and competent Deliverable support services staff to satisfy the Contractor obligations specified herein for any Deliverable.

c) Contractor shall have access to any Deliverable to provide required services thereon, subject to the Purchasing Entity’s access and security policies.

d) Contractor shall maintain at all times a copy of the most current version of the Licensed Software installed at the Purchasing Entity.

Contractor shall provide the Purchasing Entity a complete list of any platform and specification requirements necessary or appropriate to provide technical support services within 15 days from the date that the Purchasing Entity makes the request.

11. NASPO VALUEPOINT PROVISIONS

a) NASPO ValuePoint is not a party to the Contract. However, the Lead State reserves the right to assign contract administration functions, such as report receipt and coordination of vendor performance reviews, to NASPO ValuePoint.

b) NASPO ValuePoint Cooperative Program Marketing and Performance Review.

mailto:THay@NASPOValuePoint.org

1. Contractor agrees to work cooperatively with NASPO ValuePoint personnel. Contractor agrees to present plans to NASPO ValuePoint for the education of Contractor’s contract administrator(s) and sales/marketing workforce regarding the Contract, including the competitive nature of NASPO ValuePoint procurements, the participating addendum process, and the manner in which qualifying entities can participate in the Contract.

2. Contractor agrees to participate in an annual contract performance review at a location selected by the Lead State and NASPO ValuePoint, which may include a discussion of marketing action plans, target strategies, marketing materials, as well as Contractor reporting and timeliness of payment of administration fees.

c) Administrative Fees

1. The Contractor shall pay to NASPO ValuePoint, or its assignee, an administrative fee (“NASPO ValuePoint Administrative Fee”) of one-quarter of one percent (0.25% or 0.0025) to be calculated against the total vendor managed service fees paid during the quarter no later than sixty (60) days following the end of each calendar quarter.

2. The NASPO ValuePoint Administrative Fee must be submitted quarterly and is based on all sales of Deliverables under the Contract (less any charges for taxes or shipping).

3. The NASPO ValuePoint Administrative Fee is not negotiable.

4. Some States may require that the Contractor pay a fee to the State but only on purchases made by Purchasing Entities within that State.

i. For all such requests, the fee level, payment method and schedule for such reports and payments must be incorporated into the Participating Addendum that is made a part of the Contract.

ii. The Contractor may adjust the Contract pricing accordingly for purchases made by Purchasing Entities within the jurisdiction of such States.

iii. Such agreements will not affect the NASPO ValuePoint Administrative Fee percentage or the prices paid by Purchasing Entities outside the jurisdiction of the State requesting the additional fee.

iv. The NASPO ValuePoint Administrative Fee will be based on the total vendor managed service fees paid during the quarter no later than sixty (60) days following the end of each calendar quarter.

d) Summary and Detailed Usage Reports. Contractor shall provide the following NASPO ValuePoint reports.

Additional reports may be required as identified by the Participating Entity in its Participating Addendum.

1. Summary Sales Data: The Contractor shall submit quarterly sales reports directly to NASPO ValuePoint using the NASPO ValuePoint Quarterly Sales/Administrative Fee Reporting Tool found at http://www.naspo.org/WNCPO/Calculator.aspx . Any and all sales made under this Contract shall be reported as cumulative totals by State. Even if Contractor experiences zero sales during a calendar quarter, a report is still required. Reports shall be due no later than thirty (30) days following the end of the calendar quarter (as specified in the reporting tool).

2. Detailed Sales Data: Contractor shall also report detailed sales data by: (1) State; (2) entity/customer type, e.g. local government, higher education, K12, non-profit; (3) Purchasing Entity name; (4) Purchasing Entity bill-to and ship-to locations; (4) Purchasing Entity and Contractor Purchase Order identifier/number(s); (5) Purchase Order Type (e.g. sales order, credit, return, upgrade, determined by industry practices); (6) Purchase Order date; (7) ship date; (8) and line item description, including product number if used. Reports are due on a quarterly basis and must be received by the Lead State and NASPO ValuePoint Cooperative Development Team no later than thirty (30) days after the end of the calendar quarter. Reports shall be delivered to the Lead State and to the NASPO ValuePoint http://www.naspo.org/WNCPO/Calculator.aspx

Cooperative Development Team electronically through a designated portal, email, CD-Rom, flash drive or other method as determined by the Lead State and NASPO ValuePoint. Detailed sales data reports shall include sales information for all sales under Participating Addenda executed under this Contract.

The format for the detailed sales data report was shown in RFP 14PSX0338, Attachment 7

3. Reportable sales for the summary sales data report and detailed sales data report includes sales to employees for personal use where authorized by the solicitation and the Participating Addendum.

Report data for employees should be limited to ONLY the State and entities that are participating under the authority of the applicable Participating Addendum and the amount of sales. No Confidential Information may be submitted with any report.

4. Contractor shall provide the NASPO ValuePoint Cooperative Development Coordinator with an executive summary each quarter that includes, at a minimum, a list of States with an active Participating Addendum, States that Contractor is in negotiations with and any Participating Addendum roll out or implementation activities and issues. NASPO ValuePoint cooperative development coordinator and Contractor will determine the format and content of the executive summary. The executive summary is due thirty (30) days after the conclusion of each calendar quarter.

5. Timely submission of these reports is a material requirement of the Contract. The recipient of the reports shall have exclusive ownership of the media containing the reports. The Lead State and NASPO ValuePoint shall have a perpetual, irrevocable, non-exclusive, royalty free, transferable right to display, modify, copy, and otherwise use reports, data and information provided under this section.

e) NASPO ValuePoint eMarket Center.

1. In July 2011, NASPO ValuePoint entered into a multi-year agreement with SciQuest, Inc. whereby SciQuest will provide certain electronic catalog hosting and management services to enable eligible NASPO ValuePoint’s customers to access a central online website to view and/or shop the goods and services available from existing NASPO ValuePoint Cooperative Contracts. The central online website is referred to as the NASPO ValuePoint eMarket Center.

2. The Contractor will have visibility in the eMarket Center through Ordering Instructions. These Ordering Instructions are available at no cost to the Contractor and provide customers information regarding the Contractor’s website and ordering information. The Contractor is required at a minimum to participate in the eMarket Center through Ordering Instructions.

3. At a minimum, the Contractor agrees to the following timeline: NASPO ValuePoint eMarket Center Site Admin shall provide a written request to the Contractor to begin Ordering Instruction process. The Contractor shall have thirty (30) days from receipt of written request to work with NASPO ValuePoint to provide any unique information and ordering instructions that the Contractor would like the customer to have.

4. The eMarketCenter has the capability to host a catalog or integrate with a punchout site. While not required for this solicitation, if Contractor later desires to explore the functionality, contact NASPO ValuePoint for the system requirements and implementation terms and conditions.

f) Records Administration and Audit by Purchasing Entities Outside Connecticut.

1. The Contractor shall maintain books, records, documents, and other evidence pertaining to this Contract and Purchase Orders placed by Purchasing Entities under it to the extent and in such detail as shall adequately reflect performance and administration of payments and fees. Contractor shall permit a Participating Entity, a Purchasing Entity, the federal government (including its grant awarding entities and the U.S. Comptroller General), and any other duly authorized agent of a governmental agency, to audit, inspect, examine, copy and/or transcribe Contractor's books, documents, papers and records directly pertinent to Purchase Orders placed by a Purchasing Entity under it for the purpose of making audits, examinations, excerpts, and transcriptions. This right shall survive for a period of five (5) years following termination of this Contract or final payment for any order placed by a Purchasing Entity against this Contract, whichever is later, or such longer period as is required by the Purchasing Entity’s state statutes, to assure compliance with the terms hereof or to evaluate performance hereunder.

2. Without limiting any other remedy available to any governmental entity, the Contractor shall reimburse the applicable Purchasing Entity for any overpayments inconsistent with the terms of the Contract or Purchase Orders or underpayment of fees found as a result of the examination of the Contractor’s records.

g) Governing Law for Orders by Purchasing Entities Outside Connecticut.

1. The construction and effect of the terms of any Participating Addendum or Purchase Order issued against the Contract shall be governed by and construed in accordance with the laws of the Participating Entity’s or Purchasing Entity’s state.

2. Venue for any claim, dispute, or action concerning the any Purchase Order placed against the Contract or the effect of a Participating Addendum shall be in the Purchasing Entity’s state.

12. RESERVED

13. RESERVED

14. RESERVED

15. RESERVED

16. LICENSED SOFTWARE

a) In the event any Licensed Software Deliverable becomes the actual or prospective subject of any patent, copyright, license & proprietary rights claim or proceeding, Contractor may, at its discretion:

1. Modify the Deliverable or substitute another equally suitable Deliverable (provided that the performance of the modified or substitute Deliverable equals or exceeds that of the original Deliverable);

2. Obtain for the Purchasing Entity the right to continued use of the Deliverable; or

b) Contractor shall not have any liability for any infringement claim or proceeding based on the Purchasing Entity's use of a Deliverable for which it was neither designed nor intended.

c) The Purchasing Entity shall maintain the confidentiality of any such Licensed Software Deliverable consistent with its privileged nature, and shall not divulge the Deliverable or make it available to any third party, except as may be noted elsewhere in this Contract or as it may be required under (1) the Connecticut Freedom of Information Act, in a matter involving the Lead State or (2) the laws and regulations of a Purchasing Entity's state, in a matter involving a Purchasing Entity. This obligation survives the expiration or early termination of this Contract.

d) None of the Lead State, Participating Entity or the Purchasing Entity shall reproduce, create derivative works, translate, reverse engineer or decompile the Licensed Software, in whole or in part, nor create or attempt to create, by reverse engineering or disassembling of the design, algorithms or other proprietary trade secrets of the Licensed Software.

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17. RESERVED

18. RESERVED

19. CONFIDENTIALITY; NONDISCLOSURE

a) The Lead State, Participating Entities and Purchasing Entities shall exercise at least the same degree of care to safeguard any trade secrets or confidential information of Contractor as the Lead State, Participating Entities and Purchasing Entities do their own property of a similar nature and shall take reasonable steps to assure that neither the Licensed Software nor any part thereof received by the Lead State, Participating Entities or Purchasing Entities under this Contract shall be disclosed for reasons other than their respective business operations. Such prohibition on disclosures shall not apply to disclosures by the Lead State, Participating Entities or Purchasing Entities to employees or representatives, provided such disclosures are reasonably necessary to the Lead State, Participating Entity’s or Purchasing Entity’s use of the Deliverable, and provided further that each shall take all reasonable steps to ensure that the Deliverable is not disclosed in contravention of this Contract. The Performance of the requirements of this section shall be subject to the State’s applicable freedom of information act or law, as amended, in a matter involving the Lead State, or to the laws and regulations of a Purchasing Entity's state, in a matter involving a Purchasing Entity.

b) All Records, including any data owned by the Lead State, Participating Entity or Purchasing Entity in any form, in the possession of the Contractor or Contractor Parties must remain within the United States and may be not be stored, hosted or otherwise maintained outside of the United States.

20. PROTECTION OF CONFIDENTIAL INFORMATION

a) Contractor and Contractor Parties, at their own expense, have a duty to and shall protect from a Confidential Information Breach any and all Confidential Information which they come to possess or control, wherever and however stored or maintained, in a commercially reasonable manner in accordance with current industry standards.

b) Each Contractor or Contractor Party shall develop, implement and maintain a comprehensive data - security program for the protection of Confidential Information. The safeguards contained in such program shall be consistent with and comply with the safeguards for protection of Confidential Information, and information of a similar character, as set forth in all applicable federal and state law and written policy of the Purchasing Entity’s State concerning the confidentiality of Confidential Information. Such data-security program shall include, but not be limited to, the following:

1. A security policy for employees related to the storage, access and transportation of data containing Confidential Information;

2. Reasonable restrictions on access to records containing Confidential Information, including access to any locked storage where such records are kept;

3. A process for reviewing policies and security measures at least annually;

4. Creating secure access controls to Confidential Information, including but not limited to passwords; and

5. Encrypting of Confidential Information that is stored on laptops, portable devices or being transmitted electronically.

c) The Contractor and Contractor Parties shall notify the Lead State, the Purchasing Entity and the Connecticut Office of the Attorney General as soon as practical, but no later than twenty-four (24) hours, after they become aware of or suspect that any Confidential Information which Contractor or Contractor Parties have come to possess or control has been subject to a Confidential Information Breach. If a Confidential Information Breach has occurred, the Contractor shall, within three (3) business days after the notification, present a credit monitoring and protection plan to the

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Commissioner of Administrative Services, the Purchasing Entity and the Connecticut Office of the Attorney General, for review and approval. Such credit monitoring or protection plan shall be made available by the Contractor at its own cost and expense to all individuals affected by the Confidential Information Breach. Such credit monitoring or protection plan shall include, but is not limited to reimbursement for the cost of placing and lifting one (1) security freeze per credit file pursuant to Connecticut General Statutes § 36a-701a. Such credit monitoring or protection plans shall be approved by the Participating Entity in accordance with this section and shall cover a length of time commensurate with the circumstances of the Confidential Information Breach. The Contractors’ costs and expenses for the credit monitoring and protection plan shall not be recoverable from the Lead State, the Purchasing Entity, any entity therein, or any affected individuals.

d) The Contractor shall incorporate the requirements of this section in all subcontracts requiring each Contractor Party to safeguard Confidential Information in the same manner as provided for in this section.

e) Nothing in this section shall supersede in any manner Contractor’s or Contractor Party’s obligations pursuant to the Health Insurance Portability and Accountability Act of 1996 or any provisions of this Contract concerning the obligations of the Contractor as a business associate of a covered entity (as such terms are defined in 45 C.F.R. § 160.103).

21. FEDERAL FUNDS

Pursuant to Appendix II to 2 Code of Federal Regulations (CFR) Part 200, Contract Provisions for Non-Federal Entity Contracts Under Federal Awards, Purchase Orders funded with federal funds may have additional contractual requirements or certifications that must be satisfied at the time the Purchase Order is placed or upon delivery. These federal requirements may be proposed by Participating Entities in Participating Addenda and Purchasing Entities for incorporation in Purchase Orders placed under this Contract.

22. RISK OF LOSS & INSURANCE

a) The Purchasing Entity shall not be liable to Contractor for any risk of Deliverable loss or damage while Deliverable is in transit, or while in the Purchasing Entity’s possession, except when such loss or damage is due directly to the Purchasing Entity’s negligence or intentional misconduct. Nothing in this section is intended nor shall it be construed, in any manner, as waiving or compromising the sovereign immunity of any state.

b) Throughout the Term, Contractor shall maintain, at Contractor’s sole cost and expense, a policy or policies of commercial general liability insurance, including contractual liability coverage, in an amount not less than $1,000,000.00 for all damages arising out of bodily injuries to, or death of, all persons and injuries to or destruction of property, in any one accident or occurrence, and, subject to that limit per accident, a total (or aggregate) limit of $2,000,000.00 per occurrence for all damages arising out of bodily injuries to, or death of, all persons and injuries to or destruction of property per policy period. Such insurance policy or policies shall name the Lead State as additional insured. The Contractor shall cause the Lead State to be named as an additional insured on the policy and shall provide (1) a certificate of insurance, (2) the declaration page and (3) the additional insured endorsement to the policy to DAS, all in an electronic format acceptable to the Lead State, prior to the Effective Date of the Contract. The Contractor shall not begin Performance until the delivery of these three documents to the Lead State. Contractor shall provide an annual electronic update of the three documents to the Lead State on or before each anniversary of the Effective Date during the Term.

Contractor shall also name the Participating Entity, and if requested the Purchasing Entity, as additional insureds to its insurance policies. Contractor shall provide the Participating Entity a certificate of insurance evidencing the above coverage on an annual basis and shall not begin performance of the Services until such a certificate has been provided to such Participating Entity, and if requested, Purchasing Entity.

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c) During the Term, and for a period of three (3) years thereafter, the Contractor shall carry Professional Liability Insurance in the amount of $1,000,000 per Claim and Annual Aggregate. Contractor shall provide the Lead State a certificate of insurance evidencing such Professional Liability Insurance coverage upon written request on an annual basis and shall not begin Performance of the Services until such a certificate has been provided to the Lead State, or in connection with a Participating Addendum, the Participating Entity and if applicable, Purchasing Entity.

d) All insurance with the exception of the professional liability insurance required under (c) above must be written on an occurrence basis as opposed to “claims made” basis.

23. DELIVERABLE ALTERATIONS

a) This section applies only to Deliverables that do not include or incorporate Licensed Software as an operational component and applies only to Alterations made during the Warranty Period.

b) During the Warranty Period, Alterations of a Deliverable may be made by the Purchasing Entity only with the prior written consent of Contractor and/or manufacturer. Such consent shall not be unreasonably withheld or delayed and shall be provided without cost to the Purchasing Entity.

24. FORCE MAJEURE

Neither party shall be responsible for delays or failures in its obligations herein due to any cause beyond its reasonable control.