Accenture Contract 505ENT-01 SALESFORCE-01_Redacted.pdf

Contract # 505ENT-O17-SALESFORCE-01 2 of 31 Salesforce Implementation Services

TABLE OF CONTENTS

1. DEFINITIONS

2. APPLICABLE LAW

3. CONTRACT TERM

4. CONTRACT AMENDMENTS

5. CONTRACT TERMINATION FOR CAUSE

6. CONTRACT TERMINATION FOR CONVENIENCE

7. CONTRACT CANCELLATION

8. TERMINATION OF PURCHASE ORDER

9. CHANGE ORDERS

10. TRANSITION SERVICES

11. POST CONTRACT OBLIGATIONS

12. PRIME CONTRACTOR; CONTRACTOR COMPLIANCE; RESPONSIBILITY FOR ACTIONS

13. ROLLING ESTOPPEL

14. NON-APPROPRIATION

15. INSURANCE RESPONSIBILITY

16. NONDISCRIMINATION AND AFFIRMATIVE ACTION

17. PAYMENT OFFSETS FOR CONTRACTOR’S DELINQUENCY

18. CONTRACTOR LIABILITY FOR INJURY TO PERSONS OR DAMAGE TO PROPERTY

19. GENERAL INDEMNITY

20. CONFIDENTIAL INFORMATION

21. INTELLECTUAL PROPERTY INFRINGEMENT

22. SECURITY OF PREMISES, EQUIPMENT, DATA AND PERSONNEL

23. RENDERING OF SERVICES, ACCEPTANCE AND INSPECTION

24. CONTRACTOR PERSONNEL

25. SHIPPING

26. RISK OF LOSS

27. IDENTIFICATION

28. LIENS, CLAIMS AND ENCUMBRANCES

29. WARRANTY

30. RECEIPT OF GOODS

31. PERFORMANCE

32. SPECIFICATIONS

33. INDEPENDENT CONTRACTOR

34. COOPERATION WITH OTHER CONTRACTORS

35. STATE EMPLOYEES

36. ANTITRUST ASSIGNMENT

37. REFUND OF CREDITS

38. PAYMENT TERMS AND INVOICING

39. STATE TAX EXEMPTION

40. PROMOTIONAL ADVERTISING AND NEWS RELEASES

41. NOTICE AND CHANGE OF CONTACT INFORMATION

42. RECORDS, RECORDKEEPING AND RECORD RETENTION

43. AUDIT; EXAMINATION OF RECORDS

44. BREACH NOT WAIVER

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45. ASSIGNMENT OF CONTRACT

46. SEVERABILITY

47. CONTRACT DISPUTE RESOLUTION

48. FORCE MAJEURE

49. NO AGENCY RELATIONSHIP

50. DISCLOSURE

51. OTHER DOCUMENTS

52. RATE CARD

53. SERVICES PERFORMED IN UNITED STATES

54. HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (HIPAA)

55. LIMITATION OF LIABILITY

56. RESPONSIBILITIES

Contract # 505ENT-O17-SALESFORCE-01 4 of 31 Salesforce Implementation Services

STATE OF WISCONSIN SERVICES CONTRACT

1. DEFINITIONS

Words and terms shall be given their ordinary and usual meanings. Unless negotiated otherwise by the parties, where capitalized, the following words and terms shall have the meanings indicated.

The meanings shall be applicable to the singular, plural, masculine, feminine and neuter.

“Acceptance” means a manifestation of assent by the Authorized User to the terms, Services, Deliverables or other items offered by the Contractor under the Contract after Inspection by the Authorized User.

“Additional Services” means Service or Deliverable within the scope of the Contract, but not specifically provided under any Statement of Work.

“Agency” or “State Agency” means an office, department, agency, institution of higher education, association, society or other body in the State of Wisconsin government created or authorized to be created by the State Constitution or any law, which is entitled to expend moneys appropriated by law, including the legislature and the courts, but not including an authority, as defined in Wis. Stat.

s. 16.70(2).

“Authorized User” means state agencies, political subdivisions, and municipalities authorized by state statutes to use state contracts.

“Business Day” means any day on which the Contracting Agency is open for business.

“Confidential Information” means all tangible and intangible information and materials being disclosed by the parties to each other in connection with this Contract, in any form or medium without regard to whether the information is owned by the Authorized User or by a third party, which satisfies at least one of the following criteria: (i) Personally Identifiable Information; (ii) Proprietary Information; (ii) non-public information related to the parties’ employees or customers; (iii) technology (including data bases, data processing and communications networking systems), schematics, specifications, and all information or materials derived therefrom or based thereon; or (iv) information expressly designated as confidential in writing by Disclosing Party or, if not expressly designated, would be understood to be Confidential Information by a reasonable person under the circumstances. Confidential Information includes all information that is restricted or prohibited from disclosure by state or federal law.

“Contract” means the final version of any contractually binding agreement between the State and the Contractor relating to the subject matter of this RFP; references to the Contract include all exhibits, attachments and other documents attached thereto or incorporated therein by reference.

Also referred to as “Agreement”.

“Contract Administrator” means the individual in DOA’s Division of Enterprise Technology (DET) responsible for administering day-to-day operational matters of the Contract.

“Contract Manager” means the individual in the State Bureau of Procurement (SBOP) responsible for managing this RFP and subsequent contractual issues.

“Contracted Personnel” means a Contractor’s employees or other personnel (including officers, agents and Subcontractors) provided by the Contractor specifically to render Services under this Contract.

“Contracting Agency” means the Agency entering into this Contract on behalf of the State.

“Contractor” means the entity entering into this Agreement with the State.

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“Critical Defect” means fatal errors that mean that testing cannot continue without fix, and/or means that the service cannot go-live. Must be fixed before go-live.

“Day” means calendar day unless otherwise specified in this Contract.

“Default” means the omission or failure to perform in material compliance a contractual duty or provide Deliverables or render Services in material compliance as contractually required.

“Deliverables” means all project materials, including Goods, software licenses, data, and documentation created during the rendering of Services hereunder. Deliverables shall be the property of the Authorized User unless otherwise specified in the Contract.

“Goods” means articles of trade or items of merchandise, supplies, raw materials, or finished products, and may also include incidental or related services as the situation may require.

“High Defect” means there is a problem that means that testing can continue on the scenario using difficult workarounds, and/or significantly impacts the ability to use the application or operate the service. Must be fixed before go-live.

“Inspection” means an examination of Deliverables or Services provided under this Contract in order to determine their fitness for use.

“Key Personnel” means specifically identified Contracted Personnel that play a lead and critical role in rendering Services during the Contract term.

“Low Defect” – Used to highlight minor service issues that will be fixed only if time permits and does not impact the ability to use the application operate the service (e.g. cosmetic).

“Medium Defect”– Used when there is a problem that means that testing can continue with relatively straightforward workarounds, and/or has a minor impact on the ability to use the application or operate the service. Must be fixed before go-live unless agreed otherwise by the parties.

“Municipality” means any county, city, village, town, school district, board of school directors, sewer district, drainage district, vocational, technical and adult education district, or any other public body having the authority to award public contracts (Wis. Stats s. 16.70(8), Wis. Stats.) and Federally recognized Indian tribes and bands per Wis. Stats. ss. 66.0301(1) and (2).

“Personally Identifiable Information” means an individual’s last name and the individual’s first name or first initial, in combination with and linked to any of the following elements, if that element is not publicly available information and is not encrypted, redacted, or altered in any manner that renders the element unreadable: (a) the individual’s Social Security number; (b) the individual’s driver’s license number or state identification number; (c) the number of the individual’s financial account, including a credit or debit card account number, or any security code, access code, or password that would permit access to the individual’s financial account; (d) the individual’s DNA profile; or (e) the individual’s unique biometric data, including fingerprint, voice print, retina or iris image, or any other unique physical representation, and any other information protected by state or federal law.

“Proprietary Information” means Confidential Information of either party, including a formula, pattern, compilation, program, device, method, technique or process to which all of the following apply:

a. The information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.

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b. The information is the subject of efforts to maintain its secrecy that are reasonable under the circumstances.

“Properly-submitted Invoice” is one that is submitted in accordance with instructions contained on the Authorized User’s Purchase Order, includes a reference to the proper Purchase Order number, and is submitted to the proper address for processing.

“Purchase Order” means the Authorized User’s standard document of a purchase of Deliverables and Services and may reference a SOW. Also called “Order.”

“Services” means all work performed, and labor, actions, recommendations, plans, research, customizations, modifications, documentation, and maintenance and support provided by the Contractor as per Authorized User´s Purchase Order and mutually agreed to Statements of Work (when included with the Purchase Order).

“SOW” means Statement of Work. The SOW may be referenced on an Order.

“State” means the State of Wisconsin.

“Subcontract” means an agreement, written or oral between the Contractor and any other party to fulfill the requirements and performance obligations of this Contract.

“Subcontractor” means an entity that enters into a Subcontract with the Contractor for the purpose of delivering Deliverables or performing obligations of this Agreement or rendering Services to the Authorized User.

2. APPLICABLE LAW

This Contract shall be governed by the laws of the State of Wisconsin. Venue for any action brought under this Contract shall lie in Madison, Dane County, Wisconsin.

3. CONTRACT TERM

The initial term of this Contract begins on the effective date and ends August 23, 2018. The initial term is subject to change and will be at the sole discretion of the State. This Contract is eligible for two (2) mutually agreed upon one-year renewals, unless terminated as provided herein. To ensure the delivery of improved services and competitive pricing, to address potential performance issues, changes in technology or industry consolidation, both parties reserve the right to negotiate the pricing and terms at the time of Contract renewal.

Only incomplete projects with an active Order which is not closed may be completed after contract expiration under the same terms and conditions of the last term of the Contract. For all Authorized Users except State Agencies, such active Orders cannot exceed 12 months following contract termination or expiration. Specific to State Agencies, an active Order which is not closed after contract termination or expiration may cannot exceed the term of the then-current fiscal year.

4. CONTRACT AMENDMENTS

The State and Contractor may amend the Contract only by a written amendment to the Contract by an authorized representative of each party (an “Amendment”).

5. CONTRACT TERMINATION FOR CAUSE

The State may terminate this Contract after providing the Contractor with thirty (30) Days written notice of the Contractor’s right to cure a Default.

The Contractor may terminate this Contract after providing the State with thirty (30) Days written notice of the State’s right to cure a failure to perform under the terms of this Contract.

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

6. CONTRACT TERMINATION FOR CONVENIENCE

The State may terminate this Contract at any time, without cause, by providing a written notice to the other party at least thirty (30) Days in advance of the intended date of termination.

Contractor may terminate this Contract at any time, without cause, by providing a written notice to the other party at least thirty (30) Days in advance of the intended date of termination.

In the event of a termination for convenience, the Contractor shall be entitled to receive compensation for any completed or partially completed Services rendered or Deliverables provided under the Contract.

In the event of a termination for convenience by the State, Contractor shall be entitled to receive compensation for any fees owed under the Contract by an Authorized User. Compensation for partially completed Services shall be no more than the percentage of completion of the Services requested, multiplied by the corresponding payment for completion of such Services as set forth in the Contract. Alternatively, at the sole discretion of the Authorized User, the Contractor may be compensated for the actual Service hours provided. The Authorized User shall be entitled to a refund for Deliverables or Services paid for but not received or rendered, such refund to be paid within 30 Days of written notice to the Contractor requesting the refund.

When written notice is provided, the State is referring to the date on the notice as the effective date of such notice.

7. CONTRACT CANCELLATION

7.1 The State reserves the right to cancel this Contract in whole or in part without penalty, and without prior notice, if the Contractor:

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

Makes an assignment for the benefit of creditors

Fails to maintain and keep in force all required insurance, permits and licenses as provided in this Contract;

Fails to maintain the confidentiality of the State’s information that is considered to be Confidential Information, or

Performs in a manner that threatens the health or safety of a State employee, citizen, or customer.

7.2 The State reserves the right to cancel this Contract in whole or in part without penalty, and with 30 Days prior notice, if the Contractor:

Fails to follow the sales and use tax certification requirements of s. 77.66 of the Wisconsin Statutes;

Incurs a delinquent Wisconsin tax liability;

Fails to submit a non-discrimination or affirmative action plan as required herein.

Fails to follow the non-discrimination or affirmative action requirements of such. II, Chapter 111 of the Wisconsin Statutes (Wisconsin’s Fair Employment Law); or

Becomes a Wisconsin or federally debarred contractor.

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7.3 The Contractor may cure any of the deficiencies in this Section within thirty (30) days of receiving written notice of said deficiency from the State.

8. TERMINATION OF PURCHASE ORDER

The Authorized User may terminate a specific Purchase Order and related documents such as a SOW issued under this Contract and may provide a reasonable opportunity to cure a default, if applicable. The Authorized User and Contractor will agree upon any notice and cure provisions for termination in the applicable PO or SOW.

9. CHANGE ORDERS

The parties may change the scope of the Services and Deliverables and other matters specified in a Purchase Order and/or SOW only by a written amendment to the Purchase Order, and if applicable the SOW executed by an authorized representative of each party (a “Change Order”).

10. TRANSITION SERVICES

Upon cancellation, termination, or expiration of this Contract for any reason, the Contractor shall provide reasonable cooperation, assistance and Services, and, unless otherwise agreed in the specific Order and related SOW(s), shall assist the Authorized User in the migration of the Authorized User's production operations to the Authorized User's control or to the control of an alternative contractor upon written notice to the Contractor at least thirty (30) Business Days prior to termination, and subject to the terms and conditions set forth herein. This Contract may be extended, as per the State and Contractor’s mutual agreement, by the number of days that training or continued Services which may be necessary to be performed in order to complete the transition, not to exceed 12 months following termination or Contract expiration. The Contractor's Services required to complete the transition after the notice set forth herein shall be subject to Change Order to the applicable Purchase Order or SOW(s). Such services shall be provided at the Contractor’s current contract rates, or such lower rates as agreed by the Parties.

11. POST CONTRACT OBLIGATIONS

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

12. PRIME CONTRACTOR; CONTRACTOR COMPLIANCE; RESPONSIBILITY FOR ACTIONS

Contractor is the Prime Contractor. Subcontractors are permitted to perform Services on this Contract. The Prime Contractor shall be the sole point of contact with regard to all contractual matters arising hereunder, including the performance of services and the payment of any and all charges resulting from its contractual obligations.

Contractor and Subcontractors shall at all times comply with and observe all federal, state, and local laws, ordinances, and regulations that are in effect during the term of this Contract applicable to the Contractor in its performance of the Services.

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

13. ROLLING ESTOPPEL

The Authorized User assumes the obligation for the resources as indicated in the Statement of Work or Order. The Authorized User will be conclusively deemed to have fulfilled its obligations, unless it receives a deficiency report from the Contractor by the fifteen (15th) day of the month

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The Contractor is estopped from claiming that a situation has arisen that might otherwise justify changes in the project timetable, the standards of performance under the Agreement or the contract price, if the Contractor knew of that problem and failed to include it in the applicable report.

In the event the Contractor identifies a situation where the Authorized User is impairing the Contractor’s ability to perform for any reason, the Contractor’s deficiency report should contain the Contractor’s suggested solutions to the situation(s). These suggestions should be in sufficient detail so that the Authorized User’s project managers can make a prompt decision as to the best method of dealing with the problem and continuing the project in an unimpeded fashion.

If the problem is one that allows the Contractor (within the terms of the Contract) to ask for changes in the project timetable, the standards of performance, the project quoted total price, or all of these elements, the report should comply with the Change Order procedures.

14. NON-APPROPRIATION

The State reserves the right to cancel this Contract in whole or in part without penalty if the Legislature fails to appropriate funds necessary to complete the Contract.

15. INSURANCE RESPONSIBILITY

15.1 Providing and maintaining adequate insurance coverage described herein is an obligation of the Contractor. All such insurance shall meet all laws of the State of Wisconsin. Such insurance coverage shall be obtained from companies that are authorized to provide such coverage and that are authorized by the Commissioner of Insurance to do business in Wisconsin unless otherwise approved by the Department of Administration’s Bureau of State Risk Management. The Contractor shall at all times comply with the terms of such insurance policies, and all requirements of the insurer under any such insurance policies. The limits of coverage under each insurance policy maintained by the Contractor shall not be interpreted as limiting or expanding the Contractor’s liability and obligations under the Contract.

Where specific limits are shown, they are the minimum acceptable limits. Contractor also agrees to provide evidence that the General Liability, Auto Liability, and Workers’ Compensation insurance policies contain a waiver of subrogation by the insurance company.

Subject to a mutually negotiated Change Order, the State reserves the right to require higher limits where warranted.

Authorized Users reserve the right to request a higher limits where warranted and agreed in each applicable PO/SOW and such specific changes would not be made unilaterally to all other PO/SOW documents.

15.2 Commercial General Liability with a minimum of one million dollars ($1,000,000) liability for bodily injury and property damage including products liability and completed operations per occurrence and in the aggregate. The Contractor must list the State of Wisconsin, its departments, divisions, agencies, offices, commissions, officers, employees and agents as ADDITIONAL INSUREDS on the Commercial General Liability certificate.

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15.3 Auto Liability Insurance if an owned, non-owned or hired vehicle is used to provide services or products under the Contract, the Contractor must have vehicle liability insurance of one million dollars ($1,000,000) combined single limit for automobile liability and property damage. Coverage for Auto Liability Insurance may be on a separate policy.

15.4 Workers’ Compensation Coverage. Maintain workers’ compensation insurance as required by Wisconsin Statutes, for all employees engaged in the work. If a self-insurer provides the applicable coverage, proof must be provided of approved self-insured authority by the jurisdiction of domicile. For employees working outside of the state of qualification, Contractor must provide appropriate certificates of insurance proving mandated coverage levels for the jurisdictions where the employees’ activities occur. The contractor also agrees to provide evidence that the U.S.

Workers’ Compensation insurance policy contains a waiver of subrogation by the insurance company. This provision must not be applicable where prohibited or limited by the laws of the jurisdiction in which the work is to be performed.

15.5 Subcontractor Insurance Coverage. Except where the State has approved in writing a Contractor subcontract with other insurance provisions, Contractor must require all of its Subcontractors under this Contract to purchase and maintain the insurance coverage deemed by the Contractor to be commensurate with the services provided by the Subcontractor.

15.6 Certificates of Insurance and Other Requirements. Contractor must furnish to the State, certificate(s) of insurance verifying insurance coverage as required in this section (the “Certificates”). The Certificate must be on the standard “ACORD” form or equivalent. The Contract Number must be shown on the Certificate of Insurance to assure correct filing. The Contractor must list the State of Wisconsin, its departments, divisions, agencies, offices, commissions, officers, employees and agents as ADDITIONAL INSUREDS on the Commercial General Liability certificate.

All Certificate(s) are to be prepared and submitted by the Insurance Provider or Broker. Contractor shall provide thirty (30) Days prior written notice of policy cancellation or non-renewal, except for ten (10) days for non-payment or premium, to the State contract manager. Before the Contract is signed, and not less than ten (10) Days after the insurance expiration date every year thereafter, the Contractor must provide renewal certificates of insurance evidencing that the State and its agents, officers and employees are listed as additional insured under each commercial general liability and commercial automobile liability policy.

15.7 The Contractor must maintain all required insurance coverage throughout the term of the Contract and any contract renewals. The minimum limits of coverage specified above are not intended, and must not be construed; to limit any liability or indemnity of Contractor under this Contract to any indemnified party or other persons. Contractor is responsible for all deductibles with regard to the insurance. If the Contractor fails to pay any premium for required insurance as specified in this Contract, or if any insurer cancels or significantly reduces any required insurance as specified in this Contract without the State’s written consent, then the State may, after the State has given the Contractor at least thirty (30) Days written notice, pay the premium or procure similar insurance coverage from another company or companies. The State may deduct any part of the cost from any payment due the Contractor, or the Contractor must pay that cost upon demand by the State.

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16. NONDISCRIMINATION AND AFFIRMATIVE ACTION

The Contractor shall not discriminate against any employee or applicant for employment because of age, race, religion, color, handicap, sex, physical condition, national origin, developmental disability as defined in § 51.01(5), Wis. Stats., or sexual orientation as defined in §111.32(13m), Wis. Stats.

This provision shall include, but is not limited to, employment, upgrading, demotion or transfer;

recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Except with respect to sexual orientation, the Contractor shall take affirmative action to ensure equal employment opportunities.

Contractor shall submit a written affirmative action plan to the State. The Contractor may request the notice to be reviewed by the State Affirmative Action Program Manager for compliance.

The Contractor shall post a notice provided by the State, setting forth the provisions of the State's nondiscrimination laws, virtually via website or conspicuous places in order that the Contractor’s employees and applicants for employment are able to read it.

Failure to comply with the conditions of this provision may result in the following consequences:

termination of this Contract as provided in Section 6, Contract Cancellation herein, designation of the Contractor as "ineligible" for future consideration as a responsible, qualified Proposer or proposer for State contracts, or withholding of a payment due under the Contract until the Contractor is in compliance.

17. PAYMENT OFFSETS FOR CONTRACTOR’S DELINQUENCY

Upon written notice, The Authorized User shall offset contractual payments made to the Contractor in an amount necessary to satisfy a certified or verifiable delinquent payment owed to the State, or to any state or local unit of government. The Authorized User also reserves the right to cancel the Order if the delinquency is not satisfied by the offset or other means during the Contract. The State also reserves the right to cancel this Contract as provided in Section 6, Contract Cancellation, if the delinquency is not satisfied by the offset or other means during the term of the Contract.

18. CONTRACTOR LIABILITY FOR INJURY TO PERSONS OR DAMAGE TO PROPERTY

The Contractor shall be liable for damages arising out of personal injuries and/or damage to real or tangible personal property of the State, its officers, agents and employees, and third parties, to the extent that the injury or damage was caused by the fault or negligence of the Contractor. The Contractor shall indemnify, defend and hold the State and its officers, employees, agents and assigns harmless from any liability for personal injury to real or tangible personal property of third parties arising out of the ordinary negligence, willful or wanton negligence, or intentional acts of the Contractor, its officers, employees, agents, assigns or Subcontractors, in the performance of the awarded Contract. Contractor shall not be liable for damages arising out of or caused by an alteration or an attachment not made or installed by the Contractor, or for damage to alterations or attachments that may result from the normal operation and maintenance of the Contractor’s goods.

19. GENERAL INDEMNITY

The Contractor shall hold and save the State, its officers, agents and employees, harmless from liability of any kind, including all claims and losses, accruing or resulting to any third party arising out of Contractor’s performance of its Services provided under this Contract.

The foregoing indemnification and defense by the Contractor shall be conditioned upon the following:

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i) The State shall give Contractor written notice within thirty (30) days after it has actual knowledge of any such claim(s) or action(s) filed; and

ii) The Contractor shall have the sole control of the defense of any such claim(s) or action(s) filed and of all negotiations relating to settlement or compromise thereof, provided; however, that the Authorized User or State have the option to participate at their own expense in the defense of such claim(s) or action(s) filed.

Contractor shall not be liable for damages arising out of or caused by an alteration or an attachment not made or installed by the Contractor, or for damage to alterations or attachments that may result from the normal operation and maintenance of the Contractor’s goods.

If a successful claim of infringement is made, or if the Contractor reasonably believes that an infringement claim that is pending may actually succeed, the Contractor will do one of the following four things, at Contractor’s option so long as Contractor acts within thirty (30) days of notification of such claim or decision:

(i) Modify the Deliverable so that it no longer is infringing;

(ii) Replace the Deliverable with an equivalent or better item;

(iii) Acquire the right for the Authorized User to use the Deliverable as it was intended for the Authorized User to use under this Contract; or

(iv) Remove the Deliverable and refund the fee the Authorized User paid for the Deliverable and the fee for any other Deliverable that required the availability of the infringing

Deliverable for it to be useful for the Authorized User.

The remedies listed in this section constitute the sole remedies and Contractor’s entire liability with respect to infringement.

The provisions of this section shall survive termination of this Contract.

20. CONFIDENTIAL INFORMATION

20.1 In connection with the Contractor’s performance hereunder, it may be necessary for one party (the “Disclosing Party”) to disclose to the other party (the “Receiving Party”) Confidential Information. The Receiving Party shall not use such information for any purpose other than the limited purposes set forth in this Contract, and all related and necessary actions taken in fulfillment of the obligations thereunder. The Receiving Party shall hold all such Confidential Information in confidence, and shall not disclose such information to any persons other than (i) as expressly set forth in an Order, (ii) to its directors, officers, employees, and contractors who have a business-related need to have access to such Confidential Information in furtherance of the limited purposes of this Contract and who have been apprised of, and agree to maintain, the confidential nature of such Confidential Information in accordance with the terms of this Contract.

The Receiving Party shall maintain such security procedures as are commercially reasonable to maintain the confidentiality of such Confidential Information while in its possession or control, including transportation, whether physically or electronically, in no event using less than a reasonable standard of care.

The Receiving Party shall ensure that all indications of confidentiality contained on or included in any item of such information shall be reproduced by Receiving Party on any reproduction, modification, or translation of such Confidential Information. If requested by Disclosing Party, the Receiving Party shall make a reasonable effort to add a proprietary notice or indication of

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Nothing in this Contract will prohibit or limit either party’s use of information (including, but not limited to, ideas, concepts, know-how, techniques, and methodologies) (i) previously known to it without an obligation not to disclose such information, (ii) independently developed by or for it without use of the information, (iii) acquired by it from a third party which was not, to the Contractor’s knowledge, under an obligation not to disclose such information, or (iv) which is or becomes publicly available through no breach of this Contract.

The Contractor shall maintain all such Confidential Information for a period of six (6) years from the date of termination of this Contract, and shall thereafter return or destroy said information as directed by the Authorized User. The Contractor may retain for its archival purposes any Confidential Information related to the performance of the Services, provided that it retains such copies in accordance with its confidentiality obligations hereunder.

20.2 Equitable Relief in Event of Breach

Each party acknowledges and agrees that the unauthorized use, disclosure, or loss of Confidential Information (which includes Personally Identifiable, or Proprietary Information) may cause immediate and irreparable injury to the individuals whose information is disclosed and to the Disclosing Party, which injury may not be compensable by money damages and for which there may not be an adequate remedy available at law. Accordingly, the parties specifically agree that the Disclosing Party, on its own behalf or on behalf of the affected individuals, may seek injunctive or other equitable relief to prevent or curtail any such breach, threatened or actual, without posting security and without prejudice to such other rights as may be available under this Contract or under applicable law. Each party will exercise commercially reasonable efforts not to disclose any Personally Identifiable Information to the other party and to restrict the other party’s access to its Personally Identifiable Information, but if a party is given access to the other party’s Personally Identifiable Information, the receiving party will protect such Personally Identifiable Information using a reasonable standard of care. If Contractor requires access to the State’s Personally Identifiable Information in connection with the services under an Order, this shall be specified in an Order. The parties will agree in the applicable Order on any additional protocols and obligations of each party with respect to the access, use protection of, and liability for the loss of, Personally Identifiable Information (Data Protection Protocols).

21. INTELLECTUAL PROPERTY INFRINGEMENT

If promptly notified by State of a third party claim that any Contractor Deliverable infringes a patent, copyright, or trade secret of any third party, Contractor shall at its own expense indemnify, defend and hold the State harmless from any claims brought against the State for any alleged patent, copyright, or other intellectual right or infringement.

Contractor will not indemnify State, however, if the claim of infringement is caused by:

(a) Authorized User’s modification of the Deliverable or use of the Deliverable other than as contemplated by this Contract, damage to alterations or attachments that may result from the normal operation, and maintenance of Contractor’s goods;

(b) Authorized User’s failure to use corrections or enhancements made available by Contractor;

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(c) Authorized User’s use of the Deliverable in combination with any product or information not owned or developed by Contractor;

(d) Authorized User’s distribution, marketing or use for the benefit of third parties of the Deliverable; or (e) information, direction, specification or materials provided by Authorized User or any third party.

If a successful claim of infringement is made, or if the Contractor reasonably believes that an infringement claim that is pending may actually succeed, the Contractor will do one of the following four things, at Contractor’s option, so long as Contractor acts within thirty (30) days of notification of such claim or decision:

(i) Modify the Deliverable so that it no longer is infringing;

(ii) Replace the Deliverable with a non-infringing equivalent;

(iii) Acquire the right for the Authorized User to continue to use the Deliverable as it was intended for the Authorized User to use under this Contract; or

(iv) direct the removal and return to Contractor of the Deliverable and refund the fee the Authorized User paid for the Deliverable and the fee for any other Deliverable that required the availability of the infringing Deliverable for it to be useful for the Authorized User.

The remedies listed in this section constitute the sole remedies and Contractor’s entire liability with respect to infringement. The provisions of this section shall survive termination of this Contract.

22. SECURITY OF PREMISES, EQUIPMENT, DATA AND PERSONNEL

During the performance of Services under this Contract, the Contractor may have access to the personnel, premises, equipment, and other property, including data files, information, or materials (collectively referred to as “data”) belonging to the Authorized User. The Contractor shall implement safeguards designed to preserve the safety, security, and the integrity of the data of the Authorized User that is accessed, received from, or on behalf of the Authorized User by the Contractor in performance of the Services; provided that the foregoing does not obligate Contractor, to implement safeguards on any Authorized User hardware and software (including servers, network and data components); as such controls shall be the responsibility of the Authorized User.

Where applicable to its performance under an Order, Contractor shall provide a reasonable secure environment for the data and any hardware and software, including servers, network and data components, in accordance with ISO 27001 standards designed to prevent unauthorized access to and use or modification of, and to otherwise protect, the application and the Authorized User’s data.

Contractor shall, at a minimum, implement the following procedures designed to protect the security of the data:

User identification and access controls designed to limit access to data;

External connections to the World Wide Web that shall have appropriate security controls including industry standard intrusion detection and countermeasures that shall detect and terminate any unauthorized activity prior to entering the firewall maintained by the Contractor;

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ISO 27001 standard firewalls regulating data entering Contractor’s internal data network from external sources that shall enforce secure connections between internal and external systems and shall permit only specific types of data to pass through;

ISO 27001 standard encryption techniques that shall be used when data is transmitted by Contractor on behalf of the Authorized User;

Physical security measures, including securing all data on a secure server, in locked data cabinets within a secure facility. Access to facilities housing the data and Confidential Information restricted to only allow access to Contracted Personnel who have a need to know in connection with the operation of the application;

Regular training for contractor’s Contracted Personnel regarding the security and data recovery programs referenced in this Section;

Ensure all encrypted data is not decrypted by the Contractor unless specifically requested by the Authorized User.

23. RENDERING OF SERVICES, ACCEPTANCE AND INSPECTION

The Contractor shall render Services in accordance with the acceptance criteria defined by the parties in the applicable SOW/Order and related documents with all due skill, care, and diligence, in accordance with accepted industry practices and legal requirements, and to the Authorized User’s satisfaction; the Authorized User’s decision in that regard shall be final and conclusive. The Authorized User shall approve each Deliverable and may inspect, observe and examine the performance of the Services rendered on the Authorized User's premises at any time. The Authorized User or State may inspect, observe and examine the performance of Contractor’s Services at reasonable times, with reasonable written notice, at any other premises provided such inspection and observation does not cause any undue interference with Contractor operations at those premises.

The Authorized User shall have ten (10) days (or such other period agreed upon in the applicable Order) from the date of receipt of the Deliverables to accept or reject the same, notifying the Contractor in writing how the Services rendered or the Deliverables provided fail to comply with the agreed upon Order or SOW requirements other than as a result of the Authorized User’s Default or negligence. If the Authorized User does not accept or reject within the period provided above or uses the Deliverable in production after testing and acceptance, whichever occurs first, the Authorized User will be deemed to have accepted the Services and Deliverables. The Contractor shall at its own expense re-schedule and perform the work correctly within such reasonable time as the Authorized User specifies. This remedy shall be in addition to any other remedies available to the State by law or in equity.

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24. CONTRACTOR PERSONNEL

24.1 Identification

If requested by the Authorized User, the Contractor shall provide a list of the names of all Contractor’s employees, Contracted Personnel, or Subcontractor’s employees who may at any time require admission to the Authorized User’s premises in connection with the rendering of Services, specifying each such person’s connection to the Contractor, the role the person is to take in the performance of the Contract, and other particulars as the Authorized User may require. The Authorized User reserves the right to refuse to admit to the Authorized User's premises any person employed or contracted by the Contractor in the reasonable discretion.

24.2 Right to Approve Changes of Contracted Personnel

The Authorized User shall have the absolute right to approve or disapprove a proposed change of Key or Contracted Personnel on an Order. The Contractor shall provide to the Authorized User, in each instance a resume of the proposed substitute and an opportunity to interview that person prior to giving its approval or disapproval. The Authorized User shall not unreasonably withhold this approval.

24.3 Contracted Personnel Removal

The Authorized User may direct the Contractor to remove or reassign Key Personnel at the Authorized User's reasonable discretion; however, the Authorized User's right to do so does not implicate the Authorized User as a party to any of the Contractor's obligations in the Contract. The Authorized User may request that a Contracted Personnel be replaced within ten (10) Business Days from such removal.

24.4 Identification of Contracted Personnel

The Contractor shall furnish each Contracted Personnel with a means of identifying themselves as agents, Subcontractors, or employees of the Contractor assigned to perform Services under the Contract, and furnish the Authorized User with security credentials on these Contracted Personnel, if requested.

24.5 Background or Criminal History Investigation

Prior to the commencement of any Services under an Order this Contract, the Authorized User may request a background or criminal history investigation of Contracted Personnel, and Subcontractor’s employees, who will be providing Services to the Authorized User under the applicable Order to this Contract. The scope and applicable costs of the Background Checks will be pursuant to mutual agreement in the specific Order with that specific Authorized User. If any of the stated personnel providing Services to the Authorized User under the applicable Order is not acceptable to the Authorized User in its reasonable opinion as a result of its review of the results of the background or criminal history investigation, the Authorized User may request prompt replacement of the person.

25. SHIPPING

Except as otherwise specified herein, Deliverables shall be shipped, F.O.B. Destination, and the Authorized User shall accept legal title of Deliverables at the point of delivery. Freight charges shall not be paid by the Authorized User or State, but rather shall be prepaid by the Contractor. Unless otherwise specified, the Contractor shall determine the mode of freight and shall accept responsibility for payment of freight charges and processing of freight claims.

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26. RISK OF LOSS

The Contractor shall bear all risks of loss, injury or destruction of the Deliverables ordered herein that occur prior to delivery. Such loss, injury or destruction shall not release the Contractor from any obligation hereunder.

27. IDENTIFICATION

All invoices, packing lists, packages, shipping notices, instruction manuals, and other written documents affecting an order hereunder shall contain the applicable Authorized User Purchase Order number. Packing lists shall be enclosed in each and every box or package shipped pursuant to an order, indicating the contents therein. Standard commercial packaging, packing and shipping containers shall be used. If requested by the Authorized User, all shipping containers shall be legibly marked or labeled on the outside with Authorized User Purchase Order number, product description, and quantity, or as otherwise directed by the Authorized User.

28. LIENS, CLAIMS AND ENCUMBRANCES

The Contractor warrants and represents that all Deliverables ordered hereunder are free and clear of all liens, claims or encumbrances of any kind.

29. WARRANTY

Contractor warrants that Services rendered shall be materially in accordance with the Purchase Order placed and related documents (such as SOW) and that its Deliverables of original content will have no ‘Critical’ or ‘High’’ Defects. Deliverables delivered under this Contract are subject to Inspection and testing by the Authorized User upon receipt per Section 23.

Contractor will re-perform any Services or resolve any “Critical” or “High” Defects in Deliverables of original content which are not in compliance with this warranty if brought to its attention within thirty (30) days of the date the Services rendered and the Deliverables are accepted per Section 23.

The Contractor represents and warrants that all Services described in a Purchase Order and related documents shall be performed in a prompt, competent, and workmanlike manner by trained individuals in accordance with the standards of the Contractor’s industry.

Except for errors in configuration or where customization has been performed by Contractor that has not been incorporated into the SalesForce Software, the license agreement between the Authorized User and the third party vendor for the software being utilized under the scope of the SOW will indicate any further responsibilities. The Contractor is not the manufacturer or developer of third-party vendor software or hardware (“Third Party Products”, or ‘Products’) and Products provided are warranted solely under the terms and conditions of the third-party licenses or other agreements by which such Products are governed.

Contractor shall pass through or assign all applicable third party warranties (or indemnification rights, if any) for Deliverables to the State/Authorized User without any warranty by Contractor other than such assigned or pass-through warranties provided by such manufacturers or licensors.

If any third party Products and services are resold to the State/Authorized User by Contractor’s Third Party Resale Affiliate under a PO/SOW, such affiliate shall pass through to the State rights from the manufacturers or Contractors of such products and services (including warranty and indemnification rights). In no event does any Contractor warranty replace or supersede the warranties contained in such third-party licenses or other agreements by which such Products are governed.

CONTRACTOR DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING

WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

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30. RECEIPT OF GOODS

The…