Airstream_Communications_Contract.pdf

State of Wisconsin Contract # 505ENT-O19-BROADISP-04 1 of 22

CONTRACT FOR BROADBAND INTERNET SERVICE PROVIDER SERVICES

(Contract # 505ENT-O19-BROADISP-04)

BETWEEN

THE STATE OF WISCONSIN

DEPARTMENT OF ADMINISTRATION

AND

Airstream Communications, LLC This Contract is between the Department of Administration (“Department” or “DOA”), acting on behalf of the State of Wisconsin ("State") and Airstream Communications, LLC (“Contractor"), together referred throughout as “Parties”.

The Parties agree that this Contract contains the entire agreement of the parties and supersedes all prior communications, representations or agreements between the Parties, whether oral or written.

This Contract may not be modified or amended except by mutual agreement of both Parties in writing.

The State of Wisconsin’s requirements are provided in its Request for Bid 28301-SM and Contractor’s response as accepted by the State shall be incorporated into this Contract as Attachment 1. Final pricing documented in Appendix A: Cost Sheets shall be included as Attachment 2.

In the event of any conflict or contradiction between or among the enumerated documents, the documents shall control in the following order of precedent:

Any properly executed amendment or modification to the Contract Final Signed Contract with clarifications included and all attachments and appendices to the

Contract Contractor’s Acceptable Use Policy (where applicable) Applicable service exhibits and service level agreements (SLAs) of the Contractor Applicable price schedules or price tables of the Contractor Bid Response as accepted by the State of Wisconsin Request for Bid

Any exceptions to the State's proposed contract language contained in RFB 28301-SM noted in the Contractor's original Bid shall be considered void.

IN WITNESS WHEREOF, the Parties hereto by their duly authorized representatives have executed this Contract with full knowledge of and agreement with the terms and conditions of this Contract.

State of Wisconsin CONTRACTOR Department of Administration Airstream Communications, LLC

DocuSign Envelope ID: DC3858AB-D66B-428E-BC60-6B33E626736E

Scott Hoffmann

2/28/2019 | 12:58 PM CST

CEO

DocuSign Envelope ID: 1870A910-72B0-4685-B39E-5EF7820F17F8

4/15/2019 | 10:26 AM CDT

Deputy Secretary

Chris Patton

State of Wisconsin Contract # 505ENT-O19-BROADISP-04 2 of 22

Table of Contents

1. Scope of Contract

2. Definitions

3. Applicable Law

4. Term

5. Provision of Services

6. Performance

7. Payment Terms and Invoicing

8. State Payment Offsets for Contractor’s Delinquency

9. Contractor Compliance and Responsibility for Actions

10. Delay and Remedy

11. Conflict of Interest

12. Contract Cancellation

13. Termination for Cause

14. Termination for Convenience

15. Termination Due to Change in Law

16. Transition Services

17. Amendment or Modification of Contract

18. Cooperation with Other Contractors

19. Access to Facilities

20. Site Rules and Regulations

21. Contractor Staffing Requirements

22. Identification of Contracted Personnel

23. Time and Expense Policy

24. Security of Premises, Equipment and Personnel

25. Background or Criminal History Investigation

26. Confidential, Proprietary and Personally Identifiable Information

27. Indemnification

28. Intellectual Property Infringement

29. Acceptance/Inspection

30. Nondiscrimination and Affirmative Action

31. Insurance Responsibility

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State of Wisconsin Contract # 505ENT-O19-BROADISP-04 3 of 22

32. Foreign Corporation

33. Independent Contractor

34. Records, Recordkeeping and Record Retention

35. Examination of Records

36. Notice of Change in Financial Condition

37. Ownership

38. Notification

39. Contract Administration

40. Promotional Advertising and News Releases

41. Anti-Trust Assignment

42. Assignment of Contract

43. Contract Dispute Resolution

44. Breach Not Waiver

45. No Agency Relationship

46. Non-Appropriation of Funds

47. Force Majeure

48. Severability

49. Limitation of Liability

50. Reporting

51. Entire Agreement

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State of Wisconsin Contract # 505ENT-O19-BROADISP-04 4 of 22

1. Scope of Contract

This Contract provides a purchasing vehicle for State Agencies and Authorized Users (together referred to throughout as Contract Users) to procure broadband internet service provider (ISP) services (both transport and transit) through a Contract in the following categories:

Category 3: DOA/DET Data Center locations

The Contractor shall provide the Services set forth herein as set forth in Contractor’s Response to the RFB as accepted by the State and as specifically set forth in this Contract.

2. 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 of the words and terms.

“Acceptable Use Policy” means Contractor’s Acceptable Use Policy (“AUP”) which applies to: (i) Services provided over or accessing the public Internet; and (ii) wireless (e.g. cellular) data and messaging services that access the public Internet.

“Acceptance Period” means the timeframe in which the Contractor shall provide the required services free of error or interruption.

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

“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 any State Agency, University of Wisconsin Campus, or other state or local public body authorized to use Contracts, as established in §§16.70 (1b), (1e), (2), (4) and (8), 16.73, and

66.0301 of the Wisconsin Statutes and §PRO-D-30 of the State Procurement Manual.

“Bid” means the complete response of a Bidder submitted on the approved forms and setting forth the Bidder’s prices for providing the services described in the RFB.

“Bidder” means any individual, company, corporation, or other entity that responds to this RFB.

“Bureau” means the State Bureau of Procurement.

“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 in connection with this Contract, in any form or medium (and without regard to whether the information is owned by the State, the Contractor or by a third party), that satisfy at least one of the following criteria: (i) Personally Identifiable Information; (ii) Proprietary Information; (iii) non-public information related to the State’s or Contractor’s employees, customers, 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 the State or the Contractor. Confidential Information includes all information that is restricted or prohibited from disclosure by state or federal law.

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State of Wisconsin Contract # 505ENT-O19-BROADISP-04 5 of 22

“Contract” means the written agreement between the State and Contractor(s) that covers delivery of work to be performed subsequent to this RFB.

“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.

“Contract User” is a collective term referring to any and all customers of the contract including Agencies and Authorized Users.

“Contractor” means a Bidder that is awarded a Contract under RFB 28301-SM.

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

“Default” means the omission or failure to perform a contractual duty or provide Deliverables or render Services 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 State of Wisconsin unless otherwise specified in the Contract.

“Department” means the Department of Administration.

“Division” means a sub-unit of a state agency; an organizational unit internal to a state agency.

“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.

“Inspection” means an examination of Deliverables or Services provided under this Contract in order to determine their conformance to the Contract and applicable Service Exhibit(s).

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

“MBE” means Minority Business Enterprise.

“Market Basket” means a combination of price components used to compare Bid pricing and determine Contract awards.

“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 information, 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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State of Wisconsin Contract # 505ENT-O19-BROADISP-04 6 of 22

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 State’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 State’s standard document of a purchase of Deliverables and Services.

Any State Purchase Orders issued for Services as provided under this Contract must clearly provide that the purchase is made via the mutually agreed contract documents and not subject to the preprinted terms of that Purchase Order form.

“Request for Bid (RFB)” means the competitive procurement process used by the State to establish a Contract for the corresponding goods and services. For this Contract, RFB means RFB #28301-SM, Request for Bid – Broadband Internet Service Provider (ISP) Services issued by the Wisconsin Department of Administration on August 23, 2018.

“SBOP” means the Department of Administration’s State Bureau of Procurement.

“Services” - means all labor, actions, recommendations, plans, research, customizations, modifications, documentation, and maintenance and support provided by the Contractor necessary to fulfill that which the Contractor is obligated to accomplish under the Contract.

“SLA” – means Service Level Agreement

“SLG” – means Service Level Guarantees.

“SOW” means Statement of Work.

“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 entity that enters into a Subcontract with the Contractor for the purpose of delivering Deliverables or rendering Services to the State under this Agreement.

3. 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.

4. Term The initial term of this Contract shall be for three years from the effective date. This Contract is eligible for two mutually agreed upon one-year renewals, unless terminated as provided herein.

5. Provision of Services The Contractor shall provide the Services set forth herein with all due skill, care, and diligence, in accordance with accepted industry practices, legal requirements, and all applicable Contractor service level agreements (SLAs) or guides which must, at a minimum, conform with the State’s mandatory performance requirements as set forth in RFB 28301-SM the SOW attached hereto and incorporated herein as Attachment A and the AUP (where applicable) attached hereto and incorporated herein as Attachment B. The State may inspect, observe and examine the performance of the Services performed on the State's premises at any time. If the State notifies the Contractor that any part of the Services rendered in any way fail to meet the Contract requirements for any reason other than as a result of the State’s misrepresentation with regard to or noncompliance with the terms of this Agreement, State’s failure to comply with applicable law, and/or State’s negligence or willful

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State of Wisconsin Contract # 505ENT-O19-BROADISP-04 7 of 22 misconduct actions, or inactions, the Contractor shall at its own expense re-schedule and perform the Services correctly within such reasonable time as the State specifies. This remedy shall be in addition to any other remedies available to the State by law or in equity.

6. Performance

Services rendered under this Contract shall be performed in a timely, professional and diligent manner by qualified and efficient personnel and in conformity with the strictest quality standards mandated or recommended by all generally recognized organizations establishing quality standards for Telecommunication Services to be rendered hereunder. The Contractor shall be solely responsible for controlling the manner and means by which it and its Contracted Personnel or its Subcontractors perform the Services, and the Contractor shall observe, abide by, and perform all of its obligations in accordance with all applicable legal requirements and State or Agency work rules, which have been previously provided to Contractor for review.

Without limiting the foregoing, the Contractor shall control the manner and means of the Services and perform the Services in a reasonably safe manner and in compliance with all applicable codes, regulations and requirements imposed or enforced by any government agencies, including all applicable requirements of the Occupational Safety and Health Administration (OSHA) and all safety codes and procedures mandated or recommended by insurance underwriting organizations and all generally recognized organizations establishing safety standards, including without limitation the National Fire Protection Association, for services of the type to be performed under this Contract. Notwithstanding the foregoing, any stricter standard provided in plans, specifications or other documents incorporated as part of this Contract shall govern.

7. Payment Terms and Invoicing All invoices shall include a reasonably detailed description of Services rendered. The Contract User reserves the right to determine the format of, and reasonable level of detail included within, these invoices.

Prices set forth in the Contract are exclusive of and Contract User will pay all applicable taxes (excluding those on Contractor’s net income) and surcharges or recovery fees except to the extent Contract User is exempt from payment of such taxes, fees and surcharges under applicable law. If a Contract User is so exempt, it will provide Contractor with a valid exemption certificate. If there is a legal or regulatory change that creates new or alters the interpretation of the applicability of existing taxes, fees and surcharges to the Services, such taxes, fees or surcharges will apply. Additional special construction and / or cost recovery charges may also apply.

If a Contract User fails to pay a Properly Submitted Invoice within thirty (30) days of receipt, it shall pay a late payment penalty as provided in s. 16.528, Wis. Stats. However, if a State Agency declares a good faith dispute in regard to an invoice pursuant to s. 16.528 (3)(e), Wis. Stats., it may pay any undisputed portion of said invoice, and will be exempt from the prompt payment requirement for the disputed portion. Authorized Users may also be subject to similar provisions under applicable law.

Contract User will not be required to pay charges for Services initially invoiced more than 6 months after close of the billing period in which the charges were incurred, except for calls assisted by an automated or live operator. If Contract User disputes a charge, Contract User will provide notice to Contractor specifically identifying the charge and the reason it is disputed within twelve (12) months after the date of the invoice in which the disputed charge initially appears, or Contract User waives the right to dispute the charge.

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State of Wisconsin Contract # 505ENT-O19-BROADISP-04 8 of 22

8. State Payment Offsets for Contractor’s Delinquency

The State shall offset payments made to the Contractor under this Contract 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 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.

9. Post Contract Obligations

Upon the 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 date of termination or expiration, except for those that by their terms survive such termination or expiration.

10. Contractor Compliance and Responsibility for Actions

The Contractor 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 that may affect the Contractor’s work or obligations hereunder.

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

11. Delay and Remedy

If the Contractor fails to remedy any delay or other problem in its performance of its Contract obligations after receiving thirty (30) days written notice from the Contract User to do so, the Contractor shall reimburse the Contract User for all reasonable costs incurred as a direct consequence of the Contractor’s delay, action, or inaction. In case of failure to deliver Deliverables or perform Services in accordance with this Contract, the State, upon thirty (30) days written notice to the Contractor, may procure such Deliverables or Services from other sources as necessary, and the Contractor shall be responsible for the additional cost, including the cost of re-procurement, purchase price and administrative fees. This remedy shall be in addition to any other legal remedies available to the State

12. Conflict of Interest

The Contractor shall comply with all provisions of Chapters 180 and 181 of the Wisconsin Statutes regarding conflicts of interests by directors if the Contractor is a private and/or nonprofit corporation.

13. Contract Cancellation

(a) 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.

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(b) The State reserves the right to cancel this Contract in whole or in part without penalty, with (thirty) 30 days’ written 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 subch. II, Chapter 111 of the Wisconsin Statutes (Wisconsin’s Fair Employment Law); or

Becomes a state or federally debarred contractor.

14. Termination for Cause

The State may terminate this Contract, in whole or part, after providing the Contractor with thirty (30) Days written notice of the Contractor’s right to cure a failure of the Contractor to perform under the terms of this Contract, if such failure has not been cured. Upon the 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 date of termination or expiration, except for those that by their terms survive such termination or expiration. 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 of the State to perform under the terms of this Contract, if such failure has not been cured.

15. Termination for Convenience

Either party may terminate this Contract at any time, without cause, by providing a written notice to the other party at least sixty (60) 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. Compensation for partially completed Services shall be no more than the percentage of completion of the Services requested, as determined by the State in its sole discretion, multiplied by the corresponding payment for completion of such Services as set forth in the Contract. Additional Special Construction and / or cost recovery may apply. Alternatively, at the sole discretion of the State, the Contractor may be compensated for the actual Service hours provided. The State shall be entitled to a refund for Deliverables or Services paid for but not received or rendered, such refund to be paid within two billing cycles following written notice to the Contractor requesting the refund.

16. Termination Due to Change in Law

This Contract may be terminated either by mutual agreement or at the discretion of the State following any amendment to, or judicial interpretation of, Federal or State law that:

Renders performance, enforcement or compliance with the totality of the Contract impossible, patently unreasonable, or unnecessary

Renders accomplishment of the Contract’s objectives impossible, patently unreasonable, or unnecessary.

In the event State terminates this Contract in whole or in part due to the above event, the State shall pay Contractor for all fees for services rendered and any outstanding costs for construction, installation, equipment etc. owed to Contractor up to the date of termination.

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State of Wisconsin Contract # 505ENT-O19-BROADISP-04 10 of 22

17. Transition Services

Upon cancellation or termination of this Contract for any reason, the Contractor shall provide such reasonable cooperation, assistance and Services, and will assist the State in the migration of the State’s production operations to the State’s control or to the control of an alternative contractor upon written notice to the Contractor at least sixty (60) business days prior to termination or cancellation, and subject to the terms and conditions set forth herein. This Contract shall automatically be extended by the number of days training or continued Services are necessary to be performed in order to complete transition. The Contractor’s Services required to complete transition after the notice set forth herein shall be within this Contract’s scope and shall not be the subject of any Change Order, however, the State shall pay Contractor for such extension of services at the established Contract rates.

18. Amendment or Modification of Contract

This Contract may be amended by the State and the Contractor by mutual agreement, in writing. In no event shall the Contractor be paid or be entitled to payment for Services that is not authorized herein or any properly executed amendment.

19. Cooperation with Other Contractors

In the event that the Contract User enters into a contract with another contractor for additional Services, the Contractor shall ensure that Contracted Personnel fully cooperate with such other contractor. Contracted Personnel shall not commit any act that interferes with the rendering of Services by any other contractor or by the State. Contracted Personnel shall cooperate with State personnel, hardware manufacture representatives, system software suppliers, and communications systems suppliers in the provision of Services to the State. Contractor will endeavor to work cooperatively with other providers but will not be responsible for delays due to any fault of the State and/or any contractor or subcontractor employed by the State, or for problems resulting from causes beyond the reasonable control of Contractor.

20. Access to Facilities

Unless otherwise agreed by the parties, any and all access by Contracted Personnel to the facilities of the Contract Users shall be during its normal office hours and all Contracted Personnel shall be subject to the Contract User’s reasonable site security procedures of which such procedures have been provided to Contractor in advance and/or shall be clearly posted for all visitors.

Contract User will in a timely manner allow Contractor access as reasonably required for the Services to property and equipment that Contract User controls and will assist with obtaining timely access for Contractor as reasonably required for the Services to property controlled by third parties such as Contract User’s landlord. Contractor will coordinate with and, except in an emergency, obtain Contract User’s consent to enter upon Contract User’s property and premises, which consent shall not be unreasonably withheld. Access rights mean the right to construct, install, repair, maintain, replace and remove access lines and network facilities and the right to use ancillary equipment space within a building for Contract User’s connection to Contractor’s network. Contract User must provide Contractor timely information and access to Contract User’s facilities and equipment as Contractor reasonably requires for performance of the Services, subject to Contract User’s reasonable security policies.

Contract User will furnish any conduit, holes, wireways, wiring, plans, equipment, space, power/utilities and other items as Contractor reasonably requires for the Services inside the premise and will work cooperatively with the Contractor to obtain any necessary licenses, permits and consents (including easements and rights-of-way) for property and equipment that the Contract User controls and/or owns.

For property and equipment that the Contract User does not control or own, Contract User may assist

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State of Wisconsin Contract # 505ENT-O19-BROADISP-04 11 of 22 with obtaining requisite licenses, permits and consents. Alternatively, where Contractor obtains such, Contract User shall pay the applicable non-recurring charges.

Contract User will ensure that the location at which Contractor installs, maintains or provides Services is a safe working environment, free of Hazardous Materials and reasonably suitable for the Services.

“Hazardous Materials” mean any substance or material capable of posing an unreasonable risk to health, safety or property or whose use, transport, storage, handling, disposal or release is regulated by any law related to pollution, to protection of air, water or soil or to health and safety. Contractor shall have no obligation to perform work at a location that is not a suitable and safe working environment or to handle, remove or dispose of Hazardous Materials.

21. Site Rules and Regulations

Contractor shall use its commercially reasonable efforts to assure that Contracted Personnel, employees, and agents, while on the Contract User’s premises or in the presence of State employees, comply with the Contract User’s work rules and regulations of which such rules and regulations have been provided to Contractor in advance and/or shall be clearly posted for all visitors applicable to the work site.

Neither party shall require waivers or releases of any personal rights from representatives of the other in connection with visits to its premises and no such releases or waivers shall be pleaded by them in any action or proceeding.

22. Contractor Staffing Requirements

The Contractor shall employ professional staff to perform or manage the functions described in RFB # 28301-SM in accordance with the Performance Standards set forth in Section 6 of this Agreement. The assignment of such Contracted Personnel shall be disclosed to the Contract User and Contract User may indicate any concern regarding the Contracted Personnel to Contractor. In the event the Contract User determines it necessary to request removal or reassignment of any staff to its Contract account, the Contract User will request corrective action from the Contractor. Contractor retains the right to manage and deploy its personnel as appropriate from time to time. If the State requests Contractor to substitute any Contracted Personnel, the State shall provide such requests in writing, explaining in reasonable detail the reason(s) for the removal request. Any such request shall be for lawful reasons.

Contractor will work with the State to reach a solution geared to providing the Services in compliance with the contracted performance standards.

23. 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 State with commercially reasonable security credentials on these Contracted Personnel, if requested.

24. Time and Expense Policy

The Contractor shall not be paid for the following items for Contracted Personnel: (i) travel time between their place of residence and place of work; (ii) parking fees; or (ii) out-of-pocket expenses incurred for travel to the place of work. The State does not anticipate Contracted Personnel incurring any travel expenses related to the performance of the Services required under this Contract. However, should such a situation arise, reimbursement of travel expenses incurred at the Contract User’s express request shall be authorized in writing by the Contract User beforehand. All approved travel expenses shall be at the established Contract User rates. The Contractor or the Contracted Personnel shall be

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State of Wisconsin Contract # 505ENT-O19-BROADISP-04 12 of 22 responsible for all parking fees, permits, and additional costs associated with visiting a Contract User site for any reason.

25. Security of Premises, Equipment 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 State or the Contract User. The Contractor shall preserve the safety, security, and the integrity of the personnel, premises, equipment, data and other property of the State, in accordance with the instruction of the State or Contract User, as applicable.

The Contractor shall be responsible for damage to the State's equipment, workplace, and its contents, or for the loss of data, when such damage or loss is caused by the Contractors’, Contracted Personnels’, or Subcontractors’ gross negligence or willful misconduct at the applicable site during the installation or maintenance of the Services and shall reimburse the State accordingly upon demand. This remedy shall be in addition to any other remedies available to the State by law or in equity.

Contractor shall maintain and implement commercially reasonable network and data security procedures and controls with respect to the Services provided under this Contract and with respect to any data in systems owned or managed by Contractor. Specifically, Contractor shall maintain and implement commercially reasonable organizational, administrative, technical, physical and logical safeguards designed to protect Contractor’s network, systems, databases, equipment, files, and locations against unlawful or unauthorized access or intrusion by third parties. While Contractor’s network and data security procedures and controls are designed to protect Contractor-owned and Contractor-managed networks and systems, Contractor does not guarantee network security, the encryption employed by any Service, the integrity of any data sent, backed up, stored or subject to load balancing, and/or that Contractor's security procedures and controls will prevent unlawful or unauthorized access to or theft, loss, alteration or destruction of State data or information. The State shall maintain and implement commercially reasonable security procedures and controls to protect its own data, including but not limited to the employment of adequate encrypting and/or camouflaging technologies, and in no event shall Contractor be liable for any damages or losses that could have been prevented by such measures.

26. Rendering of Services

The Contractor shall render Services with all due skill, care, and diligence, in accordance with accepted industry practices and legal requirements, and to the State’s satisfaction; the State’s decision in that regard shall be final and conclusive. The State may inspect, observe and examine the performance of the Services rendered on the State's premises at any time. The State may inspect, observe and examine the performance of Contractor’s Services at reasonable times, without notice, at any other premises.

If the State notifies the Contractor that any part of the Services rendered are inadequate or in any way differ from the Contract requirements for any reason other than as a result of the State’s Default or negligence, the Contractor shall at its own expense re-schedule and perform the work correctly within such reasonable time as the State specifies. This remedy shall be in addition to any other remedies available to the State by law or in equity.

27. Contractor Personnel

(a) Identification. If requested by the State, the Contractor shall provide a list of the names and addresses of all Contractor’s employees, Contracted Personnel, or Subcontractor’s employees who may at any time require admission to the State’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 State may require.

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The State reserves the right to refuse to admit to the State's premises any person employed or contracted by the Contractor whose admission, in the sole opinion of the State, would be undesirable.

(b) Right to Approve Changes of Contracted Personnel. The State shall have the absolute right to approve or disapprove a proposed change of Key or Contracted Personnel. The Contractor shall provide to the State, in each instance a resume of the proposed substitute and an opportunity to interview that person prior to giving its approval or disapproval. The State shall not unreasonably withhold this approval.

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

(d) 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 State with security credentials on these Contracted Personnel, if requested.

28. Background or Criminal History Investigation

Prior to the commencement of any Services under this Contract, the Contract User may request a background or criminal history investigation of any of the Contractor’s employees, Contracted Personnel, and Subcontractor’s employees, who will be providing Services to the State under the Contract. If any of the stated personnel providing Services to the State under this Contract is not acceptable to the State in its sole opinion as a result of the background or criminal history investigation, the State may either request immediate replacement of the person in question, or, if the Contractor refuses to replace the person in question, immediately terminate this Contract and any related Service Agreement.

29. Confidential, Proprietary and Personally Identifiable Information

29.1. Duty of Non-Disclosure and Security Precautions

Contractor shall not use Confidential Information for any purpose other than the limited purposes set forth in the Contract. Contractor shall hold the Confidential Information in confidence, and shall not disclose such Confidential Information to any persons other than those directors, officers, employees, and agents (“Representatives”) 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 information in accordance with the terms of this Contract. Contractor shall be responsible for the breach of this Contract by any of its Representatives.

Contractor shall institute and/or maintain such procedures as are reasonably required to maintain the confidentiality of the Confidential Information, and shall apply the same level of care as it employs to protect its own confidential information of like nature.

Contractor shall ensure that all indications of confidentiality contained on or included in any item of Confidential Information shall be reproduced by Contractor on any reproduction, modification, or translation of such Confidential Information. If requested by the State or the Contract User, Contractor shall make a reasonable effort to add a proprietary notice or indication of confidentiality to any tangible materials within its possession that contain Confidential Information of the Contract User or the State, as directed.

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Contractor is not deemed to have received, accessed or possessed any of Contract User’s Confidential Information merely through the Contract User’s use of Contractor’s Services.

If requested in writing by the Contract User or the State, Contractor shall return or destroy all Personally Identifiable Information it holds upon termination of this Contract.

Contractor’s information may only be disclosed as required by applicable law.

29.2. Limitations on Obligations

The obligations of confidentiality assumed by Contractor pursuant to this Contract shall not apply to the extent Contractor can demonstrate that such information:

is part of the public domain without any breach of this Contract by Contractor;

is or becomes generally known on a non-confidential basis, through no wrongful act of

Contractor;

was known by Contractor prior to disclosure hereunder without any obligation to keep it confidential;

was disclosed to it by a third party which, to the best of Contractor’s knowledge, is not required to maintain its confidentiality;

was independently developed by Contractor; or is the subject of a written agreement whereby the Contract User consents to the disclosure of such Confidential Information by Contractor on a non-confidential basis.

29.3. Legal Disclosure

If Contractor or any of its Representatives shall be under a legal obligation in any administrative, regulatory or judicial circumstance to disclose any Confidential Information, Contractor shall give the State prompt notice thereof (unless it has a legal obligation to the contrary) so that the State may seek a protective order or other appropriate remedy. In the event that such protective order is not obtained, Contractor and its Representatives shall furnish only that portion of the information that is legally required and shall disclose the Confidential Information in a manner reasonably designed to preserve its confidential nature.

29.4. Unauthorized Use, Disclosure, or Loss

If Contractor becomes aware of any disclosure of any Confidential Information that is in violation of this Contract, or if any Confidential Information is lost or cannot be accounted for, Contractor shall notify the State’s Contract Manager or Contact-Liaison/Privacy Officer without unreasonable delay but not later than three (3) business days after the Contractor becomes aware of such use, disclosure, or loss. Such notice shall include, to the best of the Contractor’s knowledge at that time, the persons affected, their identities, and the Confidential Information disclosed.

The Contractor shall take immediate steps to mitigate any harmful effects of the unauthorized use, disclosure, or loss. The Contractor shall reasonably cooperate with the State's efforts to seek appropriate injunctive relief or otherwise prevent or curtail such threatened or actual breach, or to recover its Confidential Information.

If the unauthorized use, disclosure, or loss is of Personally Identifiable Information, or reasonably could otherwise identify individuals, and the unauthorized use, disclosure, or loss is solely attributable to Contractor, Contractor shall, at its own cost, take any or all of the following measures that are legally or otherwise reasonably required to protect impacted individuals:

Notify the affected individuals by mail or the method previously used by the State to communicate with the individual. If the Contractor cannot with reasonable diligence determine

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State of Wisconsin Contract # 505ENT-O19-BROADISP-04 15 of 22 the mailing address of the affected individual and the State has not previously contracted with that individual, the Contractor shall provide notice by a method reasonably calculated to provide actual notice.

Notify consumer reporting agencies of the unauthorized release.

Offer credit monitoring and identity theft insurance to affected individuals from a company, and under reasonable terms, acceptable to the State (which acceptance shall not be unreasonably withheld) for one year from the date the individual enrolls in credit monitoring.

Provide a customer service or hotline to receive telephone calls and provide assistance and information to affected individuals during mutually agreed upon business hours that meet the needs of the affected individuals, as established by the State.

29.5. Remedies for Breach of this Section

Equitable Relief: The Contractor acknowledges and agrees that the unauthorized use, disclosure, or loss of Confidential Information may cause immediate and irreparable injury to the individuals whose information is disclosed and to the State, 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 State, on its own behalf or on behalf of the affected individuals, shall be entitled to obtain 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.

29.6. Compliance Reviews

The State may conduct a compliance review of the Contractor’s applicable security procedures as directly related to an Agreement between the parties to protect Confidential Information under this Section 296 of this Contract.

30. Indemnification

Contractor agrees, at its own expense, to indemnify, defend and hold harmless State and its affiliates, directors, employees, representatives, officers and agents, (the “State Indemnified Parties”) against any and all third party claims, lawsuits, judgments, and related costs, fees and expenses incurred by State Indemnified Parties (including but not limited to, reasonable attorneys’ fees and court costs), to the full extent that such arise directly from: (1) Contractor’s failure to comply with applicable law and (2) physical damage to personal or real property caused by the negligent or willful misconduct of Contractor, its employees or contractors, at the Contract Users’ site(s) during the installation or maintenance of the Equipment. State Indemnified Parties shall have the right but not the obligation to participate in the defense of the claim at the State’s cost and Contractor agrees to reasonably cooperate with the State Indemnified Parties in such case.

31. Intellectual Property Infringement

Contractor will defend and may settle, at its own expense, any third party claim or suit against Contract User alleging that any Contractor Services furnished under this Agreement when used in conformity with all instructions and documentation, prospectively infringes any valid United States patent or copyright issued or in effect as of the effective date of this Contract. Contractor will also pay all damages and costs that by final judgment may be assessed against any Contract Users due to such infringement, except that Contractor will have no liability or responsibility hereunder for any measure of costs or damages calculated upon Contract User’s revenue or sales volume. Contractor’s obligations are expressly conditioned upon the following: (a) that Contract Users will promptly notify Contractor in writing of any allegation or notice of alleged infringement; (b) that Contractor will have sole control and authority of the defense or settlement; (c) that Contract Users will cooperate with Contractor in a

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State of Wisconsin Contract # 505ENT-O19-BROADISP-04 16 of 22 reasonable way to facilitate the settlement or defense; and (d) that the action does not arise from modifications to the Service made by a party other than Contractor, or from use of the Products and Services other than in accordance with this Contract or other written documentation and instructions provided by Contractor, or combinations of Products or Services provided by Contractor with other products or services or transmission of customer-supplied content, data, or other information that gives rise to the claim.